ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 73/18

Action brought on 22 December 2011 — European Commission v Republic of Cyprus

(Case C-662/11)

2012/C 73/33

Language of the case: Greek

Parties

Applicant: European Commission (represented by: E. Montaguti and G. Zavvos)

Defendant: Republic of Cyprus

Form of order sought

— declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Article 24 of, in conjunction with Annex VII to, the Act of Accession of the Republic of Cyprus relating to the removal of the restrictions existing in its national legislation that concern the acquisition by EU/EEA nationals of residences for secondary use, by 1 May 2009 at the latest, and in any event by not notifying those provisions to the Commission, the Republic of Cyprus has failed to fulfil its obligations under that act;

— order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

The Commission submits that, in view of Article 24 of, in conjunction with Annex VII to, the Act of Accession of the Republic of Cyprus to the European Union, the authorities of the Republic of Cyprus had to bring into force by 1 May 2009 at the latest the laws, regulations and administrative provisions necessary in order that the restrictions in force in its national legislation placed upon the acquisition by EU/EEA nationals of residences for secondary use are removed. Those restrictions constitute a direct infringement of the free movement of capital as laid down in Article 63 of the Treaty on the Functioning of the European Union.

The Cypriot Government sent a draft law concerning amendment of the restrictions in force, and maintains that it has been submitted for approval to the Council of Ministers with the objective of it being examined as rapidly as possible and being transmitted to the parliament to be voted upon.

The Commission observes that the infringement of a freedom enshrined by the Treaty by provisions of a Member State’s national legislation can be removed only by the adoption of equally binding provisions. Therefore, the enclosing of a mere draft law, which has not acquired any legislative force, with the Republic of Cyprus’s letter in response cannot be equated to a binding act removing the provisions in force regarding the acquisition by EU/EEA nationals of residences for secondary use.

The Commission submits that, by not adopting the laws, regulations and administrative provisions necessary for the removal of the restrictions existing in its national legislation that concern the acquisition by EU/EEA nationals of residences for secondary use or in any event by not notifying those provisions to the Commission, the Cypriot Government has failed to fulfil its obligations to comply with Article 24 of the Act concerning the conditions of accession of the Republic of Cyprus, in conjunction with Annex VII to that act relating to the transitional provisions that concern Cyprus.
EN Official Journal of the European Union C 65/4

Appeal brought on 29 November 2011 by European Commission against the judgment of the General Court (Fifth Chamber) delivered on 29 September 2011 in Case T-442/07: Ryanair Ltd v European Commission, supported by Air One SpA

(Case C-615/11 P)

2012/C 65/08

Language of the case: English

Parties

Appellant: European Commission (represented by: L. Flynn, D. Grespan, S. Noë, Agents)

Other parties to the proceedings: Ryanair Ltd, Air One SpA

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Fifth Chamber) of 29 September 2011, notified to the Commission on 30 September 2011, in Case T-442/07 Ryanair Ltd v European Commission in so far as it declares that the Commission of the European Communities failed to fulfil its obligations under the EC Treaty by failing to adopt a decision in respect of the transfer of the 100 Alitalia employees complained of in the letter;

— reject the application for a declaration of failure to act by the Commission of the European Communities in failing to adopt a decision in respect of the transfer of the 100 Alitalia employees, complained of in the letter of 16 June 2006 sent to the Commission by Ryanair Ltd;

— order Ryanair Ltd to pay the costs;

— alternatively, — refer back the case to the General Court for reconsideration; — reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The appellant submits that the contested judgment should be set aside on the following grounds:

— Misinterpretation of Articles 10(1) and 20(2) of Regulation (EC) No 659/1999 (1). The General Court erred in law when it set out the criteria that determine if the Commission is in possession of information or a complaint about alleged unlawful aid;

— Error in the legal qualification of Ryanair's letter of 16 June 2006. The General Court concluded that the Commission had received a complaint or information regarding alleged unlawful aid in the form of the letter of 16 June 2006. The Commission considers that in so doing the General Court erred in law by reason of a mistaken qualification of that letter;

— Error in law in ascertaining whether the Commission was under a duty to act for the purposes of Article 232 EC by reference to the requirements of Article 20(2) of Regulation (EC) No 659/1999.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty
2.1.

