ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 209/11

Action brought on 13 April 2010 — European Commission v Republic of Poland

(Case C-185/10)

()

2010/C 209/16

Language of the case: Polish

Parties

Applicant: European Commission (represented by: M. Simerdova and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by adopting and maintaining in force Article 4 of the Usatawa ‘Prawo farmaceutyczne’ (Law on Medicinal Products) of 6 September 2001 as amended by the Law of 30 March 2007 (Dz. U. No 75, heading 492), in so far as that article allows medicinal products imported from abroad having the same active substances, the same dosage and the same form as medicinal products which have obtained marketing authorisation in Poland to be placed on the market in Poland without authorisation issued there if the price of the former medicinal products is competitive in relation to the price of the latter, the Republic of Poland has failed to fulfil its obligations under Article 6 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use; (1)

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The adoption and application by the Republic of Poland of Article 4(1) and (3a) of the Law on Medicinal Products make it possible for medicinal products to be marketed in Poland when they do not possess a marketing authorisation in Poland issued by the competent national authorities, a situation which is contrary to Article 6(1) of Directive 2001/83.

In the applicant’s submission, the Polish provision is not covered by Article 5(1) and Article 126a of Directive 2001/83, which provide for exceptions to the general requirement contained in Article 6(1) of that directive that medicinal products must have a national authorisation.

Above all, Article 4(3a) of the Law on Medicinal Products, according to which the condition for allowing imported medicinal products is their ‘competitive price’ compared with the price of medicinal products already allowed on the national market, is based exclusively on an economic criterion. A criterion of that kind cannot, however, justify an exception to Article 6(1) of Directive 2001/83. Furthermore, the Polish provision concerns medicinal products with the same active substance, form and dosage as medicinal products already permitted on the national market, and it is therefore not possible to consider them to be unavailable on the national market, a situation which might justify the need for targeted import on the basis of Article 5(1) of the directive.

(1) OJ 2001 L 311, p. 67.
1.

Are Articles 3, 5(2), 6 and 7 of Directive 2003/10/EC (1) to be interpreted as meaning that a company in which the workers’ daily noise exposure level is above 85 dbA (measured without taking account of the effect of hearing protectors) fulfils the obligations to take preventive measures laid down in that Directive in respect of physical working conditions by providing those workers with hearing protectors so that, with the level of attenuation provided by those protectors, the workers’ daily noise exposure level is reduced to less than 80 dbA?
1.

Do Article 15 of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1) and Article 17 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (2) — both transposed into national law by OG (Ordonanța Guvernului (Government legislative decree)) No 137/2000, as republished and amended — preclude national legislation or a judgment of the Curte Constituțională (Constitutional Court) prohibiting the national judicial authorities from awarding to claimants who have been discriminated against the compensation for material and/or non-material damage which is considered appropriate in cases in which the compensation for the damage caused by discrimination relates to salary rights provided for by law and granted to a socio-professional category other than that to which the claimants belong (see, to that effect, judgments of the Curte Constituțională No 1325 of 4 December 2008 and No 146 of 25 February 2010)?
EN Official Journal of the European Union C 246/20

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 7 June 2010 — Campsa Estaciones de Servicio S.A. v Administración del Estado

(Case C-285/10)

()

2010/C 246/33

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Campsa Estaciones de Servicio S.A.

Defendant: Administración del Estado

Question referred

Did the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 permit Member States to enact legislation whereby, for transactions between connected parties where the price was patently lower than the open market value, the taxable amount was other than that determined by Article 11A.(1)(a) to be generally applicable — namely, the consideration — by extending the scope of the rules on application of goods and services for private use (as was done by Article 79(5) of the Law on VAT, before its amendment by Law 36/2006 of 29 November), when the specific procedure provided for in Article 27 of the Sixth Directive to obtain authorisation for derogation from the general rule was not followed, such derogation being obtained by Spain only after the Council Decision of 15 May 2006?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization 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).
In the event that the reply to the first question is in the affirmative:

Does Article 11 of Regulation (EC) No 320/2006 in that case infringe the principle that the Community can act only within the powers conferred on it, because Article 11 could, by means of the temporary restructuring amount, introduce a general tax which is not limited to financing expenditure benefiting the persons called upon to pay the tax?
1.

Do national regulations such as Articles 8 to 13 of the Royal Decree of 2 June 2008 concerning the minimum safety requirements for certain old electrical installations at places of work, which lay down requirements relating to the carrying out of electrical installations, the design of electrical equipment and forms of protection attached to that equipment in order to ensure the safety of workers, constitute technical regulations within the meaning Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (1) and of rules on Information Society services, the drafts of which must be notified in accordance with the first subparagraph of Article 8(1) of the same directive?
(a)

The General Court erred in applying a limited standard of judicial review. The Court did not consider the basic question of whether the fine imposed on Halcor was appropriate, fair and proportionate in relation to the gravity and duration of the unlawful conduct;
—

declare that, by failing to adopt 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 Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 301/10

Reference for a preliminary ruling from the Conseil d’État (France) lodged on 19 August 2010 — Société Veleclair v Ministre du budget, des comptes publics et de la réforme de l’État

(Case C-414/10)

()

2010/C 301/13

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Société Veleclair

Defendant: Ministre du budget, des comptes publics et de la réforme de l’État

Question referred

Does Article 17(2)(b) of the Sixth Directive (1) permit a Member State to make the right to deduct value added tax on importation conditional, regard being had in particular to the risk of tax evasion, upon the actual payment of that tax by the taxable person, where the taxable person for the purposes of value added tax on importation and the holder of the corresponding right to deduction are, as in France, the same person?

