ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 335/36

Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel (Belgium) lodged on 27 June 2016 — Criminal proceedings against Wamo BVBA, Luc Cecile Jozef Van Mol

(Case C-356/16)

(2016/C 335/49)

Language of the case: Dutch

Referring court

Nederlandstalige rechtbank van eerste aanleg Brussel

Parties to the main proceedings

Wamo BVBA,

Luc Cecile Jozef Van Mol

Question referred

Should Directive 2005/29/EC (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market be interpreted as precluding a national law which prohibits any natural or legal person from disseminating advertising relating to interventions involving aesthetic surgery or non-surgical aesthetic medicine, as provided by Article 20(1) of the Wet van 23 mei 2013 tot regeling van de vereiste kwalificaties om ingrepen van niet-heelkundige esthetische geneeskunde en esthetische heelkunde uit te voeren en tot regeling van de reclame en informatie betreffende die ingrepen (Law of 23 May 2013 regulating the qualifications required to perform non-surgical aesthetic interventions and aesthetic surgery and regulating the advertising and information relating to such interventions) (B.S., 2 July 2013), inserted by the Wet van 10 [April] 2014 houdende diverse bepalingen inzake gezondheid 2014 (Law of 10 April 2014 containing various provisions relating to health) (B.S., 30 April 2014)?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).
EN Official Journal of the European Union C 326/18

Appeal brought on 19 July 2016 by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) of 10 May 2016 in Case T-47/15, Federal Republic of Germany v European Commission

(Case C-405/16 P)

(2016/C 326/30)

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: T. Henze and R. Kanitz, Agents, assisted by T. Lübbig, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The Federal Republic of Germany claims that the Court should:

— set aside, in its entirety, the judgment under appeal of the General Court (Third Chamber) of 10 May 2016 in Case T-47/15;

— order the European Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

The appeal is based on three grounds of appeal:

1. First ground of appeal

The judgment of the General Court under appeal failed to have regard for the limits of the definition of aid under Article 107(1) TFEU in the interpretation of ‘State resources’ and State ‘control’ over the financial resources of private undertakings. The judgment under appeal wrongly assumes that ‘authorities’ of the Federal Republic of Germany, on the basis of the requirements of the German Renewable Energy Law, exercise ‘control’, and therefore administrative power, over the financial means of transmission system operators and energy supply undertakings integrated into the existing system in Germany for promoting renewable energies. The General Court ought properly to have recognised that the Renewable Energy Law creates solely private-law contractual relations between single undertakings in the German energy market but establishes no State control over the financial means of those undertakings.

2. Second ground of appeal

The appellant criticises the General Court for having wrongly held that the German Renewable Energy Law provides an advantage amounting to aid to energy-intensive undertakings as final consumers. In so holding, the General Court failed to have regard for the case-law relating to structural disadvantages and also to the criterion of the selectivity of aid.

3. Third ground of appeal

Finally, the appellant complains of insufficient reasoning in the judgment with regard to the positions of both transmission systems operators and energy supply undertakings.
1.

a) Is Article 220(1) and (2)(b) of Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code to be interpreted as meaning that the amount of duty payable recognised by the tax authority is to be regarded as entered in the accounts by the tax authority when it decides to enter that amount in the accounts or when it establishes the obligation to pay the duty, regardless of whether that decision has been subject to an administrative appeal and challenged in court proceedings? b) Are Articles 236 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be interpreted as meaning that when the tax authority has adopted the decision to enter the corresponding amount of duty in the accounts and has established the debtor’s obligation to pay it (the decision adopted by the Latvian Tax Authority in the present case), but that debtor has brought an administrative appeal against that decision and challenged it in court proceedings, it is necessary to apply at the same time for remission or repayment of that duty, in accordance with Articles 236 or 239 of the regulation (or, in that case, is the application challenging the decision of the aforementioned tax authority to be regarded also as an application for remission or repayment of the tax debt)? If so, what is the difference in substance between the review of the lawfulness of the administrative decision to enter the duty in the accounts and the obligation to pay the duty, on the one hand, and the matter which must be resolved in accordance with Article 236, on the other? c) Is the first subparagraph of Article 236(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be interpreted as meaning that the fact that an appeal has been brought against the tax authority’s decision establishing the obligation to pay the duty, and the duration of the legal proceedings, extend the time limit for submitting the application for remission or repayment of the duty (or justify failure to comply with it)? d) If the question of whether, in this case, the duty should be entered in the accounts or remitted is to be decided regardless of the decision of the European Commission adopted in relation to another Member State (in this case, Finland), should the customs authority or the court, having regard to Article 869(b) of Commission Regulation (EEC) No 2454/93 (2) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code and also to the amount of the possible duty in the case under consideration, refer the question of non-entry or remission of the duty to the European Commission?
(3)

