ddrg/super_eurlex huggingface dataset:
Appeal brought on 21 September 2018 by ABB Ltd, ABB AB against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-445/14: ABB Ltd, ABB AB v European Commission

(Case C-593/18 P)

(2018/C 436/38)

Language of the case: English

Parties

Appellants: ABB Ltd, ABB AB (represented by: I. Vandenborre, advocaat, S. Dionnet, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— annul the Judgment or take such other action as justice may require, and

— order the Commission to pay the costs

Pleas in law and main arguments

First plea-in-law. The General Court erred in law in concluding that the Commission met its burden of proof in establishing an infringement on the part of the appellant that included all underground power cables and accessories with voltages between 110 kV and 220 kV. The General Court failed to verify whether the Decision (1) identified the infringement with ‘sufficient precision’ and according to the requisite legal standard. The General Court also failed to properly apply the conditions to find sufficient awareness to conclude participation in the infringement on the part of the appellant.

Second plea-in-law. The General Court failed to apply the principle of equal treatment and the presumption of innocence when it confirmed the Commission's finding that the infringement period for the appellant started on 1 April 2000.

Third plea-in-law. The General Court breached its duty to state sufficient reasons in relation to its assessment of the appellant's plea of unequal treatment, erroneously concluding that the appellant had accepted such distinction during the administrative proceeding, and rendering such acceptance as a material consideration in its assessment.

(1) Commission Decision of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (notified under document C(2014) 2139 final) (OJ 2014, C 319, p. 10).
Request for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 19 July 2018 — IN v Belgische Staat

(Case C-469/18)

(2018/C 427/07)

Language of the case: Dutch

Referring court

Hof van Cassatie

Parties to the main proceedings

Applicant: IN

Defendant: Belgische Staat

Question referred

Should Article 47 of the Charter of Fundamental Human Rights of the European Union, in cases of value added tax, be interpreted as precluding in all circumstances the use of evidence obtained in violation of the right to respect for private life as guaranteed by Article 7 of the Charter, or does it leave room for a national regulation under which the court which has to decide whether such a piece of evidence can be used as the basis for a VAT assessment has to make an evaluation such as the one set out above under paragraph 4 of this judgment.
Request for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 31 August 2018 — Eurowings GmbH v JJ and KI

(Case C-557/18)

(2018/C 436/30)

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Defendant and appellant: Eurowings GmbH

Applicants and respondents: JJ, KI

Question referred

Is the total flight distance to be used as a basis for calculating the entitlement to compensation under Article 7 of Regulation (EC) No 261/2004 (1) also in the case where the arrival of a passenger at the final destination is delayed by three hours or more solely as a result of a delay/cancellation of the connecting flight, but the feeder flight was on time, the two flights were operated by different air carriers and the booking confirmation was issued by a tour operator which combined the flights for its customer?

(1) 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 (OJ 2004 L 46, p. 1).
Official Journal of the European Union

Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 30 May 2018 — SC Beny Alex SRL v Organizația Utilizatorilor de Apă pentru Irigații (OUAI) Săveni

(Case C-353/18)

(2018/C 436/19)

Language of the case: Romanian

Referring court

Consiliul Național de Soluționare a Contestațiilor

Parties to the main proceedings

Applicant-Objector: SC Beny Alex SRL

Contracting entity: Organizația Utilizatorilor de Apă pentru Irigații (OUAI) Săveni

By order of 17 October 2018, the Court (Eighth Chamber) declared the request for a preliminary ruling to be manifestly inadmissible.
Action brought on 23 October 2018 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-664/18)

(2018/C 445/16)

Language of the case: English

Parties

Applicant: European Commission (represented by: J. Norris-Usher, K. Petersen, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

