ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 107/7

Judgment of the Court (Second Chamber) of 6 March 2008 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Comisión del Mercado de las Telecomunicaciones v Administración del Estado

(Case C-82/07) (1)

(Electronic communications - Networks and services - Articles 3(2) and 10(1) of Directive 2002/21/EC (Framework Directive) - National numbering plans - Specific regulatory authority)

(2008/C 107/10)

Language of the case: Spanish

Referring court

Tribunal Supremo (Spain)

Parties to the main proceedings

Applicant: Comisión del Mercado de las Telecomunicaciones

Defendant: Administración del Estado

Re:

Interpretation of Articles 3(1), (2) and (4) and 10(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 2000 L 108, p. 33) — Allocation of national numbering resources and management of national numbering plans — Regulatory and operational tasks entrusted to a specific authority

Operative part of the judgment

1. Articles 3(2), 3(4) and 10(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), read in conjunction with Recital (11) in the preamble to that directive, must be interpreted as meaning that the assignment of the national numbering resources and the management of the national numbering plans must be regarded as regulatory functions. Member States are not required to allocate those different functions to separate regulatory authorities.

2. Article 10(1) and Article 3(2), (4) and (6) of Directive 2002/21 must be interpreted as not precluding the functions of assigning national numbering resources or of managing national numbering plans from being shared by a number of independent regulatory authorities, provided that the allocation of the tasks is made public and easily accessible, and notified to the Commission of the European Communities.

(1) OJ C 82, 14.4.2007.
EN Official Journal of the European Union C 79/10

Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-268/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/17/EC - Public procurement proceedings in the water, energy, transport and postal services sectors)

(2008/C 79/17)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky and D. Kukovec, acting as Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1)

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 211, 8.9.2007.
EN Official Journal of the European Union C 158/8

Judgment of the Court (Seventh Chamber) of 8 May 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-392/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/19/EC - Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States - Failure to transpose within the period prescribed)

(2008/C 158/11)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal, acting as Agent)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Council Directive 2005/19/EC of 17 February 2005 amending Directive 90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 2005 L 58, p. 19)

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/19/EC of 17 February 2005 amending Directive 90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 235, 6.10.2007.
EN Official Journal of the European Union C 128/13

Judgment of the Court (First Chamber) of 10 April 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden, Netherlands) — adidas AG, adidas Benelux BV v Marca Mode CV, C&A Nederland, H&M Hennes & Mauritz Netherlands BV, Vendex KBB Nederland BV

(Case C-102/07) (1)

(Trade marks - Articles 5(1)(b), 5(2) and 6(1)(b) of Directive 89/104/EEC - Requirement of availability - Three-stripe figurative marks - Two-stripe motifs used by competitors as decoration - Complaint alleging infringement and dilution of the mark)

(2008/C 128/21)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicants: adidas AG, adidas Benelux BV

Defendants: Marca Mode CV, C&A Nederland, H&M Hennes & Mauritz Netherlands BV, Vendex KBB Nederland BV

Re:

Preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 3(1)(b) and (c) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Non-registration or invalidity — Lack of distinctive character — Acquisition through usage — General interest in not restricting unduly the availability of signs perceived by the relevant public as signs serving to embellish a product and not to distinguish it

Operative part of the judgment

First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the requirement of availability cannot be taken into account in the assessment of the scope of the exclusive rights of the proprietor of a trade mark, except in so far as the limitation of the effects of the trade mark defined in Article 6(1)(b) of the Directive applies.

(1) OJ C 82, 14.4.2007.
2.

The first paragraph of Article 90 EC is to be interpreted as precluding an excise duty, such as that at issue in the main proceedings, in so far as the amount of the duty imposed on the sale, before their first registration, of second-hand vehicles imported from another Member State exceeds the residual amount of the same duty incorporated into the market value of similar vehicles previously registered in the Member State which introduced that duty. It is for the national court to examine whether the legislation at issue in the main proceedings, and in particular the application of Article 7 of the Order of the Minister for Finance on the lowering of the rates of excise duty (rozporządzenie Ministra Finansów w sprawie obniżenia stawek podatku akcyzowego) of 22 April 2004, has such an effect.
1.

A camcorder may be classified under subheading 8525 40 99 of the Combined Nomenclature in Annex 1 to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff as amended by Commission Regulation (EC) No 2261/98 of 26 October 1998, Commission Regulation (EC) No 2204/1999 of 12 October 1999, Commission Regulation (EC) No 2388/2000 of 13 October 2000 and Commission Regulation (EC) No 2031/2001 of 6 August 2001 only if the function for recording images and sounds from sources other than the integrated camera or microphone is active at the time of customs clearance or if, even though the manufacturer did not intend to promote that characteristic, that function may be activated subsequently by simple modification of the apparatus by a user who does not have special skills, without modification of the camcorder's hardware. Where the camcorder is activated subsequently, it is also necessary, first, that, once activated, it functions in a manner similar to that of another camcorder whose function for recording images and sounds from sources other than the integrated camera or microphone is active at the time of customs clearance and, second, that it functions independently. The existence of those conditions must be capable of being ascertained at the time of customs clearance. It is for the national court to establish whether those conditions are fulfilled. If those conditions are not fulfilled the camcorder must be classified under subheading 8525 40 91 of the Combined Nomenclature.
1.

