ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 80/22

Appeal brought on 9 February 2010 by Internationale Fruchtimport Gesellschaft Weichert & Co. KG against the order of the Court of First Instance (Eighth Chamber) delivered on 30 November 2009 in Case T-2/09: Internationale Fruchtimport Gesellschaft Weichert & Co. KG v European Commission

(Case C-73/10 P)

2010/C 80/38

Language of the case: English

Parties

Appellant: Internationale Fruchtimport Gesellschaft Weichert & Co. KG (represented by: A. Rinne, Rechtsanwalt, S. Kon, Solicitor, C. Humpe, Solicitor, C. Vajda QC)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

— set aside the Order of the CFI in Case T- 2/09 dated 30 November 2009; and

— declare Weichert's application for annulment in Case T-2/09 admissible and refer the case back to the General Court of the European Union for judgment on Weichert's claims seeking annulment of the decision of the Commission of the European Communities of 15 October 2008 (Case COMP/39.188 — Bananas) — in so far as it relates to Weichert, or

— in the alternative, refer the case back to the General Court of the European Union for judgment on the admissibility of Weichert's application for annulment in Case T-2/09.

Pleas in law and main arguments

The applicant submits that the CFI erred in law by declaring the application inadmissible on the basis that there could only be a derogation from the application of the Community rules on procedural time limits where the circumstances are either unforeseeable or amount to force majeure. It is submitted that such an approach is unduly narrow and fails to take any, or any proper account, of the importance of the right of access to a court in criminal proceedings, the principle of legality in criminal proceedings, and principle of proportionality, and the overriding need to avoid an unjust result.
EN Official Journal of the European Union C 63/33

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Puglia (Italy) lodged on 4 January 2010 — Azienda Agro-Zootecnica Franchini s.a.r.l. and Eolica di Altamura s.r.l. v Regione Puglia

(Case C-2/10)

2010/C 63/54

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Puglia

Parties to the main proceedings

Applicants: Azienda Agro-Zootecnica Franchini s.a.r.l. and Eolica di Altamura s.r.l.

Defendant: Regione Puglia

Question referred

Is Article 1(1226) of Law No 296 of 27 December 2006, in conjunction with the first paragraph of Article 5 of the decreto del Ministero dell’ambiente e della tutela del territorio e del mare (Decree of the Ministry for the Protection of the Environment, Land and Sea) of 17 October 2007 and with Article 2(6) of Regional Law No 31 of Apulia of 21 October 2008, compatible with Community law, and in particular with the principles which may be inferred from Directives 2001/77/EC (1) and 2009/28/EC (2) (concerning renewable energies) and Directives 79/409/EEC (3) and 92/43/EEC (4) (concerning the protection of birds and natural habitats), in so far as those provisions absolutely prohibit, without distinction, the location of wind turbines not intended for self-consumption in the sites of Community importance (SCIs) and special protection areas (SPAs) comprising the ‘Natura 2000’ ecological network, instead of requiring an appropriate environmental impact assessment to be carried out to analyse the impact of an individual project on the particular site affected?

(1) OJ 2001 L 283, p. 33.

(2) OJ 2009 L 140, p. 16.

(3) OJ 1979 L 103, p. 1.

(4) OJ 1992 L 206, p. 7.
EN Official Journal of the European Union C 80/14

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 8 January 2010 — LECSON Elektromobile GmbH v Hauptzollamt Dortmund

(Case C-12/10)

2010/C 80/24

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: LECSON Elektromobile GmbH

Defendant: Hauptzollamt Dortmund

Question referred

Do the electric mobility scooters which are described more precisely in the order fall within heading 8713 or heading 8703 of the combined nomenclature, as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff? (1)

(1) OJ 2004 L 327, p. 1.
EN Official Journal of the European Union C 113/33

Reference for a preliminary ruling from the Cour de Cassation du Grand-Duché de Luxembourg (Luxembourg) lodged on 3 March 2010 — Etat du Grand-Duché de Luxembourg, Administration de l’Enregistrement et des Domaines v Mr Pierre Feltgen (Administrator in the bankruptcy of the limited liability company BACINO CHARTER COMPANY S.A.), Bacino Charter Company S.A.

(Case C-116/10)

2010/C 113/52

Language of the case: French

Referring court

Cour de Cassation du Grand-Duché de Luxembourg

Parties to the main proceedings

Applicants: Etat du Grand-Duché de Luxembourg, Administration de l’Enregistrement et des Domaines

Defendants: Me Pierre Feltgen (Administrator in the bankruptcy of the limited liability company Bacino Charter Company S.A.), Bacino Charter Company S.A.