— declare that: in continuing to exceed the annual limit values for NO2 in zones UK0001 (Greater London Urban Area); UK0002 (West Midlands Urban Area); UK0003 (Greater Manchester Urban Area); UK 0004 (West Yorkshire Urban Area); UK 0013 (Teesside Urban Area); UK0014 (The Potteries); UK0018 (Kingston upon Hull); UK0019 (Southampton Urban Area); UK0024 (Glasgow Urban Area); UK0029 (Eastern); UK0031 (South East); UK0032 (East Midlands); UK0033 (North West & Merseyside); UK0034 (Yorkshire & Humberside); UK0035 (West Midlands) and UK0036 (North East) as well as with the hourly limit values for NO2 in zone UK0001 (Greater London Urban Area) since the entry in to force on those limit values on 1 January 2010 the United Kingdom of Great Britain and Northern Ireland has failed to comply with Article 13 (1) of Directive 2008/50/EC (1) in conjunction with Annex XI of the Directive;

— declare that: since 11 June 2010, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 23 (1) of Directive 2008/50/EC in conjunction with Annex XV of the Directive with regard to the above-mentioned zones and in particular the obligation under subparagraph 2 of Article 23 (1) to keep the exceedance period as short as possible;

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

Pleas in law and main arguments

Since 2010, the annual limits for NO2 have been exceeded in 16 zones and agglomerations and the hourly limits have been exceeded in one zone. These exceedances amount in and of themselves to a violation of Article 13 (1) of Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe, read in conjunction with annex XI of the same Directive.

Despite this persistent violation of Article 13 (1) read in conjunction with annex XI, of the Directive, the United Kingdom of Great Britain and Northern Ireland has failed to adopt air quality plans which set out appropriate measures so that the exceedance period can be kept as short as possible. The insufficiency of the measures foreseen by the United Kingdom of Great Britain and Northern Ireland is evidenced by the duration of the period in which the limit values have been exceeded, the magnitude of the exceedances and the compliance trend, as well as a detailed analysis of each of the respective air quality plans pertaining to the 16 zones and agglomerations which are the object of the present application.

(1) Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008, L 152, p. 1).
1.

Is Article 3(1a), fourth subparagraph, (iii), of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, (1) as last amended by Directive 2013/50/EU of the European Parliament and of the Council, to be interpreted as meaning that it is a requirement for the permissibility of the imposition of ‘more stringent requirements’ on the ‘holder of shares, or a natural person or legal entity’, that the ‘laws, regulations or administrative provisions’ providing for more stringent requirements for holdings publicity are ‘supervised’ by an authority designated by the Member State pursuant to Article 4 of Directive 2004/25/EC (2) … concerning takeover bids and that such supervision encompasses compliance with the more stringent requirements regarding holdings publicity within the meaning of Directive 2004/109/EC?
3.

If the operating air carrier is required to take reasonable measures to avoid long delays themselves, is 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, to be interpreted as meaning that, in the case of the carriage of passengers on a route consisting of two (or more) flights, the air carrier must, in order to avoid an obligation to pay compensation in accordance with Article 7 of that regulation, merely take reasonable measures aimed at avoiding a delay to the flight which it is due to operate and which is subject to possible delay, or that it must also take reasonable measures to avoid a long delay for the individual passenger at the final destination (for example, by examining the possibility of rebooking the passenger onto another flight)?
Request for a preliminary ruling from the Cour d’appel d’Aix-En-Provence (France) lodged on 23 October 2018 — Criminal proceedings against B S and C A

(Case C-663/18)

(2019/C 4/25)

Language of the case: French

Referring court

Cour d’appel d’Aix-En-Provence

Parties to the main proceedings

B S and C A

Interveners: Ministère public, Conseil national de l’ordre des pharmaciens

Question referred

The Court of Justice of the European Union is requested to deliver a preliminary ruling on the interpretation of Articles 28, 29, 30 and 32 TFEU, of Regulations No 1307/2013 (1) and No 1308/2013 (2) and of the principle of the free movement of goods, referring to it the question whether those provisions must be interpreted as meaning that the derogating provisions introduced by the arrêté (Decree) of 22 August 1990, by limiting the cultivation, industrialisation and marketing of hemp solely to fibre and seeds, impose a restriction that is not in accordance with [EU] law.

(1) Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608).

(2) Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).
2.

