ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 246/34

Action brought on 14 July 2010 — European Parliament v Council of the European Union

(Case C-355/10)

()

2010/C 246/58

Language of the case: English

Parties

Applicant: European Parliament (represented by: M. Dean, A. Auersperger Matić, Agents)

Defendant: Council of the European Union

The applicant claims that the Court should:

— Annul Council Decision 2010/252/EU (1) of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;

— Order that the effects of the Council Decision be maintained until it is replaced;

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

Pleas in law and main arguments

Parliament seeks the annulment of the contested Decision on the grounds that it exceeds the scope of the implementing power in Article 12(5) of the Schengen Borders Code (2) in that it introduces rules on ‘interception’, ‘search and rescue’ and ‘disembarkation’ which cannot be considered to be within the scope of ‘surveillance’ as defined by Article 12 of the Schengen Borders Code and which cannot be considered to be non-essential elements, and modifies the essential elements of the Schengen Borders Code which are reserved to the legislator. Moreover, the contested Decision modifies the obligations of the EU Member States relating to Frontex operations, which are laid down in the Frontex Regulation (3).

Should the Court annul the contested Decision, Parliament nonetheless considers it would be desirable that the Court exercise its discretion to maintain the effects of the contested Decision, in accordance with Article 264 (2) TFEU, until such time as it is replaced.

(1) Council Decision of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

OJ L 111, p. 20

(2) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)

OJ L 105, p. 1

(3) Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

OJ L 349, p. 1
EN Official Journal of the European Union C 246/21

Action brought on 16 June 2010 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-301/10)

()

2010/C 246/36

Language of the case: English

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán, Agent, A.-A. Gilly, Agent)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

— declare that, by failing to ensure that appropriate collecting systems pursuant to Articles 3(1) and (2) and Annex I(A) to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (1) are in place in Whitburn and the Beckton and Crossness collecting systems in London, and that appropriate treatment is provided with regard to waste waters from the Beckton, Crossness and Mogden waste water treatment plants in London pursuant to Articles 4(1), 4(3) and 10 of, and Annex I(B) to, the Directive, the United Kingdom of Great Britain and Northern Ireland has failed to comply with its obligations under these provisions.

— order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

Pursuant to Articles 3(1) and (2) of, and Annex I(A) to, Council Directive 91/271/EEC, the United Kingdom is required to ensure that collecting systems are provided for all agglomerations of more than 15,000 population equivalent by 31 December 2000 at the latest and that those collecting systems satisfy the requirements of Annex I(A) to the Directive. Pursuant to Articles 4(1) and (3) of, and Annex I(B) to, that Directive, the United Kingdom is also required to ensure that urban waste water entering collecting systems are, before discharge, subject to secondary treatment or an equivalent treatment for all discharges from agglomerations of more than 15,000 population equivalent by 31 December 2000 at the latest and that discharges from urban waste water treatment plants satisfy the standards to be met for discharges from urban waste water treatment plants to receiving waters.

As the United Kingdom operates a combined system of collection for both urban waste waters and rainwater run off in the London area, that system must be designed to ensure that the waters collected are retained and conducted for treatment in accordance with the requirements set out in the Directive. The United Kingdom has failed to ensure that the collecting systems are designed and built so as to collect all the urban waste water generated by the agglomerations they serve and that they are conducted for treatment. The capacity of the collecting system must be able to take into account natural climatic conditions and seasonal variations. The United Kingdom has infringed the requirements of the Directive in failing to provide adequate collecting systems and treatment facilities in the London and Whitburn areas and allowing excessive quantities of untreated waste water to spill into the environment without treatment.

(1) OJ L 135, p. 40
4.

