ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 173/4

Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 25 February 2011 — Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH v Öko-Invest Verlagsgesellschaft mbH; Other party: Deutsches Patent- und Markenamt

(Case C-91/11)

2011/C 173/06

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant: Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH

Defendant: Öko-Invest Verlagsgesellschaft mbH

Other party: Deutsches Patent- und Markenamt

Question referred

Is the ground for refusal under Article 3(1)(b) and/or (c) of Directive 2008/95/EG (1) also applicable to a word sign which consists of a letter sequence which is non-descriptive — when considered on its own — and a descriptive word combination, if the trade perceives the letter sequence as an abbreviation of the descriptive words because it reproduces their initial letters, and the trade mark as a whole can thus be construed as a combination of mutually explanatory descriptive indications or abbreviations?

(1) Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Codified version) (Text with EEA relevance); OJ 2008 L 299, p. 25.
EN Official Journal of the European Union C 160/13

Action brought on 28 March 2011 — European Commission v Kingdom of Belgium

(Case C-150/11)

2011/C 160/16

Language of the case: French

Parties

Applicant: European Commission (represented by: O. Beynet and A. Marghelis, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that, by requiring, in addition to the production of a certificate of registration, the production of a certificate of conformity of a vehicle for the purpose of a roadworthiness test prior to the registration of a vehicle which was previously registered in another Member State, and by making vehicles which were previously registered in another Member State subject to a roadworthiness test prior to their registration without taking into account the results of the roadworthiness test carried out in another Member State, the Kingdom of Belgium has failed to fulfil its obligations under Council Directive 1999/37/EC of 29 April 1999 on the registration documents for vehicles (1) and Article 34 of the Treaty on the Functioning of the European Union;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission puts forward two complaints in support of its action alleging that the national legislation which, first, requires the production of a certificate of conformity before the registration of a vehicle which was previously registered in another Member State and, secondly, refuses to take into account the results of the roadworthiness test carried out previously in that other State, fails to comply with Article 34 of the Treaty on the Functioning of the European Union and with Directive 1999/37/EC.

By its first complaint the Commission alleges that the defendant imposed in a general and systematic way a roadworthiness test prior to the registration of second-hand vehicles which were previously registered in other Member States without taking into account possible tests already carried out in those States. Such a test is capable of dissuading some interested parties from importing second-hand vehicles which were previously registered in other Member States into Belgium and therefore constitutes a barrier to the free movement of goods, which is prohibited by Article 34 TFEU.

By its second complaint the Commission submits that, according to the national legislation, an application for registration cannot be validated without a roadworthiness test certificate, which is issued by the Belgian authorities only on the condition that a certificate of conformity is produced, which has to be submitted in addition to the certificate of registration issued in another Member State. Such legislation is contrary to Article 4 of Directive 1999/37/EC and renders meaningless the principle of recognition of harmonised registration certificates issued by other Member States. Such a measure, although applicable equally to vehicles registered in Belgium or in another Member State, affects second-hand vehicles from another Member State more inasmuch as, in most of the Member States, the certificate of conformity does not come with the vehicle.

(1) OJ 1999 L 138, p. 57.
EN Official Journal of the European Union C 179/8

Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 18 March 2011 — Jürgen Blödel-Pawlik v HanseMerkur Reiseversicherung AG

(Case C-134/11)

2011/C 179/13

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Applicant: Jürgen Blödel-Pawlik

Defendant: HanseMerkur Reiseversicherung AG

Question referred

Does Article 7 of Directive 90/314/EEC (1) of 13 June 1990 on package travel, package holidays and package tours also apply when the travel operator becomes insolvent because from the beginning with fraudulent intent it used all the money collected from the travellers for an improper purpose and it was never intended that the trip would be organised?