Do those principles preclude legislation such as Article 23(1)(b) and (6) of the VAT Code, interpreted to the effect that a taxable person, who had opted for a coefficient method and/or allocation key in order to calculate the right to deduct tax paid on goods and services of mixed use and who had made the correction on the basis of the final amounts for the year to which the deduction related, pursuant to Article 23(6), may not retroactively alter those amounts by recalculating the initial deduction which has already been adjusted in accordance with that provision following a retroactive VAT assessment relating to an activity which it had initially regarded as being exempt?
Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy) lodged on 29 October 2018 — CO v Comune di Gesturi

(Case C-670/18)

(2019/C 25/28)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sardegna

Parties to the main proceedings

Applicant: CO

Defendant: Comune di Gesturi

Question referred

Does the principle of non-discrimination referred to in Articles 1 and 2 of Council Directive 2000/78/EC (1) of 27 November 2000 preclude the provision in Article 5(9) of Decree-Law No 95 of 6 July 2012 (converted, with amendments, by Law No 135 of 7 August 2012, in the version of the text amended by Article 6 of Decree-Law No 90 of 24 June 2014, converted by Law No 114 of 11 August 2014), prohibiting public administrative authorities from awarding analysis and consultancy roles to individuals who are already retired public or private employees?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
Request for a preliminary ruling from the Juzgado de Instrucción de Badalona (Spain) lodged on 22 October 2018 — Criminal proceedings against VW

(Case C-659/18)

(2019/C 35/11)

Language of the case: Spanish

Referring court

Juzgado de Instrucción de Badalona

Party to the main proceedings

VW

Question referred

Must Article 47 of the Charter of Fundamental Rights of the European Union and, in particular, Article 3(2) of Directive 2013/48/EU (1) be interpreted as meaning that the right of access to a lawyer may justifiably be delayed where the suspect or accused fails to appear when first summoned by the court and a national, European or international arrest warrant is issued, and that the assistance of a lawyer and the entering of an appearance by the lawyer in the proceedings may be delayed until the warrant is executed and the suspect is brought to court by the police?

(1) Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294 p. 1).
1.

Must the concept of a ‘different application’ within the meaning of the judgment of 19 July 2012, Neurim (C-130/11, EU:C:2012:489), be interpreted strictly, that is to say: — as limited only to the situation where an application for human use follows a veterinary application; — or as relating to an indication within a new therapeutic scope, in the sense of a new proprietary medical product, compared with the earlier marketing authorisation, or a medicinal product in which the active ingredient acts differently from how it acts in the medicinal product to which the first marketing authorisation related; — or more generally, in the light of the objectives of Regulation (EC) No 469/2009 (1) of establishing a balanced system taking into account all the interests at stake, including those of public health, must the concept of a ‘new therapeutic use’ be assessed according to stricter criteria than those for assessing the patentability of the invention; or must it on the other hand be interpreted broadly, that is to say, as including not only different therapeutic indications and diseases, but also different formulations, posologies and/or means of administration?
1.

Do the provisions of Council Directive 93/13/EEC on unfair terms in consumer contracts, (1) in particular the 12th, 21st and 23rd recitals and Articles 2(b), 6(1), 7(2) and 8 thereof, permit, in accordance with the principle of procedural autonomy and the principle of equivalence and effectiveness, a set of means of legal recourse that consists in an ordinary legal action, not subject to any limitation period, to establish the unfairness of certain terms in a consumer contract and an ordinary legal action of a personal and pecuniary nature that is subject to a limitation period, which is used in pursuit of the directive’s aim of eliminating the effects of all obligations arising and performed under clauses which are found to be unfair to consumers?
2.

In the event that judges are appointed to adjudicate within the organisational unit having jurisdiction under national law to hear and determine the action brought, on a proper construction of the third subparagraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union, is a newly-created chamber of a court of last instance of a Member State which has jurisdiction to hear the case of a national court judge at first or second instance and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts, namely the Krajowa Rada Sądownictwa (National Council of the Judiciary), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?
2.