(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).
2.

If the answer to Question 1 is in the negative, does the exclusion of the assets of a capital company from the amount on which capital duty is charged, as laid down in the first indent of Article 5(3) of Directive 69/335/EEC, concern only the assets of a capital company which has had an increase in capital?
1.

Must the country in which the place of business is situated through which an employee was engaged, within the meaning of Article 6(2)(b) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, (1) be taken to mean the country in which the place of business of the employer is situated through which, according to the contract of employment, the employee was engaged, or the country in which the place of business of the employer is situated with which the employee is connected for his actual employment, even though that employee does not habitually carry out his work in any one country?
EN Official Journal of the European Union C 301/8

Action brought on 4 August 2010 — European Commission v Kingdom of Belgium

(Case C-397/10)

()

2010/C 301/10

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and I.V. Rogalski, Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that, by imposing the following requirements in respect of the activities of temporary work agencies — the business of providing labour must be the undertaking’s sole object (in the territory of the Brussels-Capital region), the agency must take a specific legal form (in the territory of the Brussels-Capital region) and must hold minimum share capital of EUR 30 987 (in the Flemish Region) — the Kingdom of Belgium failed to comply with its obligations under Article 56 TFEU;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

In support of its action, the Commission puts forward three complaints alleging infringement of Article 56 of the Treaty on the Functioning of the European Union.

In its first complaint, the applicant claims that the requirement that the business of providing labour must be the undertaking’s sole object constitutes a significant barrier for undertakings established in other Member States which are authorised to engage in businesses of a different nature there. That measure obliges such undertakings to amend their statutes in order to provide services, even on a temporary basis, in the Brussels-Capital region.

In its second complaint, the Commission states that the requirement that an undertaking established in another Member State must possess a specific legal form or legal status constitutes a significant restriction on the freedom to provide services. The objective of protecting workers, relied upon by the defendant by way of justification, could be attained by less restrictive measures, such as a requirement that an undertaking must show that it has appropriate insurance.

In its third complaint, the applicant criticises the requirement imposed by the Flemish Region that an undertaking must hold minimum share capital of EUR 30 987, since such a requirement means that some undertakings established in other Member States might have to alter their share capital in order to provide services, even on a temporary basis, in Belgium. Less restrictive measures, such as depositing a guarantee or taking out insurance, would allow the defendant to attain its objective of protecting workers.
2.

if Question 1 is answered in the affirmative: that they preclude a Member State (‘the host State’) from refusing to recognise, within its territory, a driving licence issued by another Member State (‘the issuing State’) in the case where the acquisition of the driving licence in the issuing State was preceded by a refusal to grant a driving licence in the host State on the ground that the physical and mental requirements for the safe driving of a motor vehicle had not been met and, on the basis of information given on the driving licence, other indisputable information from the host State, or on the basis of other indisputable facts, in particular any information provided by the holder of the driver licence himself or other indisputable facts known to the host State, it is established that there has been a breach of the rule on residence under Article 7(1)(b) of Directive 91/439/EEC and Article 7(1)(e) of Directive 2006/126/EC — inasmuch as other indisputable facts, in particular any information provided by the holder of the driving licence himself or other indisputable facts known to the host State are not sufficient: that information, within the meaning of the case-law of the Court of Justice, is provided by the issuing State even in the case where that information has not been directly conveyed, but rather has been conveyed only indirectly in the form of a notification based on such information from a third party, in particular the host State’s embassy in the issuing State —;
1.

Is Article 6(4) of Directive 88/361/EEC (1) of 24 June 1988 for the implementation of Article 67 of the Treaty, according to which existing national legislation regulating purchases of secondary residences may be upheld, still applicable to the purchase of secondary residences situated in a Member State of the EU by a national of the Principality of Liechtenstein, which forms part of the EEA?
—

Declare that, by maintaining a requirement of registration and accreditation by the Portuguese authorities for any temporary provision of services by Community patent agents who are already established in another Member State and by checking the professional qualifications of Community patent agents who travel to Portugal, even in relation to a temporary service, the Portuguese Republic has failed to fulfil its obligations under Article 56 TFEU and Articles 5 to 7 of Directive 2005/36/EC (1) on the recognition of professional qualifications.
EN Official Journal of the European Union C 346/25

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

(Case C-330/10)

()

2010/C 346/41

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza

Parties to the main proceedings

Applicant: Edison Trading 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
1.