Must Article 13(3) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), in its original version, in conjunction with Article 16 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the national regulatory authority may request the operator required to orientate prices to costs to adjust the price only where that operator first sets the amount of the price independently and starts to apply it, or also where the operator applies the price at the amount set previously by the national regulatory authority but it follows from the cost justification for the subsequent reporting period that the price set previously by the national regulatory authority is above the level of costs incurred by the operator?
Whether enhanced protection under article 28.3(a) (1) depends upon the possession of a right of permanent residence within article 16 and article 28.2.

If the answer to question one is in the negative, the following questions are also referred:
1.

Must Articles 138(1), 140(a) and/or 141 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, read, inter alia, in conjunction with Articles 33 and 40 thereof, be interpreted as meaning that, in circumstances such as those here at issue (in the main proceedings), the supply of goods by a taxable person who is established in the first Member State must be exempt under those provisions in the case where, before that supply transaction is entered into, the purchaser (that is to say, the person identified as being a taxable person in the second Member State) expresses an intention to sell the goods immediately, before transporting them from the first Member State, to a taxable person established in a third Member State, for whom those goods are transported (dispatched) to that third Member State?
4.

In the event that Question 3 is answered in the negative, if such a public contract was nonetheless considered to be consistent with EU law at the time the check was carried out to verify compliance with the qualification requirements for the Programului operațional sectorial ‘Transport’ 2007-2013 (Sectoral Operational Programme ‘Transport’ 2007 2013), does such an alleged breach of EU public procurement law (determination of certain pre-selection criteria for the tenderers which are similar to those set out in the European Investment Bank Guide to Procurement and more restrictive than those laid down in Directive 2004/18 — as set out in paragraphs 12 to 14 of the present order for reference) constitute an ‘irregularity’ within the meaning of Article 2(7) of Regulation No 1083/2006, giving rise to an obligation on the part of the Member State concerned to make a financial correction/percentage reduction pursuant to Article 98(2) of the regulation?
EN Official Journal of the European Union C 371/6

Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 1 August 2016 — ‘Chez Elektro Balgaria’ AD v Yordan Kotsev

(Case C-427/16)

(2016/C 371/07)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant:‘Chez Elektro Balgaria’ AD

Defendant: Yordan Kotsev

Questions referred

1. Does Article 101(1) TFEU (prohibition of the prevention, restriction or distortion of competition) preclude Paragraph 36(2) of the Law on the Legal Profession under which an association of undertakings which practise liberal professions (the Supreme Council of the Legal Profession) has discretion, by virtue of a power conferred on it by the State, to lay down in advance the minimum level of the prices for the services supplied by those undertakings (legal fees)?

2. If Question 1 is answered in the affirmative, does the last part of Paragraph 78(5) of the Code of Civil Procedure (in which that provision does not allow a reduction of the lawyer’s fee to below a fixed minimum amount) conflict with Article 101(1) TFEU?

3. If Question 1 is answered in the affirmative, does Paragraph 132(5) of the Law on the Legal Profession (with regard to the application of Paragraph 136(1) of that law) conflict with Article 101(1) TFEU?

4. Does the first paragraph of Article 56 TFEU (prohibition of restrictions on freedom to provide services) preclude Paragraph 36(2) of the Law on the Legal Profession?

5. Does Paragraph 78(8) of the Code of Civil Procedure conflict with Article 101(1) TFEU?

6. Does Paragraph 78(8) of the Code of Civil Procedure conflict with Directive 77/249/EEC (1) (as regards the right of persons represented by in-house legal advisers to claim legal fees)?

7. Does Paragraph 2a of the Supplementary Provisions to Order No 1 conflict with Directive 2006/112/EC, (2) which allows value added tax to be regarded as a component part of the price of the service supplied in the exercise of a profession (in relation to the inclusion of value added tax as part of the lawyer’s fee payable)?

(1) Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17).