First, the Court was incorrect to have found that Articles 60 and 301 EC provided an adequate legal base for the Regulation. The Appellant contends that there is an insufficient link between the Appellant and the military regime of Burma/Myanmar. He is not a ruler of Burma/Myanmar nor a person associated with a ruler, and is not controlled, directly or indirectly, by a ruler. The fact that he is the son of someone whom the Council considers to have benefited from the regime is insufficient. The General Court erroneously stated that since (in its view) the institutions would have had the power to impose a more far-reaching trade embargo on Burma/Myanmar, a fortiori it has the power to impose this asset freezing measure on an individual.
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (1) or, in any event, by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
Reference for a preliminary ruling from the Audiencia Provincial de Oviedo (Spain) lodged on 13 July 2010 — Ángel Lorenzo González Alonso v Nationale Nederlanden Vida Compañía de Seguros y Reaseguros S.A.E.

(Case C-352/10)

()

(2010/C 288/29)

Language of the case: Spanish

Referring court

Audiencia Provincial de Oviedo

Parties to the main proceedings

Applicant: Ángel Lorenzo González Alonso

Defendant: Nationale Nederlanden Vida Compañía de Seguros y Reaseguros S.A.E.

Question referred

Must Article 3(2)(d) of Council Directive 85/577/EEC (1) of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises be interpreted restrictively so as not to cover a contract, concluded away from business premises, under which life assurance is offered in return for payment of a monthly premium to be invested, in varying proportions, in fixed-rate investments, variable-rate investments and financial investment products of the company itself?

(1) OJ 1985 L 372, p. 31.
—

declare that the Republic of Estonia has failed to notify the measures necessary to transpose Directive 2008/13/EC of the European Parliament and of the Council of 11 March 2008 repealing Council Directive 84/539/EEC on the approximation of the laws of the Member States relating to electro-medical equipment used in veterinary medicine; (1)
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to implement Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), (1) or by failing fully to inform the Commission thereof, the Federal Republic of Germany has failed to fulfil its obligations under that directive;
Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 19 July 2010 — Belgische Vereniging van Auteurs, Componisten en Uitgevers (Sabam) v Netlog NV

(Case C-360/10)

()

(2010/C 288/30)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Belgische Vereniging van Auteurs, Componisten en Uitgevers (Sabam)

Defendant: Netlog NV

Question referred

Do Directives 2001/29 (1) and 2004/48, (2) in conjunction with Directives 95/46, (3) 2000/31 (4) and 2002/58, (5) construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: ‘They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’, to order a hosting service provider to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently to block the exchange of such files?

(1) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

(2) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights (OJ 2004 L 157, p. 45).

(3) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

(4) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

(5) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).
EN Official Journal of the European Union C 301/18

Appeal brought on 15 September 2010 by Grain Millers, Inc. against the judgment of the General Court (Seventh Chamber) delivered on 9 July 2010 in Case T-430/08: Grain Millers, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Grain Millers GmbH & Co. KG,

(Case C-447/10 P)

()

2010/C 301/26

Language of the case: English

Parties

Appellant: Grain Millers, Inc. (represented by: L.-E. Ström, K. Martinsson, advokater)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Grain Millers GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

— Grain Millers, Inc. requests that the decision of the General Court of the European Union (Seventh Chamber), case no. T-430/08, dated 9 July 2010 confirming the decision of the Second Board of Appeal of OHIM of 23 July 2008 (case R 478/2007-2) concerning opposition proceedings between Grain Millers GmbH & Co. KG and Grain Millers, Inc be set aside in its entirety and that the OHIM be ordered to pay the costs of the proceedings before the European Court of Justice and the General Court and that the defendants are ordered to pay the costs incurred before the OHIM Board of Appeal and the OHIM Opposition division.

Pleas in law and main arguments

The case concerns the issue of whether Grain Millers GmbH & KG has provided sufficient evidence of use of the sign GRAIN MILLERS to fulfil the conditions in Article 8 (4) of the Regulation (1) so that said sign constitutes a bar to the Appellant's CTM application no. 003650256 GRAIN MILLERS.

