ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 312/13

Appeal brought on 11 September 2009 by Athinaïki Techniki AE against the order of the Court of First Instance (Fourth Chamber) delivered on 29 June 2009 in Case T-94/05 Athinaïki Techniki AE v Commission of the European Communities

(Case C-362/09 P)

2009/C 312/21

Language of the case: French

Parties

Appellant: Athinaïki Techniki AE (represented by: S.A. Pappas, lawyer)

Other parties to the proceedings: Commission of the European Communities, Athens Resort Casino AE Symmetochon

Form of order sought

— Set aside the order under appeal;

— grant the form of order sought at first instance;

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant puts forward four pleas in support of its appeal.

By the first plea, it is claimed that the Court of First Instance misinterpreted the earlier case-law of the Court of Justice with regard to the conditions governing the unlawfulness of the withdrawal of an administrative act. In order for the withdrawal to be valid, the unlawfulness of the act must have been established and it must have been revoked within a reasonable period. However, in the present case, the Commission’s act was withdrawn more than four years after its adoption and without any reasons being given.

By its second plea, Athinaïki Techniki submits that the Court of First Instance erred in law by failing to rule on the issue which it had raised concerning the misuse of powers. By withdrawing the decision at issue, the Commission was seeking not to withdraw the act in question so as to comply with the principle of legality, but to avoid review by the Community judicature.

Third, the appellant states that it still has an interest in obtaining a judgment annulling the decision of the Commission that is at issue, contrary to what was held in the order under appeal. The consequences of the Commission’s withdrawal of the act in question are not, in fact, confined merely to the reopening of the preliminary investigation procedure. A judgment annulling a decision gives rise to an obligation on the part of the Commission either to open the formal State aid investigation procedure, or to invite the Member State concerned to cancel or modify the aid in question. The Court of First Instance therefore erred in law when it took the view that the only consequence of annulment of the decision at issue was the obligation to reopen the preliminary investigation procedure.

Finally, the appellant takes the view that the Court of First Instance failed to have regard to the force of res judicata attaching to the judgment of the Court of Justice in the related Case C-521/06 P. It is apparent from that judgment that the Commission could not persist in its failure to take administrative action in the context of the State aid investigation procedure. However, by withdrawing the decision at issue, the Commission effectively did just that — failed to act — and the Court of First Instance committed a further error of law by failing to criticise the Commission at all.
2.

In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of Directive 2001/29/EC require national law to be interpreted so broadly that a person owing the ‘fair compensation’ referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?
—

Declare that, by failing to adopt all the measures necessary to comply with the judgment delivered by the Court of Justice of the European Communities on 1 April 2004 in Case C-99/02 concerning the recovery from beneficiaries of aid considered unlawful and incompatible with the common market by Commission Decision 2000/128/EC (1) of 11 May 1999 concerning aid granted by Italy to promote employment, the Italian Republic has failed to fulfil its obligations under that decision and under Article 228(1) EC;
EN Official Journal of the European Union C 24/19

Reference for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 28 October 2009 — Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej

(Case C-410/09)

2010/C 24/33

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Polska Telefonia Cyfrowa sp. z o.o.

Defendant: Prezes Urzędu Komunikacji Elektronicznej

Question referred

Does Article 58 of the Act of Accession (OJ 2003 L 236, p. 33) allow reliance to be placed against individuals in a Member State upon European Commission guidelines (OJ 2002 C 165, p. 6) of which, under Article 16(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), the national regulatory authority should take the utmost account when carrying out an analysis of the relevant markets, where those guidelines have not been published in the Official Journal of the European Union in the language of that State and that language is an official language of the European Union?
—

declare that, by failing to adopt all such laws, regulations and administrative provisions necessary to comply with Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC, (1) or in any event, by failing to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 18 of that directive;
EN Official Journal of the European Union C 37/24

Action brought on 9 December 2009 — European Commission v French Republic

(Case C-510/09)

2010/C 37/29

Language of the case: French

Parties

Applicant: European Commission (represented by: M. Patakia and G. Zavvos, acting as Agents)

Defendant: French Republic

Form of order sought

— Declare that, by not notifying at the planning stage the decree of 13 March 2006 concerning the use of unprepared blends of products referred to in Paragraph L.253-1 of the Rural Code in the context of the procedure provided for by Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of 20 July 1998 (1), the French Republic has failed to fulfil its obligations under Article 8(1) of that directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the European Commission complains that the defendant did not notify it, before its adoption, of the ministerial decree at issue concerning the use of unprepared blends of phytopharmaceutical products with an agricultural value, although that decree clearly constitutes a technical rule within the meaning of Directive 98/34 and which should, on that ground, have been notified to it at the planning stage since it is not covered by the derogation under Article 10 of that directive.

According to the Commission, the defendant acknowledged the relevance of that infringement since, following the receipt of the reasoned opinion, the French authorities notified the Commission of a draft decree repealing the ministerial decree at issue and reproducing its substance. However, at the date the present action was brought, that draft decree had still not been adopted by the French authorities or, in any event, the Commission had still not been informed thereof.