In particular, can a finding that, despite the service procedures in force in the issuing State and the time limits laid down for appealing a decision as referred to in Article 1(a)(ii) and (iii) of Council Framework Decision 2005/214/JHA having been observed, the party residing in the State enforcing the decision did not have a real and effective opportunity to protect his rights at the pre-litigation stage of the proceedings due to not having been given sufficient time to respond to the notification of the imposition of the penalty in a proper manner constitute grounds for refusal?
Action brought on 16 November 2018 — European Commission v Federal Republic of Germany

(Case C-718/18)

(2019/C 54/09)

Language of the case: German

Parties

Applicant: European Commission (represented by: M. Noll-Ehlers and O. Beynet, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

1. declare that the Federal Republic of Germany has failed to fulfil its obligations under Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (1) and under Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (2) by transposing incorrectly: — Point 21 of Article 2 of Directive 2009/72/EC and point 20 of Article 2 of Directive 2009/73/EC; — Article 19(3), in combination with Article 19(8), of Directives 2009/72/EC and 2009/73/EC; — Article 19(5) of Directives 2009/72/EC and 2009/73/EC; and — Article 37(1)(a) and 37(6)(a) and (b) of Directive 2009/72/EC and Article 41(1)(a) and 41(6)(a) and (b) of Directive 2009/73/EC;

2. order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The application concerns the deficient transposition of Directives 2009/72 and 2009/73 in respect of the German internal markets in electricity and natural gas by the Energiewirtschaftgesetz (Law on the Energy Industry; ‘EnWG’). The Commission claims that the transposition by the EnWG is inadequate in four respects. First, the definition of a vertically integrated undertaking, which specifies which undertakings fall under those directives’ unbundling provisions, has been transposed only in part into German law. Second, the cooling-off provisions relating to role switching within a vertically integrated undertaking have not been transposed in full. Third, provisions prohibiting the holding of certain interests in or receipt of financial benefits from vertically integrated organisations have been transposed only in part. Finally, the allocation of responsibilities in the EnWG encroaches on the responsibilities reserved exclusively for national authorities, as provided for in the directives.

The Commission claims that this constitutes an infringement of point 21 of Article 2 of Directive 2009/72/EC and of point 20 of Article 2 of Directive 2009/73/EC, Article 19(3), in combination with Article 19(8), of Directives 2009/72/EC and 2009/73/EC, Article 19(5) of Directives 2009/72/EC and 2009/73/EC, Article 37(1)(a) and 37(6)(a) and (b) of Directive 2009/72/EC, and of Article 41(1)(a) and 41(6)(a) and (b) of Directive 2009/73/EC.

(1) OJ 2009 L 211, p. 55.

(2) OJ 2009 L 211, p. 94.
Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — Caisse pour l’avenir des enfants v FV, GW

(Case C-802/18)

(2019/C 82/15)

Language of the case: French

Referring court

Conseil supérieur de la Sécurité sociale

Parties to the main proceedings

Appellant: Caisse pour l’avenir des enfants

Respondents: FV, GW

Questions referred

1. Must Luxembourg family allowances awarded pursuant to Articles 269 and 270 of the Code de la sécurité sociale (Social Security Code) be treated as a social advantage within the meaning of Article 45 TFEU and Article 7(2) of Regulation 492/2011 on freedom of movement for workers within the Union? (1)

2. If they are so treated, the definition of member of the family applicable under Article 1(i) of Regulation 883/2004 (2) is at odds with the broader definition of family member in Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council (3) when the latter excludes, contrary to what is established by the Coordination Regulation, all autonomy of the Member State in defining a member of the family, and excludes any, subsidiary, concept of a person who is mainly dependent. Must the definition of member of the family under Article 1(i) of Regulation 883/2004 prevail given its specificity in the context of the coordination of social security systems and, above all, does the Member State retain competence to define members of the family who are entitled to family allowances?

3. If Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council is applicable to family benefits and more precisely to Luxembourg family allowances, can the exclusion of the child of a spouse from the definition of a member of the family be considered indirect discrimination that is justified in view of the domestic objective of the Member State of safeguarding the personal right of the child and the need to protect the authorities of the Member State of employment when extension of the personal field of application amounts to an unreasonable burden for the Luxembourg family benefits system, which, in particular, exports almost 48 % of its family benefits?

(1) Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).

(2) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

(3) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).
4.

In particular, and as far as public service television activities are concerned, assuming that those entities are capable of having a dual nature and also assuming that, together with the bodies governed by public law which are their majority shareholders, they are treated as single taxable persons, must only the portion of input VAT which can be considered to relate to their economic activity be treated as deductible?