(2) 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 392/12

Appeal brought on 4 August 2016 by the European Commission against the judgment of the General Court (Eighth Chamber) delivered on 26 May 2016 in Joined Cases T-479/11 and T-157/12

(Case C-438/16 P)

(2016/C 392/15)

Language of the case: French

Parties

Appellant: European Commission (represented by: B. Stromsky and D. Grespan, acting as Agents)

Other parties to the proceedings: French Republic, IFP Énergies nouvelles

Form of order sought

— Annul the judgment of the General Court of the European Union of 26 May 2016 in Joined Cases T-479/11 and T-157/12 French Republic and IFP Énergies nouvelles v European Commission;

— Refer the matter back to the General Court for a fresh examination and reserve the costs of the appeal.

Pleas in law and main arguments

The Commission puts forward three grounds of appeal in support of its appeal which all concern infringement of Article 107(1) TFEU and more particularly errors of law concerning the manner in which it was shown that there was an advantage to an undertaking flowing from an implied unlimited guarantee arising as a result of its status.

By its first ground of appeal, the Commission is of the opinion that the General Court committed an error of interpretation as regards the concept of aid scheme and by failing to take account of the ability of a measure to confer an advantage, which involves an error of law as to the nature of the evidence to be adduced by the Commission in order to establish the existence of an advantage to an undertaking flowing from its status as a publicly owned establishment of an industrial and commercial nature (EPIC).

The second ground of appeal alleges an error of law committed by the General Court as regards the scope of the simple presumption of the existence of an advantage flowing from an implied unlimited guarantee and the means by which it may be overturned.

The third ground of appeal alleges an error of law committed by the General Court as regards the scope of the presumption of advantage flowing from an unlimited guarantee: that presumption ought also, logically, to apply to the relationships of the undertaking to which the guarantee is granted with its suppliers and clients.
EN Official Journal of the European Union C 410/9

Action brought on 9 September 2016 — European Commission v Grand Duchy of Luxembourg

(Case C-489/16)

(2016/C 410/10)

Language of the case: French

Parties

Applicant: European Commission (represented by: J. Hottiaux and G. von Rintelen, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

The applicant claims that the Court should:

— declare that, by not adopting, by 16 June 2015 at the latest, the laws, regulations and administrative provisions necessary to ensure compliance with Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ L 343 of 14.12.2012, p. 32) or, in any event, by not notifying those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the first subparagraph of Article 64(1) of that directive;

— impose on the Grand Duchy of Luxembourg, in accordance with Article 260(3) TFEU, a penalty payment of EUR 8 710 per day from the date of delivery of the judgment in the present case for failure to fulfil the obligation to communicate the measures transposing Directive 2012/34/EU;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of the directive expired on 16 June 2015.

It is apparent from the various replies of the Grand Duchy of Luxembourg, in particular from the reply to the reasoned opinion, that more than one year after the expiry of the transposition period set by the directive the Grand Duchy of Luxembourg had not yet adopted the required measures.

The determination of the penalty under Article 260(3) TFEU is based on the three criteria applied under Article 260(2) TFEU, namely the seriousness of the infringement, its duration, and the need to ensure that the penalty has a deterrent effect in order to avoid further infringements.
EN Official Journal of the European Union C 428/6

Request for a preliminary ruling from the Amtsgericht Stuttgart (Germany) lodged on 22 August 2016 — Brigitte Schlömp v Landratsamt Schwäbisch Hall

(Case C-467/16)

(2016/C 428/08)

Language of the case: German

Referring court

Amtsgericht Stuttgart

Parties to the main proceedings

Applicant: Brigitte Schlömp

Defendant: Landratsamt Schwäbisch Hall

Question referred

Is an arbitration authority under Swiss law also covered by the term ‘court’ within the scope of Articles 27 and 30 of the Lugano Convention (1) of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the 2007 Lugano Convention’)?

(1) 2009/430/EC: Council Decision of 27 November 2008 concerning the conclusion of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Declarations, OJ 2009 L 147, p. 1.
2.

If the expert opinion referred to in question 1 may not be used as proof, must Article 4 of Directive 2004/83 be interpreted, in the light of Article 1 of the Charter of Fundamental Rights of the European Union, as meaning that when the asylum application is based on persecution on grounds of sexual orientation, neither the national administrative authorities nor the courts have any possibility of examining, by expert methods, the truthfulness of the applicant for asylum’s claims, irrespective of the particular characteristics of those methods?
3.