(1) Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 217, p. 18).
EN Official Journal of the European Union C 24/27

Action brought on 11 November 2009 — Commission of the European Communities v Republic of Austria

(Case C-441/09)

2010/C 24/50

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and B.-R. Killmann, Agents)

Defendant: Republic of Austria

Form of order sought

— declare that, by applying a reduced rate of value added tax (VAT) to the supply, importation and intra-Community acquisitions of certain live animals, in particular horses, not intended for use in the preparation of foodstuffs for human or animal consumption, the Republic of Austria has failed to fulfil its obligations under Article 96 and 98 in conjunction with Annex III of the Directive on the VAT system (1);

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission is of the opinion that Austrian law on VAT infringes Article 96 and 98 in conjunction with Annex III of the Directive on the VAT system, by also applying a reduced rate of VAT to the supply of certain live animals (in particular horses), where those animals are not intended for the production of foodstuffs.

The expression ‘live animals’ in point 1 of Annex III to the Directive on the VAT system is not a separate category but encompasses only those animals which are normally used as foodstuffs for human or animal consumption. That interpretation is supported by the Spanish, French, English, Italian, Dutch, Portuguese and Swedish versions of that provision. In addition the fact that that provision is an exception requires according to settled case-law that it be interpreted strictly.

Particularly animals of the family of equids are clearly used principally as pack or riding animals (and not as foodstuffs for human or animal consumption).

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 37/18

Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 25 November 2009 — Charles Defossez v Christian Wiart, liquidator of Sotimon SARL, Office national de l’emploi, CGEA de Lille

(Case C-477/09)

2010/C 37/19

Language of the case: French

Referring court

Cour de Cassation

Parties to the main proceedings

Applicant: Charles Defossez

Defendant: Christian Wiart, liquidator of Sotimon SARL; Office national de l’emploi (fonds de fermeture d’entreprises); CGEA de Lille

Question referred

Is the reference to the Court of Justice of the European Communities for a ruling on whether Article 8a of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, (1) as amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002, (2) which provides, in paragraph 1 thereof, that when an undertaking with activities in the territories of at least two Member States is in a state of insolvency, the institution responsible for meeting employees’ outstanding claims is to be that in the Member State in whose territory they work or habitually work and, in paragraph 2 thereof, that the extent of employees’ rights is to be determined by the law governing the competent guarantee institution, is to be interpreted as designating the competent institution to the exclusion of any other, or whether, having regard to the purpose of the Directive, which is to strengthen the rights of workers exercising their right to freedom of movement, and to the first paragraph of Article 9 of the Directive, under which the Directive is not to affect the option of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees, it is to be interpreted as not depriving the employee of the right to take advantage, in the place of that institution’s guarantee, of a more favourable guarantee from the institution with which his employer is insured and to which it makes contributions under national law?

(1) OJ L 283, p. 23.

(2) OJ L 270, p. 10.
1.

The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude the recovery of the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) as regards the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision. The Court of First Instance erred in law by failing to comply with the procedural rules relating to the assessment of evidence in that it disregarded the substantive content of documents submitted for the purposes of the written procedure. Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates. By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons. The CFI erred in law by holding that the Commission's attitude with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the case file, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.
2.

In particular: — Does the annual duty, which is to be determined by reference to ‘the budgetary resources needed in order for the chambers of commerce system to be able to carry out the services which it is under a duty to provide throughout the national territory’, constitute a duty paid by way of fees or dues? — Does the provision for a ‘balancing fund’, which is intended to harmonise throughout the national territory the performance of all the ‘administrative functions’ entrusted by law to the chambers of commerce, preclude the possibility that the annual duty is a duty paid by way of fees or dues? — Is the power conferred on the individual chambers of commerce to increase the amount of the annual duty by up to 20 % for the purposes of cofinancing initiatives aimed at increasing production and improving the economic conditions of the territorial unit under their responsibility consistent with that annual duty being a duty paid by way of fees or dues? — Does the fact that no methods have been specified for determining the total budgetary requirements for the maintaining and the updating by the chambers of commerce of registrations and notes in the register of companies mean that the annual duty cannot be a duty paid by way of fees or dues? — Is the fact that the annual duty is determined on a flat-rate basis, with no provision for checking at ‘regular intervals’ that it appropriately reflects the average cost of the service, consistent with the annual duty being a duty paid by way of fees or dues?
EN Official Journal of the European Union C 51/23

Action brought on 18 December 2009 — European Commission v Portuguese Republic

(Case C-533/09)

2010/C 51/37

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: H. Støvlbæk and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by requiring Portuguese nationality as a condition of access to the notarial profession, in accordance with the decision of the Ministry of Justice of 12 December 1991 which endorsed the opinion of the Conselho Consultivo da Procuradoria-Geral da República (the Consultative Council of the Attorney General’s Office) on Article 15 of the Portuguese Constitution, the Portuguese Republic has failed to fulfil its obligations under Article 49 TFEU, since the requirement laid down in Article 51 TFUE has not been satisfied.