Must Article 5(1) and Article 8(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks be interpreted as meaning that, where the proprietor of a registered mark ends its undertaking to a third party not to use that mark for certain goods and thus intends to recommence that use itself, the national court can none the less definitively prohibit it from recommencing that use of the mark on the ground that it amounts to unfair competition because of the resulting advantage to the proprietor of the publicity previously made for the mark by the third party and possible confusion in customers’ minds, or must they be interpreted as meaning that the national court must adopt a different penalty which does not definitively prohibit the proprietor from recommencing use of the mark?
EN Official Journal of the European Union C 133/15

Appeal brought on 6 December 2011 by Brighton Collectibles, Inc. against the judgment of the General Court (Second Chamber) delivered on 27 September 2011 in Case T-403/10 Brighton Collectibles v OHIM — Felmar

(Case C-624/11 P)

2012/C 133/27

Language of the case: French

Parties

Appellant: Brighton Collectibles, Inc. (represented by: J. Horn, avocat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Felmar

Form of order sought

— Set aside the judgment of the General Court in Case T-403/10;

— Order OHIM to bear its own costs and those of the appellant;

— Order Felmar to bear its own costs if it intervenes in the proceedings.

Pleas in law and main arguments

By the present appeal, the appellant claims that the General Court failed to make a valid assessment of the evidence the appellant submitted to it and failed to give sufficient reasons for its decision with regard to the national laws relied upon, in particular, Irish and UK case-law relating to passing off. Consequently, the General Court infringed the provisions of Article 8(4) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1)

(1) OJ 2009 L 78, p. 1.
1.

Must the provisions of Directive 2002/73/EC (1) of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and of the Framework Agreement on Parental Leave included in annex to Council Directive 96/34/EC (2) of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC be interpreted as meaning that an employer is precluded from undertaking any action (in particular, the assessment of an employee while absent) which might result in a female employee on parental leave losing her post after returning to work?
1.

In cases in which a trader’s internet presence satisfies the ‘directing’ requirement, does Article 15(1)(c) of Regulation (EC) No 44/2001 (1) require, as a further unwritten condition, that the consumer was induced to enter into the contract by the website operated by the trader and consequently that the internet presence must be a causal factor in regard to the conclusion of the contract?
EN Official Journal of the European Union C 73/24

Appeal brought on 26 January 2012 by Monster Cable Products, Inc. against the judgment of the General Court (Fourth Chamber) delivered on 23 November 2011 in Case T-216/10: Monster Cable Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Live Nation (Music) UK Limited

(Case C-41/12 P)

2012/C 73/41

Language of the case: English

Parties

Appellant: Monster Cable Products, Inc. (represented by: O. Günzel, A. Wenninger-Lenz, Rechtsanwältin)

Otherparties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Live Nation (Music) UK Limited

Form of order sought

The appellant claims that the Court should order:

— the judgment of the General court (Fourth Chamber) of the European Union of 23 November 2011 in Case T-216/10 shall be set aside;

— the defendant to pay the costs of the Appellant.

Pleas in law and main arguments

The appellant submits that by dismissing the action on the grounds laid down in the Judgment of 23 November 2001, the General Court failed to take account of all the factual background and circumstances of the proceedings, resulting in the Judgment under appeal being based on incomplete facts. Therefore, the Judgment lacks the mandatory overall assessment of all factors that must be taken into account in assessing likelihood of confusion. The Judgment is therefore erroneous and infringes Article 8 (1) (b) of Regulation No. 40/94 (1).

In the appellant's view, had a proper overall assessment been made, the General Court would have come to the conclusion that the decision of the First Board of Appeal of 24 February 2010 violates Article 8 (1) (b) CTMR (2). In summary, the appellant submits that Article 8 (1) (b) of Regulation No. 40/94 has been infringed for the following reasons:

Failure to take account of ‘the average specialized consumer in the United Kingdom’ as being the relevant public in relation to which the analysis of the likelihood of confusion must be carried out;

Misapplication of established legal principles for assessing similarity of goods;

Violation of the principles according to which, in order to assess likelihood of confusion, consideration should be given to all factors relevant to the individual case and, inter alia, to the distinctive character of the earlier mark.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1

(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1
EN Official Journal of the European Union C 165/9

Appeal brought on 5 March 2012 by Bernhard Rintisch against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2011 in Case T-62/09: Bernhard Rintisch v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-120/12 P)