Question referred

May services provided by the owner of a vessel who, for reward, with a crew, makes it available for natural persons for the purpose of leisure travel on the high seas by those clients, be exempted under Article 15(5) of Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, (1) where those services are considered to be both vessel hire services and transport services?

(1) OJ 1977, L 145, p. 1.
EN Official Journal of the European Union C 100/20

Reference for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 22 January 2010 — Landwirtschaftliches Unternehmen e.G. Sondershausen v BVVG Bodenverwertungs- und -verwaltungs GmbH

(Case C-37/10)

2010/C 100/30

Language of the case: German

Referring court

Landgericht Berlin

Parties to the main proceedings

Applicant: Landwirtschaftliches Unternehmen e.G. Sondershausen

Defendant: BVVG Bodenverwertungs- und -verwaltungs GmbH

Question referred

Do the provisions of the second and third sentences of Paragraph 5(1) of the Flächenerwerbsverordnung (Land Purchase Regulation), implementing Paragraph 4(3)(1) of the Ausgleichsleistungsgesetz (Law on compensation in respect of the expropriation of private property in the former GDR), infringe Article 87 EC?
2.

Does Community law preclude a Member State from successfully invoking national limitation periods which, in comparison with those applicable under ordinary national law, are particularly favourable to that Member State, as a defence against proceedings instituted against it by a private individual with a view to vindicating that private individual’s rights under the EC Treaty, in a case such as that before the national court, in which the effect of those particularly favourable national limitation periods is to render impossible the recovery of charges which were paid to the Member State under a hybrid system of aid and charges which not only was partially illegal but was also found to be partially incompatible with Community law, where the conflict with Community law was established by the then Court of Justice of the European Communities only after the particularly favourable national limitation periods had expired, even if the illegality had existed earlier?
EN Official Journal of the European Union C 113/19

Appeal brought on 2 February 2010 by Agencja Wydawnicza Technopol sp. z o.o. against the judgment delivered on 19 November 2009 in Joined Cases T-425/07 and T-426/07 Agencja Wydawnicza Technopol v OHIM (100)

(Case C-56/10 P)

2010/C 113/29

Language of the case: Polish

Parties

Appellant: Agencja Wydawnicza Technopol sp. z o.o. (represented by: D. Rzążewska, lawyer)

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

Form of order sought

— set aside the judgment of the Court of First Instance of 19 November 2009 in Joined Cases T-425/07 and T-426/07;

— refer the case back to the General Court;

— order OHIM to pay the costs of the proceedings before the Court of Justice.

Pleas in law and main arguments

The appellant pleads that the Court of First Instance infringed Article 38(2) of the Community trade mark regulation (1) by applying incorrect legal criteria when finding that the Board of Appeal was justified in requesting that a statement be submitted disclaiming exclusive rights to the figures 100 and 300.

The appellant pleads that the Court of First Instance infringed Article 7(1)(c) of the Community trade mark regulation by applying incorrect legal criteria when finding that the elements in respect of which a statement disclaiming exclusive rights was requested to be submitted are descriptive.

The appellant further pleads that the Court of First Instance infringed Article 7(1)(c), Article 38(2) or Article 76 of the Community trade mark regulation, or all of those provisions, by not taking due account of OHIM’s practice relating to the registration of signs consisting of figures or indicating the content of a publication.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).
(a)

Must Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be interpreted as meaning that a national court, hearing an application for enforcement of a final arbitral award issued without the participation of the consumer, is required of its own motion, where the necessary information on the legal and factual state of affairs is available to it for this purpose, to consider the fairness of a penalty contained in the credit agreement concluded by a creditor with a consumer if, according to national procedural rules, such an assessment may be conducted in similar proceedings under national law?
EN Official Journal of the European Union C 113/18

Appeal brought on 2 February 2010 by Agencja Wydawnicza Technopol sp. z o.o. against the judgment delivered on 19 November 2009 in Joined Cases T-200/07 to T-202/07 Agencja Wydawnicza Technopol v OHIM (222)

(Case C-55/10 P)

2010/C 113/28

Language of the case: Polish

Parties

Appellant: Agencja Wydawnicza Technopol sp. z o.o. (represented by: D. Rzążewska, lawyer)

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

Form of order sought

— set aside the judgment of the Court of First Instance of 19 November 2009 in Joined Cases T-200/07 to T-202/07;

— refer the case back to the General Court;

— order OHIM to pay the costs of the proceedings before the Court of Justice.