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

In Portugal, the interests pursued by a notary are not State interests, a notary is not directly and specifically involved in the exercise of official authority, and does not form part of public administration. The exception provided for in Article 51 of the Treaty on the Functioning of the European Union is not applicable to the notarial profession in Portugal. The consultative opinion of the Attorney General’s Office endorsed on 12 December 1991 does not state that the profession of notary falls within the scope of Article 15(2) of the Portuguese Constitution. The functions of a notary in Portugal are exclusively technical in nature. They are based on professional competence, and not on political trust.
2.

The Court misinterpreted the Act of Accession and Regulation No 60/2004. (1) (a) The Court misinterpreted Article 6 of Regulation No 60/2004 by finding that the concept of ‘stocks’ in that provision extends also to household reserves. — The Court determined the objective of Regulation No 60/2004 and point 2 of part 4 of Annex IV to the Act of Accession too strictly by defining it as preventing ‘any’ disturbance. — The Court misinterpreted Article 7(1) and Article 6 of Regulation No 60/2004 by imposing an obligation on the Member States to eliminate excess stocks of sugar, for which there is no legal basis. (b) The Court misinterpreted Article 6(1)(c) of Regulation No 60/2004 by impermissibly narrowing its scope and excluding from it the circumstances in which sugar stocks were built up in Estonia. — The Court erred in assessing the evidence and distorted the evidence when analysing Estonia’s submission that the creation of household reserves played an essential part in the consumption and culture of Estonians. — The Court did not assess correctly the legitimate expectations of Estonia which had arisen in connection with the assurances given by the Commission during the accession negotiations. — The Court did not assess correctly the contribution of the EU to the building up of stocks.
EN Official Journal of the European Union C 63/19

Appeal brought on 24 March 2009 by Sociedad General de Autores y Editores (SGAE) against the judgment delivered on 13 January 2009 by the Court of First Instance (Seventh Chamber) in Case T-456/08 Sociedad General de Autores y Editores (SGAE) v Commission of the European Communities

(Case C-112/09 P)

2010/C 63/30

Language of the case: Spanish

Parties

Appellant: Sociedad General de Autores y Editores (SGAE) (represented by: R. Allendesalazar Corcho and R. Vallina Hoset, abogados)

Other party to the proceedings: European Commission

By order of 14 January 2010 the Court of Justice (Eighth Chamber) dismissed the appeal.
3.

If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised: Must Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) be interpreted as meaning: that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law they also require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-law rules, or do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under the law declared to be applicable pursuant to the national conflict-of-law rules is altered and adjusted to the requirements of the country of origin? In the event that Article 3(1) and (2) of the Directive on electronic commerce have a conflict-of-laws character: Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or also the application of the conflict-of-law rules applicable there, with the consequence that a renvoi under the law of the country of origin to the law of the target State remains possible?
EN Official Journal of the European Union C 63/38

Action brought on 8 January 2010 — European Commission v Republic of Austria

(Case C-10/10)

2010/C 63/60

Language of the case: German

Parties

Applicant: European Commission (represented by: R. Lyal and W. Mölls, Agents)

Defendant: Republic of Austria

Form of order sought

— declare that, by authorising tax deductibility for donations to research and educational institutions only in the case of institutions established within Austria, the Republic of Austria has failed to fulfil its obligations under Article 56 EC and Article 40 EEA;

— order the Republic of Austria to pay the costs of the proceedings.

Pleas in law and main arguments

In the Commission’s view, donations to research and educational institutions which pursue non-commercial objectives come under the free movement of capital under Article 56 EC. The Austrian Government allows tax deduction only in the case of donations made to such institutions which are established in Austria, but not in the case of donations made to similar institutions in other Member States or in other States of the European Economic Area. This, the Commission submits, constitutes a breach of Article 56 EC and of Article 40 EEA.

In justification of this rule, the Republic of Austria argues that this amounts, in substantive terms, to a permissible restriction of the favourable treatment of donations which releases the State from what would otherwise be an obligation on it to provide finance. This, it contends, follows inter alia from the judgment in Case C-396/04 Centro di Musicologia Walter Stauffer. (1)

The Commission takes issue with that justification. The provisions in dispute, it argues, draw a distinction on purely geographical grounds and irrespective of the purpose of the beneficiary institutions. Furthermore, there is no evidence of the interaction, claimed by the Republic of Austria, between direct State financing and the favourable tax treatment accorded to donations made by private individuals. Even if the interaction claimed by the Republic of Austria did exist, it would not, in the Commission’s view, justify any restriction of the free movement of capital as it does not involve a qualified interest relating to the tax system within the terms of the judgment of the Court of Justice in Case C-204/90 Bachmann. (2)

(1) Judgment in Case C-386/04 Centro di Musicologia Walter Stauffer [2006] ECR I-8203.

(2) Judgment in Case C-204/90 Bachmann [1992] ECR I-249.