2012/C 165/15

Language of the case: English

Parties

Appellant: Bernhard Rintisch (represented by: A. Dreyer, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Bariatrix Europe Inc., SAS

Form of order sought

The appellant claims that the Court should:

— annul the decision of the Seventh Chamber of the General Court (Court of First Instance) of 16 December 2011 in Case T-62/09;

— order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that the contested judgment should be annulled on the ground that the General Court infringed Article 74(2) of Council Regulation (EC) No 40/94 (1) (CMTR) [now Article 76(2) of Regulation (EC) No 207/2009 (2)] and on the ground of misuse of power. According to the appellant the General Court wrongly interpreted Article 74/2) of Regulation (EC) No 40/94 by deciding that the Board of Appeal was right in not taking into account documents and evidence submitted by the appellant. The General Court wrongly decided that the Board lawfully refused to exercise discretion when refusing to take the aforementioned documents into account.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, OJ L 11, p. 1

(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, OJ L 78, p. 1
1.

Is Article 6 of Regulation (EC) No 1896/2006 (1) of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (Regulation No 1896/2006) to be interpreted as meaning that Article 24 of Council Regulation (EC) No 44/2001 (2) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regulation No 44/2001), which confers jurisdiction on a court before which a defendant enters an appearance, must also be applied in the European order for payment procedure?
2.

Is a shape a ‘shape which gives substantial value to the goods’ within the meaning of the provision referred to above (a) only if that shape must be regarded as the main or overriding value in comparison with other values (such as, in the case of foods, their taste or substance); or (b) also where the goods have other values, which must be regarded as equally substantial, in addition to that main or overriding value?
2.

In the event of an affirmative answer to Question 1, is the supply for consideration of access to such an open-air swimming-pool complex, which offers its visitors the above-mentioned opportunity of exercising sporting activities, although alongside other kinds of amusement or recreation, to be regarded as a service closely linked to sport or physical education supplied to persons taking part in sporting or physical education activities within the meaning of that provision of Directive 2006/112/EC, and hence as a service exempted from value added tax in so far as it is supplied by a non-profit-making organisation and the other conditions under that directive are satisfied?
EN Official Journal of the European Union C 157/5

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Alessandra Venturini v A.S.L. Varese and Others

(Case C-159/12)

2012/C 157/07

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Alessandra Venturini

Defendants: ASL Varese and Others

Question referred

Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne not by the [national health service] but wholly by the citizen — and which accordingly also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical product, as well as a quota in relation to the number of commercial outlets which may be established in the national territory?
EN Official Journal of the European Union C 174/18

Action brought on 30 March 2012 — European Commission v Ireland

(Case C-158/12)

2012/C 174/28

Language of the case: English

Parties

Applicant: European Commission (represented by: S. Petrova, K. Mifsud-Bonnici, Agents)

Defendant: Ireland

The applicant claims that the Court should:

— declare that, by not issuing permits in accordance with Articles 6 and 8 or Directive 2008/1/EC (1) or, as appropriate, by not reconsidering and, where necessary, by not updating permit conditions, in respect of 13 existing pig rearing installations and poultry rearing installations in Ireland, and thereby by failing to ensure that those existing installations operate in accordance with Articles, 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) of the IPPC Directive by not later than 30 October 2007, Ireland has failed to fulfil its obligation pursuant to Article 5(1) of the IPCC Directive.

— order Ireland to pay the costs.

Pleas in law and main arguments

Pursuant to Article 5(1) of the IPPC Directive, Member States were obliged to ensure that their competent authorities either issue permits in accordance with Articles 6 and 8 or, as appropriate, reconsider and, where necessary, update the existing permit conditions by not later than 30 October 2007.

From the information available the Commission concludes that existing pig rearing installations and poultry rearing installation in Ireland are still operation without any IPPC permit and the Commission therefore concludes that Ireland is in breach of its obligations under Article 5(1) of the Directive.

(1) Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control

OJ L 24, p. 8.
1.