The General Court has previously, in the case Alberto Jorge Moreira da Fonsecal OHIM — General Optica, T-318/06 to T-321/06, paragraphs 33-35, 24 March 2009 addressed the interpretation of the purpose of the condition ‘of more than mere local significance’ found in Article 8(4) of the Regulation, namely to restrict the possibilities of conflict to those which may exist with signs which are truly significant and that this should be assessed not only from geographical dimension but also from an economical dimension of the sign's significance, which is assessed in the light of the length of time for which it has fulfilled its function in the course of trade and the degree to which it has been used. However, in the appealed decision the General Court has not adopted this approach, and there is nothing that suggests the General Court even was aware of the principles laid down in that case.

The applicant submits that the General Court has erroneously held that Article 8(4) does not require proof of genuine use of the sign in support of the opposition as is required by Article 43(2) of the Regulation.

The General Court has erroneously set aside previous case law regarding assessment of evidence and the requisite standard of proof.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1
EN Official Journal of the European Union C 328/15

Appeal brought on 15 September 2010 by Télévision française 1 SA (TF1) against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Joined Cases T-568/08 and T-573/08 M6 and TF1 v Commission

(Case C-451/10 P)

()

2010/C 328/27

Language of the case: French

Parties

Appellant: Télévision française 1 SA (TF1) (represented by: J.-P Hordies, lawyer)

Other parties to the proceedings: Métropole télévision (M6), Canal +, European Commission, French Republic, France Télévisions

Form of order sought

— declare the present appeal admissible and well-founded;

— set aside the judgment delivered by the General Court of the European Union on 1 July 2010 in Joined Cases T-568/08 and T-573/08, M6 and TF1 v Commission;

— order the Commission to pay all the costs.

Pleas in law and main arguments

The appellant relies on two pleas in support of its appeal.

Télévision française 1 SA (TF1) criticises the General Court for having disregarded, confirming the Commission’s position in that respect, the existence of serious difficulties in assessing the compatibility with the common market of aid received by France Télévisions, difficulties which should have led to the initiation of a formal investigation procedure provided for in Article 108(2) TFEU. Therefore, by its first plea, the appellant relies on infringement of rules relating to the burden of proof and the taking of evidence in that the General Court requested the applicants to adduce evidence that serious doubts existed as to the actual use to which the endowment notified was put, rather than accepting the evidence that the aid had not been allocated.

By its second plea, the appellant submits that the General Court erred in law in applying Article 106(2) TFEU holding, first, that the falls in advertising revenue, even caused by management errors, could be offset by State aid and, second, by stating that the application of Article 106(2) did not require an assessment of the efficient functioning of public service.
EN Official Journal of the European Union C 328/16

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 17 September 2010 — Asociación Nacional De Expendedores De Tabaco y Timbre (ANETT) v Administración Del Estado

(Case C-456/10)

()

2010/C 328/30

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Asociación Nacional De Expendedores De Tabaco y Timbre (ANETT)

Defendant: Administración Del Estado

Question referred

Should Article 34 of the Treaty on the Functioning of the European Union (ex Article 28 EC) be interpreted as meaning that the prohibition imposed under Spanish national law on tobacco outlet licence holders against engaging in the activity of importing manufactured tobacco products from other Member States constitutes a quantitative restriction on imports or a measure having equivalent effect as prohibited by the Treaty?
EN Official Journal of the European Union C 346/33

Reference for a preliminary ruling from the Tribunal Administratif de Rennes (France) lodged on 11 October 2010 — L’Océane Immobilière SAS v Direction de contrôle fiscal Ouest

(Case C-487/10)

()

2010/C 346/55

Language of the case: French

Referring court

Tribunal Administratif de Rennes

Parties to the main proceedings

Applicant: L’Océane Immobilière SAS

Defendant: Direction de contrôle fiscal Ouest

Question referred

Does Article 5 of the Sixth Council Directive 77/388/EEC of 17 May 1977 (1) allow a Member State to maintain in force or establish a provision imposing value added tax on the supply by a taxable person to itself of property for the use of its business, although that supply gives rise to a right to deduct the value added tax thereby levied immediately and in full?

