ddrg/super_eurlex huggingface dataset:
1.

When goods bearing a protected motif are unlawfully offered for sale in a shop, can there also be an infringement of the author's exclusive right of distribution under Article 4(1) of Directive 2001/29 ( 1 ) as regards goods with identical motifs, which are held in storage by the person offering the goods for sale?
EN Official Journal of the European Union C 402/15

Appeal brought on 18 September 2017 by BPC Lux 2 Sàrl, and Others against the order of the General Court (Second Chamber) delivered on 19 July 2017 in Case T-812/14: BPC Lux 2 Sàrl and Others v European Commission

(Case C-544/17 P)

(2017/C 402/17)

Language of the case: English

Parties

Appellants: BPC Lux 2 Sàrl and Others (represented by: K. Bacon QC, B. Woogar, Barristers, J. Webber, M. Steenson, Solicitors)

Other parties to the proceedings: European Commission, Portuguese Republic

Form of order sought

The appellants claim that the Court should:

— set aside the order of the General Court;

— remit the case to the General Court for a further hearing on the merits; and

— order the Commission to pay the appellants’ costs.

Pleas in law and main arguments

This is an appeal against the order of the General Court dated 19 July 2017 in Case T-812/14 BPC Lux 2 Sàrl v European Commission EU:T:2017:560 (‘the order under appeal’), by which the General Court dismissed as inadmissible the appellants’ action seeking annulment of the Commission’s Decision C(2014) 5682 on State Aid SA.39250 Resolution of Banco Espírito Santo (‘the contested decision’).

In the order under appeal, the General Court held of its own motion that the appellants do not have an interest in annulment, and as such that their application is inadmissible. The appellants now appeal to the Court of Justice, on the single ground that the General Court erred in law and/or manifestly distorted the evidence before it.

Specifically, the General Court erred in finding that the annulment of the contested decision could not have any effect in the domestic proceedings because they concerned questions of national law while these proceedings concern issues of EU law. In fact, as set out further below, the appellants had provided evidence from their Portuguese lawyer, uncontradicted by the Commission or the Portuguese Republic, that the annulment of the contested decision would substantially increase the likelihood of success in their domestic judicial review application, entitling them either to annulment of the resolution of BES or to claim damages. In reaching the contrary conclusion, and thereby denying the Portuguese courts the opportunity to consider the point for themselves, the General Court impermissibly substituted its own assessment of the interpretation of national law for that of the Portuguese courts, and/or manifestly distorted the evidence before it.
EN Official Journal of the European Union C 424/17

Appeal brought on 30 August 2017 by L’Oréal against the order of the General Court (First Chamber) delivered on 26 June 2017 in Case T-181/16 L’Oréal v European Union Intellectual Property Office (EUIPO)

(Case C-519/17 P)

(2017/C 424/24)

Language of the case: French

Parties

Appellant: L’Oréal (represented by: T. de Haan, P. Péters, lawyers)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Guinot

Form of order sought

— set aside the order of the General Court of the European Union of 26 June 2017 in Case T-181/16, EU:T:2017:447;

— refer the case back to the General Court of the European Union; and

— reserve the costs; in the alternative, order EUIPO to bear the appellant’s costs in relation both to the appeal and to the proceedings at first instance.

Pleas in law and main arguments

According to the appellant, the General Court distorted the facts and arguments which it had made before it and infringed Article 8(1)(b) of Regulation (EC) No 207/2009. (1)

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ L 78, p. 1).
Case C-224/17 P: Appeal brought on 27 April 2017 by Hernández Zamora, SA against the judgment of the General Court (Ninth Chamber) delivered on 17 February 2017 in Case T-369/15: Hernández Zamora, SA v European Union Intellectual Property Office

Appeal brought on 27 April 2017 by Hernández Zamora, SA against the judgment of the General Court (Ninth Chamber) delivered on 17 February 2017 in Case T-369/15: Hernández Zamora, SA v European Union Intellectual Property Office

(Case C-224/17 P)

Parties

Appellant: Hernández Zamora, SA (represented by: J.L. Rivas Zurdo, abogado)

Other parties to the proceedings: European Union Intellectual Property Office, Rosen Tantau KG

By order of 19 October 2017 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.
1.