(1) Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).
EN Official Journal of the European Union C 179/13

Appeal brought on 26 April 2011 by European Commission against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-122/09: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd v Council of the European Union

(Case C-195/11 P)

2011/C 179/24

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Maxian Rusche, H. van Vliet, Agents)

Other parties to the proceedings: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd, Council of the European Union

Form of order sought

The appellant claims that the Court should:

— set aside the Judgment;

— order the Applicants to pay the Commission's costs in bringing this Appeal.

Pleas in law and main arguments

Point 1 of the operative part of the contested judgment annuls Council regulation (EC) no 1355/2008 (1) insofar as it concerns Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd (‘the applicants’), thereby fully annulling the anti-dumping duty imposed, leading to a zero anti-dumping duty on imports by the applicants.

The Commission submits that the General Court has ruled ultra petita by fully annulling the duty even though the applicants themselves admit that the adjustment that they had been seeking would only have led to a lower anti-dumping duty being imposed on their products.

Therefore, in the view of the Commission, the operative part of the contested judgment violates article 264, first paragraph, in conjunction with article 254, sixth paragraph, of the TFEU and the principle of proportionality. The annulment of the whole regulation insofar as it concerns the applicants is disproportionate to the only ground for annulment which was accepted by the General Court. It is also ultra petita.

(1) Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China

OJ L 350, p. 35
EN Official Journal of the European Union C 204/14

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 22 April 2011 — Daniela Mühlleitner v Ahmad Yusufi and Wadat Yusufi

(Case C-190/11)

2011/C 204/27

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Daniela Mühlleitner

Respondents: Ahmad Yusufi and Wadat Yusufi

Question referred

Does the application of Article 15(1)(c) 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 (1) presuppose that the contract between the consumer and the undertaking has been concluded at a distance?

(1) OJ 2001 L 12, p. 1.
EN Official Journal of the European Union C 211/11

Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen (Vienna) lodged on 20 April 2011 — Peter Hehenberger v Republic of Austria

(Case C-188/11)

2011/C 211/22

Language of the case: German

Referring court

Landesgericht für Zivilrechtssachen (Vienna)

Parties to the main proceedings

Applicant: Peter Hehenberger

Defendant: Republic of Austria

Question referred

Does Council Regulation (EC) No 1257/1999 (1) in conjunction with Commission Regulation (EC) No 817/2004 (2) preclude the laying down of rules by the provider of support requiring repayment by the recipient, in the event that an on the-spot check (area measurement) is prevented, of all support already given in the context of an agri-environmental measure during the commitment period, even if it has been awarded and disbursed for a number of years?

(1) Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).

(2) Corrigendum to Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2004 L 153, p. 30) (OJ 2004 L 231, p. 24).
3.

Is a rule of an occupational social security scheme which provides that, in the case of employees older than 54 years of age who are made redundant on operational grounds, an alternative calculation will be made of the compensation on the basis of the earliest possible date on which their pension will begin and, by comparison with the more normal method of calculation, will in particular take account of the length of service, whereby the smaller amount of compensation, of at least one half of the normal sum in compensation, will be paid, contrary to the prohibition of discrimination on the ground of age laid down by Articles 1 and 16 of Directive 2000/78/EC, or is that unequal treatment justified under Article 6(1), second sentence, point (a), of Directive 2000/78/EC?
(a)

The Treaty states in Article 282, now Article [335], that the European Union is to be represented by the Commission; — Article 335 of the Treaty on the Functioning of the European Union, on the one hand, and Articles 103 and 104 of the Financial Regulation, on the other, state that, in administrative matters relating to their operation, the institutions concerned are to represent the European Union, with the possible result that [it] is the institutions, whether or not exclusively, … which may be parties to legal proceedings; — there is no doubt that receipt by contractors, etc., of payment … of inflated prices as a result of collusive practices comes within the concept of fraud; — in Belgian national law there is the principle of ‘Lex specialis generalibus derogat’; — to the extent [to which] that principle of law also finds acceptance in European law, is it then not the case that the initiative for bringing the claims (except where the Commission itself was the contracting authority) was vested in the institutions concerned?
EN Official Journal of the European Union C 211/14