(1) Sixth Council Directive 77/388/EEC 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 (OJ 1977 L 145, p. 1).
EN Official Journal of the European Union C 346/24

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza (Italy) lodged on 5 July 2010 — Enipower Spa v Autorità per l’Energia Elettrica e il Gas

(Case C-328/10)

()

2010/C 346/39

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza

Parties to the main proceedings

Applicant: Enipower Spa

Defendant: Autorità per l’Energia Elettrica e il Gas

Question referred

Do Articles 23, 43, 49 and 56 of the Treaty and Article 11(2) and (6) and Article 24 of Directive 54/03/EC (1) preclude national legislation which, without the European Commission having been notified, requires on a permanent basis certain electricity producers which are, in certain circumstances, essential for the purpose of meeting the requirements of the demand for dispatching services, to submit bids on the energy exchange markets, in accordance with programmes determined by the network operator in accordance with external rules, and which prevents producers from freely determining the remuneration for such bids by linking the remuneration to criteria that have not been pre-determined according to transparent, non-discriminatory and market-based procedures?

(1) OJ 2003 L 176, p. 37
2(a)

If the answer to the previous question has the effect that legislation which provides for the imposition of tax by a service recipient hinders the freedom to provide services, can such a hindrance then be justified by the need to ensure that taxes are levied and collected from foreign companies whose stay in the Netherlands is short and which are difficult to control, with the result that the execution of the taxing powers allocated to the Netherlands becomes problematic?
EN Official Journal of the European Union C 13/21

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 2 November 2010 — Yeda Research and Development Company Ltd, Aventis Holdings Inc v Comptroller-General of Patents

(Case C-518/10)

()

2011/C 13/39

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicants: Yeda Research and Development Company Ltd, Aventis Holdings Inc

Defendant: Comptroller-General of Patents

Question referred

If the criteria for deciding whether a product is ‘protected by a basic patent in force’ under Article 3(a) o the Regulation (1) include or consist of an assessment of whether the supply of the product would infringe the basic patent, does it make any difference to the analysis if infringement is by way of indirect or contributory infringement based on Article 26 of the Community Patent Convention, enacted as s60(2) Patents Act 1977 in the UK, and the corresponding provisions in the laws of other Member States of the Community?

(1) Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products

OJ L 152, p. 1
EN Official Journal of the European Union C 30/27

Action brought on 26 November 2010 — European Commission v Republic of Austria

(Case C-555/10)

()

2011/C 30/45

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Braun and H. Støvlbæk, Agents)

Defendant: Republic of Austria

Form of order sought

— Hold that the Republic of Austria, when implementing the first railway package, failed to comply with its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC in its amended version and Article 4(2) and Article 14(2) of Directive 2001/14/EC;

— Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission is of the opinion that the required independence of the operator of railway infrastructure in Austria has not been properly implemented in national law.

Admittedly the organisation in a common holding of an undertaking which is to carry out essential functions in relation to the operation of railway infrastructure and an undertaking which provides rail transport services, as it exists in Austria, is in principle permissible. It must however be ensured that the undertakings are ascertainably economically independent of each other.

The parent company may in particular not exercise any control over the subsidiary which carries out essential railway infrastructure functions. That is not guaranteed in Austria. The independence of the infrastructure operator is not supervised by any independent agency and there is no effective means of redress for competitors where a particular undertaking receives advantages.

There are also insufficient legislative or contractual rules governing the relationship between the holding company and its subsidiary which carries out essential railway infrastructure functions.

According to the Commission, the manifold entanglements of staff between parent and subsidiary undertakings, for example dual roles in the respective company boards, give rise to doubts as to economic independence. Management personnel of one undertaking should be precluded for several years from taking up management positions in the other undertaking. Moreover, appointments of managers to the body entrusted with essential functions should be made only subject to supervision by an independent agency.

In addition, there should be a physical and personal separation of respective computer systems, in order to ensure the required independence of the undertaking entrusted with essential functions of railway infrastructure operations.