(a) Does Article 46(3) of Directive 2013/32/EU (1) of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) …, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, preclude a system under which the administrative court of first instance in asylum cases may not, in principle, take into account a ground for asylum first put forward by a foreign national in the judicial proceedings before it when assessing that action? (b) Does it matter in this regard whether a de facto new ground for asylum is put forward, that is to say, a ground for applying for international protection based on facts and circumstances which arose after the decision of the determining authority on the application for international protection, or whether it is a ground for asylum which was initially withheld, that is to say, a ground for applying for international protection which is based on facts and circumstances which arose before the decision of the determining authority on the application for international protection and which the foreign national knew about but was at fault for not disclosing in the administrative phase? (c) Does it matter in this regard whether the ground for asylum is put forward in the framework of judicial proceedings before the administrative court of first instance in asylum cases challenging a decision of the determining authority on a first application or on a subsequent application for international protection?
2.

If the first question is answered in the affirmative, can that supply of service also be subject, in addition to the special scheme for travel agents under Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, to the tax rate reduction for the provision of holiday accommodation, as referred to in Article 98(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax in conjunction with Annex III, point (12)?
2)

If so, does the task to be performed by the national court under Article 108(3) TFEU preclude the taxable person from being granted a tax advantage which that taxable person claims under Article 56 of the EC Treaty (now: Article 63 TFEU), or should a proposed judicial decision to grant that advantage be notified to the Commission, or should the national court take any other action or implement any other measure, in view of the supervisory task assigned to it under Article 108(3) TFEU?
EN Official Journal of the European Union C 13/5

Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 4 October 2017 — Martin Wächtler v Finanzamt Konstanz

(Case C-581/17)

(2018/C 013/06)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Martin Wächtler

Defendant: Finanzamt Konstanz

Question referred

Are the provisions of the Agreement of 21 June 1999 (1) between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, which entered into force on 1 June 2002, and in particular the preamble and Articles 1, 2, 4, 6, 7, 16 and 21 thereof and Article 9 of Annex I thereto, to be interpreted as precluding rules of a Member State under which, in order to prevent any element of the taxable basis from being lost, latent, as yet unrealised, appreciations in the value of company rights (without deferment) are charged to tax in the case where a national of that Member State with initially unlimited tax liability transfers his residence from that State to Switzerland and not to a Member State of the European Union or to a State to which the European Economic Area Agreement applies?

(1) OJ 2002 L 114, p. 6.
EN Official Journal of the European Union C 22/31

Action brought on 5 December 2017 — European Commission v Ireland

(Case C-678/17)

(2018/C 022/43)

Language of the case: English

Parties

Applicant: European Commission (represented by: P.J. Loewenthal, A. Bouchagiar, Agents)

Defendant: Ireland

The applicant claims that the Court should:

— declare that, by failing to take, within the prescribed period, all the measures necessary to recover from Apple Sales International and Apple Operations Europe the State aid declared illegal and incompatible with the internal market by Article 1 of Commission decision (EU) 2017/1283 of 30 August 2016 on State aid SA.38373 (2014/C)(ex 2014/NN)(ex 2014/CP) implemented by Ireland to Apple […] (1), Ireland has failed to fulfil its obligations under Articles 2 and 3 of that decision as well as under Article 108(2) TFEU;

— order Ireland to pay the costs.

Pleas in law and main arguments

According to the decision of the European Commission of 30 August 2016 in case SA.38373, Ireland should have recovered within four months the unlawful and incompatible State aid granted to Apple Sales International (‘ASI’) and Apple Operations Europe (‘AOE’). The aid resulted from two tax rulings issued by Ireland in favour of ASI and AOE on 29 January 1991 and 23 May 2007, which enabled those companies to determine their corporation tax liability in Ireland on a yearly basis until 2014.

Ireland did not recover the State aid within four months following the notification of the Commission’s decision, as it was obliged to do. Furthermore, Ireland has still not taken all the measures necessary to implement the Commission’s decision.

(1) OJ 2017, L 187, p. 1.
1.

Is Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (1) compatible with the precautionary principle when it provides no specific definition of an active substance, leaving it to the applicant to determine what it designates as the active substance in its product and granting it scope to focus its whole application dossier on a single substance, while its end product placed on the market is made up of several substances?
In the event that the ‘intervener’ is not to be regarded as a ‘party’ for the purposes of Article 3(1) of Regulation No 861/2007:

Does a procedure commenced using Form A of [Annex I] to Regulation No 861/2007 between a claimant (applicant) and a respondent (defendant) fall within the scope of Regulation No 861/2007 under Article 2(1) of that regulation, read in conjunction with Article 3(1) thereof, if those parties are domiciled in the same Member State as the Member State in which the court or tribunal seised is situated, and only the ‘intervener’ is domiciled in a different Member State?
1.