Does the manufacture of products for export through the use of assets obtained by means of State aid come within the scope of activity directly linked to the quantities exported within the meaning of Article 1(d) of Regulation No 1998/2006? If the answer is in the negative, are Member States entitled to provide in national legislation for additional restrictions on exporters of products manufactured using assets that are the result of tax relief investment? If the answer is in the affirmative, how does that rule relate to the provisions of Article 35 TFEU concerning the prohibition of quantitative restrictions on exports between Member States and all measures having equivalent effect and does it constitute discrimination and infringement of the free movement of goods?
3.

If the reply to the previous question is that the dismissal has been caused by the transfer and is therefore contrary to Directive 2001/23/EC, is Article 47 of the Charter of the Fundamental Rights of the European Union to be interpreted as meaning that it precludes national legislation prohibiting a court from ruling on the substance of the claims of a worker who contests in an individual action the decision to dismiss him, as part of a collective dismissal, in order to defend the rights deriving from Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses and Council Directive 98/59/EC (2) of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, owing to the fact that final judgment has already been given on the collective dismissal in proceedings to which the worker was unable to be a party, although the unions established in the undertaking and all the collective legal representatives of the workers were or were able to be parties?
1.

Do organisms obtained by mutagenesis constitute genetically modified organisms within the meaning of Article 2 of Directive [2001/18/EC] of 12 March 2001, (1) although they are exempt under Article 3 of and Annex IB to the directive from the obligations laid down for release and placing on the market of genetically modified organisms? In particular, may mutagenesis techniques, in particular new directed mutagenesis techniques implementing genetic engineering processes, be regarded as techniques listed in Annex IA, to which Article 2 refers? Consequently, must Articles 2 and 3 of and Annexes IA and IB to Directive 2001/18 of 12 March 2001 be interpreted as meaning that they exempt from precautionary, impact assessment and traceability measures all organisms and seeds obtained by mutagenesis, or only organisms obtained by conventional random mutagenesis methods by ionising radiation or exposure to mutagenic chemical agents existing before those measures were adopted?
EN Official Journal of the European Union C 6/24

Appeal brought on 2 June 2016 by Ukraine against the order of the General Court (Ninth Chamber, Extended Composition) delivered on 11 March 2015 in Case T-348/14: Yanukovych v Council

(Case C-319/16 P)

(2017/C 006/31)

Language of the case: English

Parties

Appellant: Ukraine (represented by: M. Kostytska, avocat)

Other parties to the proceedings: Oleksandr Viktorovych Yanukovych, Council of the European Union, European Commission

By order of 5 October 2016 the Court of Justice (Eighth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 22/13

Request for a preliminary ruling from the Irinodikio Lerou (Greece) lodged on 9 Νοvember 2016 — Alessandro Saponaro and Kalliopi-Chloi Xylina

(Case C-565/16)

(2017/C 022/19)

Language of the case: Greek

Referring court

Irinodikio Lerou (Greece)

Parties to the main proceedings

Applicant: Alessandro Saponaro and Kalliopi-Chloi Xylina

Question referred

In the event that a petition for leave to renounce an inheritance is brought before a Greek court by the parents of a minor child who is habitually resident in Italy, is it the case that, if there is to be a valid prorogation of jurisdiction under Article 12(3)(b) of Regulation No 2201/2003 (1): (a) the unequivocal agreement to the prorogation by the parents is demonstrated by merely the lodging of the application before the Greek court, (b) the prosecutor before the first instance courts is one of the parties who must agree to the prorogation at the time of the lodging of the application, given that under Greek law he is legally a party to the relevant proceedings, (c) the prorogation of jurisdiction is in the best interests of the child, given that the child and the applicants, who are the child’s parents, are habitually resident in Italy, while the place of residence of the person from whom property is inherited at the time of his death was Greece and the property inherited is in Greece.

(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).
2.

May it be held that the abovementioned tax deposit, given its amount, which may be up to the value of EUR 500 000 as in the present case, is consistent with the freedom to conduct a business under Article 16 [of the Charter of Fundamental Rights of the European Union], does not directly force the taxable person to declare bankruptcy, does not constitute discrimination under Article 21(1) [of the Charter] and does not constitute a breach, in the area of the levying of VAT, of the ne bis in idem principle or of the prohibition on retroactivity under Article 49(1) and (3) of the Charter?