Reference for a preliminary ruling from the Commissione tributaria regionale di Milano (Italy) lodged on 2 May 2011 — 3D I srl v Agenzia delle Entrate — Ufficio di Cremona

(Case C-207/11)

2011/C 211/26

Language of the case: Italian

Referring court

Commissione tributaria regionale di Milano

Parties to the main proceedings

Applicant: 3D I srl

Defendant: Agenzia delle Entrate — Ufficio di Cremona

Question referred

Where the legislation of a Member State — such as the Italian legislation laid down in Article 2(2) of Legislative Decree No 544 of 30 December 1992 — provides that, in consequence of a transfer or exchange of shares, the transferring company is to be taxed on the capital gains arising from the transfer and the capital gain is to be deemed to correspond to the difference between the initial cost of acquiring the shares or holdings transferred and their current market value, unless the transferring company carries over in its own balance sheet a special reserve fund equivalent to the capital gains arising upon the transfer, is that legislation, in the circumstances of the case covered by the present proceedings, incompatible with Articles 2, 4 and 8(1) and (2) of Council Directive 90/434/EEC (1) 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?

(1) OJ L 225, p. 1.
EN Official Journal of the European Union C 226/11

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 9 May 2011 — Jyske Bank Gibraltar Limited v Administración del Estado

(Case C-212/11)

2011/C 226/21

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Jyske Bank Gibraltar Limited

Defendant: Administración del Estado

Question referred

Does Article 22(2) of Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing permit a Member State to make it a mandatory requirement that the information which must be provided by credit institutions operating in its territory without a permanent establishment be forwarded directly to its own authorities responsible for the prevention of money laundering, or, on the other hand, must the request for information be directed to the Financial Intelligence Unit of the Member State in whose territory the addressee institution is situated?

(1) OJ 2005 L 309, p. 15.
1.

In a case where an applicant seeks subsidiary protection status following a refusal to grant refugee status and it is proposed that such an application should be refused, does the requirement to cooperate with an applicant imposed on a Member State in Article 4(1) of Council Directive 2004/83/EC (1) require the administrative authorities of the Member State in question to supply such applicant with the results of such an assessment before a decision is finally made so as to enable him or her to address those aspects of the proposed decision which suggest a negative result?
EN Official Journal of the European Union C 232/21

Action brought on 10 June 2011 — Italian Republic v Council of the European Union

(Case C-295/11)

2011/C 232/34

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Palmieri, Agent, and S. Fiorentino, Avvocato dello Stato)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (2011/167/EU) (1);

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

Pleas in law and main arguments

In support of its action, the Italian Republic raises four pleas in law.

First, it submits that the enhanced cooperation procedure was authorised by the Council outside the limits provided for in the first subparagraph of Article 20(1) TEU, according to which such a procedure is to be allowed only within the framework of the European Union’s non-exclusive competences. The European Union has an exclusive competence to create ‘European rules’ which have Article 118 TFEU as their legal basis.

Second, it submits that the authorisation of enhanced cooperation in the present case is contrary to — or, in any event, not compatible with — the objectives in view of which such cooperation is provided for by the Treaties. In so far as that authorisation is contrary to, if not the letter, at least the spirit of Article 118 TFEU, it infringes Article 326(1) TFEU, in that the latter requires enhanced cooperation to comply with the Treaties and with EU law.

Third, the Italian Republic submits that the authorisation decision was adopted without an appropriate inquiry with regard to the last resort requirement and without an adequate statement of reasons on that point.

Lastly, according to the Italian Republic, the authorisation decision infringes Article 326 TFEU in that it adversely affects the internal market, introducing a barrier to trade between Member States and discrimination between undertakings, causing distortion of competition. Furthermore, it does not help to reinforce the EU’s integration process, and is thus contrary to the second subparagraph of Article 20(1) TEU.