Is the appellant’s interest within the meaning of the second paragraph of Article 46(2) of Procedural Directive II (1) to be interpreted to the effect that subsidiary protection status does not grant the same rights and benefits as refugee status if, under national law, foreign nationals granted international protection do enjoy the same rights and benefits but a different approach is adopted in defining the duration or cessation of international protection, inasmuch as refugee status is granted to refugees for an indefinite period but ceases when the circumstances on the basis of which it was granted cease, whereas subsidiary protection is granted for a specified period and is extended if the reasons for it continue to exist?
4.

Is an interpretation of Article 8(4) and Article 32(3) of the Visa Code according to which visa applicants can lodge an appeal against the rejection of their applications only with an administrative or judicial body of the representing Member State, and not in the represented Member State for which the visa application was made, consistent with effective legal protection as referred to in Article 47 of the Charter? Is it relevant to the answer to that question that the avenue of legal recourse offered should guarantee that an applicant has the right to be heard, that he has the right to bring proceedings in a language of one of the Member States, that the level of the charges or court fees for the procedures governing the lodging of objections and appeals are not disproportionate for the applicant and that there is a possibility of funded legal aid? Given the margin of discretion enjoyed by the State in matters relating to visas, is it relevant to the answer to this question whether a Swiss court has sufficient insight into the situation in the Netherlands to be able to provide effective legal protection?
EN Official Journal of the European Union C 52/17

Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 17 November 2017 — GE Power Controls Portugal — Unipessoal Lda v Fazenda Pública

(Case C-643/17)

(2018/C 052/24)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: GE Power Controls Portugal — Unipessoal Lda

Defendant: Fazenda Pública

Question referred

In the light of Article 313(1) of the Implementing Regulation (1), are the goods referred to in the present case to be deemed to have Community status where it has not been established that they do not have such status, or […] must they be deemed to be goods brought into the customs territory, for the purposes of Article 3 of the [Community customs] code (2), and covered by the exception provided for in the first part of Article 313(2)(a) of the Implementing Regulation, with the result that only goods in respect of which it has been proven that a procedure for releasing them for free circulation in the EC customs territory has been carried out are to be recognised as having Community status[?]

(1) Commission Regulation (EEC) Noo 2454/93 of 2 July 1993, laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code

(OJ 1993, L 253, p. 1)

(2) Commission Regulation (EEC) Noo 2913/92, 12 October 1992 establishing the Community Customs (Code OJ 1992, L 302, p. 1)
EN Official Journal of the European Union C 94/5

Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 4 December 2017 — M. Çoban v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

(Case C-677/17)

(2018/C 094/06)

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Applicant: M. Çoban

Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

Question referred

Must Article 6(1) of Decision No 3/80, (1) having regard to Article 59 of the Additional Protocol, be interpreted as precluding a legislative provision of a Member State such as Article 4a of the Toeslagenwet (Netherlands Law on Supplementary Benefits), under which a supplementary benefit which has been awarded is withdrawn if the beneficiary moves to Turkey, even if that beneficiary left the territory of the Member State on his own initiative? Is it significant in this regard that, at the time of departure, the person concerned no longer has a right of residence under the law of the [EEC-Turkey] Association, but does hold a long-term resident’s EU residence permit? Is it significant in this regard that the person concerned has the opportunity, under national rules, to return within a year of his departure in order to regain the supplementary benefit, and that this possibility continues for as long as he holds a long-term resident’s EU residence permit?

(1) Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60).
EN Official Journal of the European Union C 83/10

Appeal brought on 28 November 2017 by Viridis Pharmaceutical Ltd against the judgment of the General Court (Second Chamber) delivered on 15 September 2017 in Case T-276/16, Viridis Pharmaceutical Ltd v European Union Intellectual Property Office (EUIPO)

(Case C-668/17 P)

(2018/C 083/16)

Language of the case: German

Parties

Appellant: Viridis Pharmaceutical Ltd (represented by: C. Spintig, Rechtsanwalt, S. Pietzcker, Rechtsanwalt, M. Prasse, Rechtsanwältin)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Hecht-Pharma GmbH

Form of order sought

The appellant claims that the Court should:

1. set aside the judgment under appeal of the Second Chamber of the General Court;

2. refer the case back to the General Court;

3. order EUIPO to pay the appellant’s costs; In the alternative: order that the costs be reserved.