Is it consistent with the Community principle of equality (in the terms in which it has been defined by the Court of Justice) for a given public authority (here the IMDECO), for the purposes of calculating its employees’ length-of-service salary increments, to take into account solely the character of the legal relationship linking the authority and the employees, either of a public service or of a contractual kind, and consequently in the former case (civil servants), in accordance with the Ley estatal funcionarial vigente, for it to take into account without distinction all service, current and past, performed in any part of the public authorities in general (that is, in that particular public authority — IMDECO — or in any another type of public authority), while in contrast, in the latter case (staff engaged under employment contracts), in accordance with the Ley estatal laboral vigente and the case law interpreting it, it takes into account only the service previously provided to that particular public authority (IMDECO), provided however that there is no temporary break in the chain of contracts covering the services which would suggest that the essential unity of the legal-employment relationship had been broken, insofar as, in such a case, the days worked immediately before such a break are disregarded?
EN Official Journal of the European Union C 118/14

Reference for a preliminary ruling from the Administrativen Sad — Varna (Bulgaria) lodged on 7 February 2012 — Galin Kostov v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ -grad Varna pri Tsentralno upravlenie na Natsionalna agentsia za prihodite

(Case C-62/12)

2012/C 118/21

Language of the case: Bulgarian

Referring court

Administrativen Sad — Varna

Parties to the main proceedings

Applicant: Galin Kostov

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ -grad Varna pri Tsentralno upravlenie na Natsionalna agentsia za prihodite

Question referred

Is a natural person who is registered for VAT by reason of his activity as a private bailiff to be regarded as a taxable person within the meaning of Article 9(1) of Directive 2006/112 (1) and required, pursuant to Article 193 of Directive 2006/112, to pay VAT in respect of a service which he has provided on an occasional basis and not in connection with his activity as a private bailiff?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
1.

Does Article 4.17a of the Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000) contravene the prohibition of border checks or the prohibition of checks equivalent to border checks within the terms, respectively, of Articles 20 and 21 of the Schengen Borders Code? (1)
EN Official Journal of the European Union C 217/6

Action brought on 25 April 2012 — European Commission v French Republic

(Case C-193/12)

2012/C 217/12

Language of the case: French

Parties

Applicant: European Commission (represented by: B. Simon and J. Hottiaux, acting as Agents)

Defendant: French Republic

Form of order sought

— Declare that, by failing to designate as vulnerable zones a number of zones characterised by the presence of surface and groundwater bodies which are, or may be, affected by excessive nitrate content and/or eutrophication, the French Republic has failed to fulfil its obligations under Article 3(1) and (4) of and Annex I to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, (1)

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission complains that when the defendant carried out a revision of the vulnerable zones in 2007, its designation of those zones was not comprehensive, as it ought to have been under Article 3(1) and (4) of and Annex I to Directive 91/676/EEC.

The Commission complains in particular that the French authorities failed to designate 10 additional vulnerable zones and did not provide any specific information that might justify that omission.

(1) OJ 1991 L 375, p. 1.
If the answer to Question 1 is in the negative:

Is Article 7(1) of Regulation (EC) No 1610/96 to be interpreted as meaning that an application can be lodged even before the period mentioned in that provision starts to run?
1.

According to the first plea in law the General Court infringed European Union law, erred in its assessment of the relevant facts and provided insufficient grounds for the order by regarding the appellants as merely potential beneficiaries of the aid scheme approved by the Commission. The General Court disregards the fact that, before the decision, (1) the appellants benefited from the existing aid measures that were required to be amended as a result of the decision. The appellants are not, therefore, merely potential beneficiaries of the modified aid, but also in fact beneficiaries of the existing aid. In the latter capacity the decision at issue is indeed of individual concern to them.
3.

If Question 2 is answered in the affirmative: In cases in which, in accordance with Article 10a(1)(b) of Directive 85/337/EEC, the administrative procedural law of a Member State lays down in principle that access to a judicial review procedure for members of the public concerned is conditional upon maintaining the impairment of a right, is Article 10a of Directive 85/337/EEC to be interpreted as meaning (a) that a challenge before a court to the procedural legality of decisions to which the provisions of this Directive on public participation are applicable can be successful and lead to the decision being set aside only if, in the circumstances of the case, there is a definite possibility that the contested decision would have been different without the procedural error and if, at the same time, the procedural error affected a substantive legal position to which the applicant was entitled, or (b) that, in a challenge before a court to procedural legality, procedural errors in decisions to which the provisions of the Directive on public participation are applicable must be considerable on a wider scale? If it is necessary to answer the above question as in b): Which substantive requirements should apply to procedural errors, in order for these to be taken into account in challenges before a court to the procedural legality of the decision in favour of an applicant?