Where the judgment to be enforced issued in the Member State of origin contains a serious infringement of fundamental rights, does the court of the Member State of enforcement exceptionally itself enjoy a power to examine the matter, pursuant to an interpretation of Article 42 of the Brussels IIa Regulation (1) in conformity with the Charter on Fundamental Rights?
3.

Is the application of the fine of LIT 390 250 000 (now EUR 201 547,30 — two hundred and one thousand five hundred and forty seven point 30 euros) for failure to deliver for compulsory distillation — in respect of the 1993/94 wine year — 7 084,87 hl of table wine, that volume having been calculated by applying the compulsory distillation quota to the lees produced (15 155 hl) (the yield being 126 hl/ha and the compulsory distillation quota being 51.5 %, in accordance with Regulation (EEC) No 610/94) (3) disproportionate in effect to the offences and in breach of the principle of fair punishment, which has been set out many times by the Court of Justice?
EN Official Journal of the European Union C 346/25

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza (Italy) lodged on 5 July 2010 — ENI SpA v Autorità Per l’Energia Elettrica e il Gas e Cassa Conguaglio Per il Settore Elettrico

(Case C-329/10)

()

2010/C 346/40

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza

Parties to the main proceedings

Applicant: ENI SpA

Defendant: Autorità Per l’Energia Elettrica e il Gas e Cassa Conguaglio Per il Settore Elettrico

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
—

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply fully with Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, (1) and in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 94(1) of that directive;
EN Official Journal of the European Union C 30/18

Appeal brought on 8 November 2010 by Grúas Abril Asistencia S.L. against the order of the General Court (Second Chamber) delivered on 24 August 2010 in Case T-386/09 Grúas Abril Asistencia S.L. v European Commission

(Case C-521/10 P)

()

2011/C 30/30

Language of the case: Spanish

Parties

Appellant: Grúas Abril Asistencia, S.L. (represented by: R. García García, abogado)

Other party: European Commission

Form of order sought

Accept the arguments put forward and set aside, on completion of the necessary legal formalities, the abovementioned order of inadmissibility, declaring the action for annulment admissible, as the appellant has standing to bring it, and giving final judgment in accordance with the appellant’s claims.

Pleas in law and main arguments

The appeal is brought against the order of the General Court which held inadmissible the application for annulment of the European Commission’s decision not to bring any proceedings with a view to remedying the infringements complained of. The General Court reasoned that such a refusal to act was not amenable to challenge by an individual.

The appellant submits that individuals have standing to bring actions for annulment, as provided for in Article 230 EC and Article III-365 of the Treaty establishing a Constitution for Europe and in the case-law, where they are addressees of the decision which is challenged and where the decision is of direct and individual concern to them. The appellant requests that the order holding inadmissible its application for annulment be set aside and that consequently that application be allowed.
1.

Does the Court adhere in principle to its case-law in Seagon v Deko (Case C-339/07 [2009] ECR I-00767) to the effect that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction under Article 3(1) of Council Regulation No 1346/2000 of 29 May 2000 on insolvency proceedings (1) to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose registered office is in another Member State even where, in addition to a claim arising from the right to seek to have a transaction set aside by virtue of insolvency, the claims pursued are primarily claims arising from rules on the maintenance of capital laid down in national company law which, from an economic point of view, are directed at the same assets as, or assets additional to, those pursued by the claim arising from the right to seek to have a transaction set aside by virtue of insolvency and which are independent of the opening of insolvency proceedings?
EN Official Journal of the European Union C 55/19

Action brought on 9 December 2010 — European Commission v Kingdom of the Netherlands

(Case C-576/10)

2011/C 55/34

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: M. van Beek and C. Zadra, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— rule that, by failing to comply with the law of the European Union on public contracts, in particular Directive 2004/18/EC, (1) in the context of the award of a public works concession by the municipality of Eindhoven, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 2 and Title III of Directive 2004/18/EC;

— order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission has concluded that the coooperation agreement which the municipality of Eindhoven entered into on 11 June 2007 with the company Hurks Bouw en Vastgoed B.V. is a public works concession within the terms of Article 1(3) of Directive 2004/18/EC.

In view of the fact that the public works concession has an estimated value which is greater than the applicable threshold value, it ought to have been the subject of a call for tenders in accordance with Directive 2004/18/EC, in particular Article 2 and Title III thereof. In addition, the public contracts awarded by Hurks Bouw en Vastgoed B.V. for works to an estimated value in excess of the applicable threshold value must be publicised in accordance with Articles 63 to 65 of Directive 2004/18/EC.

The fact that the municipality of Eindhoven did not apply Directive 2004/18/EC, and in particular Article 2 and Title III thereof, when awarding the public works concession in question to Hurks Bouw en Vastgoed B.V. leads the Commission to the conclusion that there has been a breach of that directive.

The Commission further concludes that, in the context of the award of a public works concession by the municipality of Eindhoven, the Kingdom of the Netherlands has failed to comply with its obligations under the European Union law on public contracts, and in particular those imposed by Article 2 and Title III of Directive 2004/18/EC.

(1) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).