Grounds of appeal and main arguments

By the present appeal, the appellant claims that the General Court, in the judgment under appeal, infringed the EU trade mark Regulation (1) in several ways.

First, the appellant claims that the General Court infringed the first alternative set out in the first sentence of Article 58(1)(a) of the EU trade mark Regulation. The General Court, it submits, erred in law in assuming that use of a registered EU trade mark for a medicinal product for the purpose of preserving the rights in that trade mark can exist only where the necessary authorisation under the law relating to medicinal products has been issued. Moreover, the General Court also infringed that same rule by classifying the use of an EU trade mark in the context of a clinical study carried out in accordance with Article 8(3)(i) of Directive 2001/83/EC (2) as inherently mandatory and therefore as not constituting genuine use.

Furthermore, the appellant alleges infringement of the second alternative set out in the first sentence of Article 58(1)(a) of the EU trade mark Regulation. The General Court, it submits, erred in law in assuming that a clinical study carried out for the purposes of preparing an application for authorisation of a new medicinal product under the law governing medicinal products cannot then be used to justify the non-use of a trade mark if the clinical study was not applied until a significant amount of time had elapsed since registration of the trade mark and/or if the financial resources spent were not sufficient to enable the clinical study to be completed as rapidly as possible.

(1) Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

(2) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).
1.

Is the tax exemption for the provision of medical care by a specialist in clinical chemistry and laboratory diagnostics, in circumstances like those of the main proceedings, assessed under Article 132(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) or under Article 132(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax?
7.

If a contract, be it formal or informal, is concluded, does heating of the common parts of the building (in particular the stairwells) form part of the subject matter of the contract and has the consumer ordered a service in that area of the building, if no request has been expressly made for that service by that consumer or even by the whole building in co-ownership (for example, when radiators have been removed — as appears to have happened in a great number of cases — the experts not mentioning that there are heating appliances in the common parts of the building)?
EN Official Journal of the European Union C 112/19

Action brought on 22 December 2017 — European Commission v Hungary

(Case C-718/17)

(2018/C 112/25)

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: A. Tokár and G. Wils, acting as Agents)

Defendant: Hungary

Form of order sought

— Declare that by failing to indicate, at regular intervals, and at least every three months, the number of applicants who can be relocated swiftly to its territory, Hungary has failed to fulfil its obligations under Article 5(2) of Council Decision (EU) 2015/1601 and, consequently, has also failed to fulfil its obligations under Article 5(4) to (11) of that decision.

— Order Hungary to pay the costs.

Pleas in law and main arguments

The two decisions adopted by the Council in September 2015, namely, Council Decision (EU) 2015/1523 (1) and Council Decision (EU) 2015/1601, (2) established a temporary and emergency relocation scheme, under which the Member States had the obligation to relocate from the territory of Italy and Greece persons in need of international protection.

The Council Decisions obliged the Member States to offer every quarter places for applicants who can be relocated, ensuring thereby the prompt and orderly processing of the relocation procedure. Although nearly all the Member States relocated applicants and met their obligations in this field, Hungary has not adopted any kind of measure since the start of the relocation scheme.

On 16 June 2017, the Commission initiated infringement proceedings against Hungary concerning Council Decision (EU) 2015/1601.

Considering that Hungary’s response was unsatisfactory, the Commission moved on to the next step of the infringement proceedings and, on 26 July 2017, sent Hungary a reasoned opinion.

Considering that the reply to the reasoned opinion was unsatisfactory as well, the Commission decided to bring the case before the Court of Justice for a declaration that Hungary had failed to fulfil its relocation obligations.

(1) Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece (OJ 2015 L 239, p. 146).

(2) Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (OJ 2015 L 248, p. 80).
3.

If the answer to Question 2 is yes: Does the expression ‘gegebenenfalls’ (‘where available’) used in (the German language version of) Article 6(1)(c) of Directive 2011/83/EU mean that only those communication methods are already available in an undertaking that are actually also used by the trader [Or. 3] to contact consumers when entering into distance contracts, or are those communication methods also available in the undertaking that are used by the trader up to that time exclusively for other purposes, such as communication with other traders or authorities?