Declares that, by failing to ensure that that undertakings which operate public telephone networks make, in so far as it is technically feasible, caller location information available to authorities handling emergencies for calls to the single European emergency call number ‘112’, the Slovak Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive);
EN Official Journal of the European Union C 327/3

Judgment of the Court (Second Chamber) of 6 November 2008 — Hellenic Republic v Commission of the European Communities

(Case C-203/07 P) (1)

(Appeal - Project to set up a common diplomatic representation in Abuja (Nigeria) - Reimbursement of sums owed by the Hellenic Republic - Offsetting against the amount to be paid by the Commission under the Regional Operational Programme for mainland Greece)

(2008/C 327/04)

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: P. Mylonopoulos, S. Trekli and Z. Stavridi, acting as Agents)

Other party to the proceedings: Commission of the European Communities (represented by: I. Zervas and D. Triantafyllou, acting as Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (First Chamber) of 17 January 2007 in Case T-231/04 Hellenic Republic v Commission of the European Communities, by which the Court of First Instance dismissed as unfounded an action for annulment of the Commission decision to proceed to recovery by the offsetting of sums owed by Greece following its participation in the Abuja I and II projects to create a common diplomatic mission of the countries of the European Union in Abuja (Nigeria)

Operative part of the judgment

The Court:

1. Dismisses the appeal.

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 155, 7.7.2007.
EN Official Journal of the European Union C 301/10

Judgment of the Court (First Chamber) of 2 October 2008 (reference for a preliminary ruling from the Supreme Court — Ireland) — Nicole Hassett v South Eastern Health Board, Cheryl Doherty v North Western Health Board

(Case C-372/07) (1)

(Jurisdiction - Regulation (EC) No 44/2001 - Point 2 of Article 22 - Disputes as to the validity of decisions of organs of companies - Exclusive jurisdiction of the courts of the State where the company has its seat - Medical practitioners' mutual defence organisation)

(2008/C 301/19)

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicants: Nicole Hassett, Cheryl Doherty

Defendants: South Eastern Health Board, North Western Health Board

In the presence of: Raymond Howard, Medical Defence Union Ltd, MDU Services Ltd, Brian Davidson

Re:

Reference for a preliminary ruling — Supreme Court — Interpretation of Article 22(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Medical trade union constituted in the form of a company under the law of a Member State, which provides assistance and indemnity to its members practising in the Member State and in another Member State — Provision of the assistance/indemnity dependent on a decision taken by the board of directors of that company under an absolute discretionary power — Challenge to a decision refusing assistance or indemnity to a doctor practising in the other Member State — Exclusive jurisdiction of the courts of the State in which the company has its seat on the basis of Article 22(2) of the regulation

Operative part of the judgment

Point 2 of Article 22 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that proceedings, such as those at issue before the referring court, in the context of which one of the parties alleges that a decision adopted by an organ of a company has infringed rights that it claims under that company's Articles of Association, do not concern the validity of the decisions of the organs of a company within the meaning of that provision.

(1) OJ C 283, 24.11.2007.
1.

Declares that the Hellenic Republic, — by failing to recognise the optician diplomas granted by the competent Italian authorities following training given under an agreement pursuant to which training given in Greece by a private body is homologised by those authorities; — by making consideration of applications for recognition of Italian optician diplomas subject to the provision, by the Italian authorities, of the answers to five questions previously sent to them by the Greek authorities; and — by allowing applicants for recognition of Italian optician diplomas, who applied before entry into force of Law 2916/2001 on the structure of university or similar education and the regulation of questions on the technological sector of that education, no choice between an adaptation period and an aptitude test, has failed to fulfil its obligations under Article 3, the third section of Article 4(1)(b) and Article 12 of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001;
EN Official Journal of the European Union C 6/5

Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v French Republic

(Case C-214/07) (1)

(State aid - Aid scheme - Incompatibility with the common market - Implementation of the decision - Recovery of the aid granted - Absolute impossibility of giving effect to a decision)

(2009/C 6/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Giolito, Agent)

Defendant: French Republic (represented by: G. de Bergues, S. Ramet and J.-C. Gracia, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to take, within the prescribed period, the measures necessary to comply with Commission Decision of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty (State aid C(2003) 4636, OJ 2004 L 108, p. 38) — Failure to take steps to recover the aid illegally granted — Implementation of the decision ordering the recovery of the aid not impossible