Pleas in law and main arguments

The appellant pleads that the Court of First Instance infringed Article 7(1)(c) of the Community trade mark regulation (1) by applying incorrect legal criteria when finding that the trade marks belonging to the appellant do not qualify for registration.

The appellant further pleads that the Court of First Instance infringed Article 7(1)(c) or 76 of the Community trade mark regulation, or both of those provisions, by not taking due account of OHIM’s practice relating to the registration of signs consisting of figures or indicating the content of a publication.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).
3.

If the answer to the second question is in the affirmative: May a disadvantage for female pensioners arising from the annual increase in their pensions be justified by the earlier age at which they become entitled to a pension and/or the longer period during which they receive a pension and/or by the fact that the standard amount for a minimum income, provided for under social law (balancing supplement standard amount), was disproportionately increased, where the provisions concerning the payment of the minimum income provided for under social law (balancing supplement) require account to be taken of the pensioner’s other income and the income of a spouse living in the common household, whereas in the case of other pensioners the pension increase takes place without account being taken of the pensioner’s other income or the income of the pensioner’s spouse?
EN Official Journal of the European Union C 134/24

Action brought on 5 March 2010 — European Commission v Council of the European Union

(Case C-121/10)

2010/C 134/36

Language of the case: English

Parties

Applicant: European Commission (represented by: V. Di Bucci, L. Flynn, A. Stobiecka-Kuik, K. Walkerová, Agents)

Defendant: Council of the European Union

The applicant claims that the Court should:

— annul Council Decision 2009/1017/EU of 22 December 2009 on the granting of State aid by the authorities of the Republic of Hungary for the purchase of agricultural land between 1 January 2010 and 31 December 2013 (1);

— order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The Council, by adopting the contested decision, has overturned the Commission's decision resulting from the proposal for appropriate measures in point 196 of the 2007 Agricultural Guidelines and from its unconditional acceptance by Hungary, obliging the latter to bring to an end two existing aid schemes for the purchase of agricultural land by 31 December 2009 at the latest. Under the guise of exceptional circumstances, the Council has in fact allowed Hungary to maintain those schemes until the expiry of the 2007 Agricultural Guidelines on 31 December 2013. The circumstances put forward by the Council as the grounds for its decision are self-evidently not exceptional circumstances of such a nature as to justify the decision taken and make no allowance for the Commission's decision on those schemes.

In support of its action for annulment, the Commission puts forward four pleas in law:

(a) In the first place, it considers that the Council was not competent to act under the third subparagraph of Article 108(2) TFEU because the aid which it approved was existing aid which Hungary had committed to eliminating by the end of 2009 when it accepted the appropriate measures proposed to it by the Commission.

(b) Secondly, the Council has misused its powers, seeking to neutralise the determination of the Commission regarding aid measures which Hungary was free to retain until the end of 2009 but not after that date, by allowing those measures to be kept in place until 2013.

(c) Thirdly, the contested decision was adopted in breach of the principle of sincere cooperation which applies to Member States and also between institutions. By its decision, the Council has released Hungary from its obligation of cooperation with the Commission in relation to the appropriate measures accepted by that Member State regarding existing aid for purchase of agricultural land in the context of the cooperation established by Article 108(1) TFEU.

(d) By its final plea, the Commission argues that the Council committed a manifest error of assessment insofar it found that exceptional circumstances existed which justify the adoption of the approved measure.

(1) OJ L 348, p 55
(b)

in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);
2.

Does Article 67 of the Treaty on the Functioning of the European Union, signed at Lisbon on 13 December 2007, preclude legislation such as that resulting from Article 78-2, paragraph 4, of the Code of Criminal Procedure, which provides that ‘in an area between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line traced 20 kilometres inside that border, and in the publicly accessible areas of ports, airports and railway or bus stations open to international traffic, designated by order, the identity of any person may also be checked, in accordance with the procedure provided for in paragraph 1, in order to ascertain whether the obligations laid down by law to possess, carry and present papers and documents are observed. Where that control takes place on board an international train, it may be carried out on the section of the journey between the border and the first stop situated beyond the twenty kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next fifty kilometres. Those lines and those stops are designated by Ministerial order. Where there is a section of motorway starting in the area referred to in the first sentence of this paragraph and the first motorway tollbooth is situated beyond the twenty kilometre line, the control may also take place up to that first tollbooth, on parking areas and on the site of that tollbooth and the adjoining parking areas. The tollbooths concerned by this provision shall be designated by order’?
(iv)