(1) OJ 2011 L 76, p. 53.
EN Official Journal of the European Union C 238/5

Action brought on 26 May 2011 — European Commission v Kingdom of Denmark

(Case C-261/11)

2011/C 238/09

Language of the case: Danish

Parties

Applicant: European Commission (represented by: R. Lyal and N. Fenger, acting as Agents)

Defendant: Kingdom of Denmark

Form of order sought

— declare that, by introducing and maintaining legislation on immediate taxation on exit of companies’ transfers of assets to another Member State without taxing corresponding transfers of assets within Denmark, the Kingdom of Denmark has failed to fulfil its obligations under Article 49 TFEU and Article 31 of the EEA Agreement;

— order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Under Danish tax legislation, the transfer of an undertaking’s assets for use outside Denmark is regarded as a sale and is taxed accordingly, whereas an undertaking within the country is regarded as having ceased only when the assets in question are in actual fact sold. An undertaking which transfers assets between different establishments within Denmark is thus not taxed on the value of those assets in connection with such a transfer. If, however, the same undertaking transfers assets to a fixed establishment outside Denmark, it will immediately pay tax on the value of the assets in the same way as if the assets had been sold.

In the Commission’s view, that difference in treatment constitutes an obstacle to the freedom of establishment, contrary to Article 49 TFEU. The Commission does not call into question Denmark’s ability to impose tax on increases in value received by an undertaking while it is established in Denmark. However, the Commission finds that the circumstances on the basis of which the tax liability arises should be the same, that is, the realisation of an asset or a factor as a result of which depreciation can be adjusted, regardless of whether the capital values concerned are transferred abroad or remain in Denmark.

In the Commission’s view, there is no reason for tax to be collected immediately with respect to unrealised increases in value in connection with the transfer of assets in Denmark to another Member State if such a tax is not imposed in equivalent national situations. The Kingdom of Denmark could thus, for example, determine the value of the unrealised increases in value which it considers it has the right to tax, without that implying the immediate collection of tax or compliance with further conditions for deferring payment of tax.
1.

Are Articles 179(1), 180 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principle of effectiveness in the field of indirect taxation, which is discussed in the judgment of the Court of Justice in Joined Cases C-95/07 and C-96/07 Ecotrade, to be interpreted as permitting an exclusion period such as that in the present case under Article 72(1) of the Law on value added tax (2008 version), which period was extended — under Section 18 of the transitional and concluding provisions of the Law amending and complementing the Law on value added tax — until the end of April 2009 only for recipients of supplies who became taxable before 1 January 2009, taking into account the circumstances of the dispute in the main proceedings, that is to say: — the requirement under national law that a person who has made an intra-Community acquisition and who is not registered under the Law on value added tax register voluntarily as a precondition for exercising the right to deduct input VAT, even though that person does not meet the conditions for compulsory registration; — the new rule under Article 73a of the Law on value added tax (in force since 1 January 2009) whereby the right to deduct input value added tax is to be granted irrespective of whether the time-limit under Article 72(1) of the Law on value added tax was complied with, if the tax is chargeable to the recipient of the supply, provided the supply was not concealed and is documented in the accounts; — the subsequent amendment of Article 72(1) of the Law on value added tax (in force since 1 January 2010), whereby the right to deduct input value added tax may be exercised during the tax period in which that right arose or in one of the subsequent twelve tax periods?
EN Official Journal of the European Union C 252/25

Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 28 June 2011 — K

(Case C-322/11)

2011/C 252/46

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Appellant: K

Other parties: Veronsaajien oikeudenvalvontayksikkö, Valtiovarainministeriö

Question referred

Must Articles 63 TFEU and 65 TFEU be interpreted as precluding national legislation under which a person with general liability to tax in Finland cannot deduct a loss incurred on the transfer of immovable property situated in France from gains on the transfer of shares taxable in Finland, whereas a person with general liability to tax in Finland may on certain conditions deduct a loss on the transfer of equivalent immovable property situated in Finland from gains on transfer?