Operative part of the judgment

The Court:

1. Declares that, by failing to implement within the prescribed period Commission Decision 2004/343/EC of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty, the French Republic has failed to fulfil its obligations under Article 5 of that decision

2. Orders the French Republic to pay the costs

(1) OJ C 170, 21.7.2007.
EN Official Journal of the European Union C 32/3

Judgment of the Court (First Chamber) of 11 December 2008 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — A.T. v Finanzamt Stuttgart-Körperschaften

(Case C-285/07) (1)

(Directive 90/434/EEC - Cross-border exchange of shares - Fiscal neutrality - Conditions - Articles 43 EC and 56 EC - Legislation of a Member State making the continued use of the book value of the shares transferred in exchange for the new shares received, and therefore the fiscal neutrality of the transfer, conditional on the carryover of that value in the tax balance sheet of the acquiring foreign company - Compatibility)

(2009/C 32/05)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: A.T.

Defendant: Finanzamt Stuttgart-Körperschaften

Intervening party: Bundesministerium der Finanzen

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 8(1) and (2) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1) and of Articles 43 EC and 56 EC — Shareholder receiving securities representing the capital of the acquiring company in exchange for securities of the acquired company — Taxation of the shareholder of the acquired company — Tax legislation of a Member State making the shareholder's attribution of the book value (Buchwertansatz) to the securities received in exchange conditional upon the acquiring company's own attribution of the book value to the securities exchanged (doppelte Buchwertverknüpfung)

Operative part of the judgment

Article 8(1) and (2) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States precludes legislation of a Member State under which, in consequence of an exchange of shares, the shareholders of the acquired company are taxed on the capital gains arising from the transfer and the capital gain is deemed to correspond to the difference between the initial cost of acquiring the shares transferred and their market value, unless the acquiring company carries over the historical book value of the shares transferred in its own tax balance sheet.

(1) OJ C 247, 20.10.2007.
EN Official Journal of the European Union C 32/4

Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Hellenic Republic

(Case C-293/07) (1)

(Failure of a Member State to fulfil obligations - Directives 79/409/EEC and 92/43/EC - Conservation of wild birds - Special protection areas - Insufficient measures of protection)

(2009/C 32/06)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Konstantinidis, D. Recchia and M. Patakia, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), in conjunction with Article 4(4) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Lack of protection for Special Protection Areas (SPAs) — Existence of activities which may damage the integrity of SPAs and have negative consequences for the objectives of conservation of SPAs and of the species for which the areas have been defined

Operative part of the judgment

The Court:

1. Declares that, by failing to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as Special Protection Areas, in the light of the conservation objectives of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2), in conjunction with the first sentence of Article 4(4) of that directive, as amended by Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

2. Dismisses the remainder of the action;

3. Orders the Hellenic Republic to pay the costs.

(1) OJ C 182, 4.8.2007.
1.

Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. The Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, is not decisive for the interpretation of the grounds of exemption under Article 5(3) of Regulation No 261/2004.
EN Official Journal of the European Union C 44/10

Judgment of the Court (Fourth Chamber) of 22 December 2008 — Donal Gordon v Commission of the European Communities

(Case C-198/07 P) (1)

(Appeal - Career development report - Action for annulment - Legal interest in bringing proceedings - Official in a state of total permanent invalidity)

(2009/C 44/16)

Language of the case: English

Parties

Appellant: Donal Gordon (represented by: J. Sambon, P.-P. Van Gehuchten and P. Reyniers, avocats)

Other party to the proceedings: Commission of the European Communities (represented by: J. Currall and H. Krämer, acting as Agents)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 7 February 2007 in Case T-175/04 Gordon v Commission — Action for annulment of the applicant's career development report for the 2001-2002 appraisal procedure — Legal interest in bringing proceedings — Official retired on the ground of total permanent invalidity during the proceedings

Operative part of the judgment

The Court:

1) Sets aside the judgment of the Court of First Instance of the European Communities of 7 February 2007 in Case T-175/04 Gordon v Commission in so far as the Court of First Instance declared that there was no need to rule on the application for annulment brought by Mr Gordon;

2) Dismisses the appeal as inadmissible in so far as it challenges the dismissal of the claim for damages in the judgment of the Court of First Instance referred to;

3) Annuls the decision of the Commission of the European Communities of 11 December 2003 rejecting Mr Gordon's complaint against the decision of 28 April 2003 confirming his career development report for the period from 1 July 2001 to 31 December 2002;

4) Orders the Commission of the European Communities to pay the costs incurred by Mr Gordon before the Court of Justice of the European Communities and the Court of First Instance of the European Communities.

(1) OJ C 129, 9.6.2007.