Is a hotel operator which provides in a guest bedroom apparatus (other than a television or radio) and phonograms in physical or digital form which may be played on or heard from such apparatus a ‘user’ making a ‘communication to the public’ of the phonograms within the meaning of Article 8(2) of Directive 2006/115/EC?
Action brought on 9 April 2010 — European Commission v France

(Case C-179/10)

(2010/C 161/52)

Language of the case: French

Parties

Applicant: European Commission (represented by: E. Gippini Fournier and K. Walkerová, acting as Agents)

Defendant: French Republic

Form of order sought

— declare that, by failing to implement Commission Decision 2005/238/EC of 14 July 2004 concerning aid granted to the fisheries and aquaculture sector in Corsica from 1986 to 1999 (1) by recovering from the beneficiaries thereof aid declared unlawful and incompatible with the common market by Article 1 of that decision and by failing to inform the Commission of the measures taken to comply with that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 4 and 5 of that decision;

— order the French Republic to pay the costs.

Pleas in law and main arguments

Pursuant to Article 4 of Commission Decision 2005/238/EC, France is required to inform the Commission, within two months of notification of that decision, of the measures taken to comply with it. In the present case, more than 5 years after the receipt of the Decision by the French authorities and despite seven reminders, the aid granted has not yet been recovered from the beneficiary firms and no effective measures have been taken to such effect. The defendant, furthermore, has not argued that it is absolutely impossible to implement that Decision.

(1) Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (OJ 2005 L 74, p. 49).
1.

Must Community law, and in particular Article 12(2) and (5) and Article 217(1) of the CCC (1), and Article 11 of the CCIR (2) in conjunction with Article 243 of the CCC, be interpreted to mean that a person involved in proceedings concerning customs duties which have been imposed may challenge their imposition by producing binding tariff information issued in another Member State for the same goods, which information was still the subject of a legal dispute at that time, but was eventually revised?
1.

Is a flat-rate farmer within the meaning of Article 295(1)(3) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) … who sells plots of land used for his agricultural activity which are designated in a municipality’s urban management plan for residential and service development and were purchased as agricultural land (VAT-free) covered by Article 16 of that directive, which regards the application of business assets for the taxable person’s private use or for purposes other than those of his business as a supply of goods for consideration only where the tax on those assets was wholly or partly deductible?
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to implement Commission Directive 2008/74/EC of 18 July 2008 amending, as regards the type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and access to vehicle repair and maintenance information, Directive 2005/55/EC of the European Parliament and of the Council and Directive 2005/78/EC, (1) or by failing to notify the Commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive;
1.

Having regard to the judgments of the Court of Justice in Gourdain and Seagon, do Article 3(1) of Regulation No 1346/2000 (1) and Article 1(2)(b) of Regulation No 44/2001 (2) have to be interpreted in such a way that: (a) a national court hearing insolvency proceedings has exclusive jurisdiction to hear an actio Pauliana which derives directly from the insolvency proceedings or is closely connected with them, and exceptions to such jurisdiction can be founded only on other provisions of Regulation No 1346/2000; (b) an actio Pauliana by the sole creditor of an undertaking in respect of which insolvency proceedings have been initiated in one Member State, that: — is brought in another Member State, — arises from a right of claim against third parties assigned to him by the liquidator on the basis of an agreement for consideration, restricting in that way the extent of the liquidator’s claims in the first Member State, and — does not give rise to a danger for other possible creditors, is to be classified as a civil and commercial matter under Article 1(1) of Regulation No 44/2001?
EN Official Journal of the European Union C 209/31

Reference for a preliminary ruling from the Tribunale del Riesame di Verbania (Italy) lodged on 4 June 2010 — Criminal proceedings against Matteo Minesi

(Case C-279/10)

()

2010/C 209/44

Language of the case: Italian

Referring court

Tribunale del Riesame di Verbania

Party to the main proceedings

Matteo Minesi

Question referred

The Court of Justice is requested to interpret Articles 43 and 49 of the Treaty establishing the European Union with reference to freedom of establishment and freedom to provide services in the sector of betting on sports events in order to establish whether or not those Treaty provisions permit national rules establishing a State monopoly and a system of licences and authorisations which, within the context of a given number of licences: (a) tend generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded some operators; (b) in fact ensure the maintenance of commercial positions acquired following a procedure that unlawfully excluded certain operators (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence); (c) provide cases in which the licence may lapse with forfeiture of very large guarantee deposits, including the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence.