ddrg/super_eurlex huggingface dataset:
3.

(a) If it is considered that the child's habitual residence is not in the latter Member State, on what conditions may an urgent measure (taking into care) nevertheless be taken in that Member State on the basis of Article 20(1) of the regulation? (b) Is a protective measure within the meaning of Article 20(1) of the regulation solely a measure which can be taken under national law, and are the provisions of national law concerning that measure binding when the article is applied? (c) Must the case, after the taking of the protective measure, be transferred of the court's own motion to the court of the Member State with jurisdiction?
To annul Commission Decision C(2004) 4221 final of 26 October 2004 (Case COMP/F-1/38.338 — PO/Needles), in so far as it affects the appellants,

In the alternative, to annul or reduce the fine imposed on the appellants by Article 2 of that decision,
EN Official Journal of the European Union C 37/19

Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Republic of Poland) lodged on 4 December 2007 — Uwe Rüffler v Dyrektor Izby Skarbowej we Wrocławiu — Ośrodek Zamiejscowy w Wałbrzychu

(Case C-544/07)

(2008/C 37/27)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny we Wrocławiu (Regional Administrative Court, Wrocław) (Poland)

Parties to the main proceedings

Applicant: Uwe Rüffler

Defendant: Dyrektor Izby Skarbowej we Wrocławiu — Ośrodek Zamiejscowy w Wałbrzychu (Director of the Wrocław Tax Division, Wałbrzych office)

Question referred

Must the provisions of the first paragraph of Article 12 EC and Article 39(1) and (2) EC be construed as precluding the national provision contained in Article 27b of the Law of 26 July 1991 on income tax payable by natural persons, which restricts the right to a reduction of income tax by the amount of compulsory health insurance contributions paid to contributions paid exclusively on the basis of provisions of national law, in the case where a resident pays in another Member State compulsory health insurance contributions deducted from income taxed in Poland?
2.

If the first question is answered in the negative: Is the applicant to be regarded as acting in bad faith if he applies for the trade mark in order to be able to prevent a competitor from continuing to use the sign, where, at the time he files his application, he knows or ought to know that by using an identical or similar sign for the same goods or services, or goods or services which are so similar as to be capable of being confused, the competitor has already acquired ‘valuable property rights’?
EN Official Journal of the European Union C 64/20

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 12 December 2007 — College van burgemeester en wethouders van Rotterdam v M.E.E. Rijkeboer

(Case C-553/07)

(2008/C 64/29)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: College van burgemeester en wethouders van Rotterdam

Respondent: M.E.E. Rijkeboer

Question referred

Is the restriction, provided for in the Netherlands Law on local-authority personal records, on the communication of data to one year prior to the relevant request compatible with Article 12(a) of Directive 95/46/EC (1) 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, whether or not read in conjunction with Article 6(1)(e) of that directive and the principle of proportionality?

(1) OJ 1995 L 281, p. 31.
3.

If the operator started to deal in the corresponding agricultural product less than one year before 1 May 2004, does the law of the European Union, in particular Article 4 of Commission Regulation (EC) No 1972/2003 and Article 6 of Commission Regulation (EC) No 60/2004, preclude that operator himself having to prove that the amount of the stock of the agricultural product in his possession on 1 May 2004 is equivalent to the amount of the stock of the agricultural product customarily produced, sold, otherwise transferred for payment or without payment or acquired by him? If the answer is in the affirmative, would the answer be different if, regardless of the operator's obligation to provide proof, the administrative body had an obligation to take into account, on the basis of the declaration of the agricultural product submitted by the operator, in assessing the operator's transitional stock and surplus stock, the growth of the operator's production, processing or sales volume and stock after 1 May 2004?
EN Official Journal of the European Union C 79/19

Appeal brought on 22 January 2008 by Enercon GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-71/06 Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-20/08 P)

(2008/C 79/33)

Language of the case: German

Parties

Appellant: Enercon GmbH (represented by: R. Böhm and U. Sander, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

— Set aside the judgment of the Fifth Chamber of the Court of First Instance of 15 November 2007 (Case T-71/06);

— uphold the forms of order sought at first instance;

— in the alternative, refer the case back to the Court of First Instance;

— order OHIM to pay the costs of both instances.

Grounds of appeal and main arguments

By its first ground of appeal the appellant claims that there has been an infringement of the duty to give reasons under Article 73 of the Community Trade Mark Regulation. Neither in the decision of the Board of Appeal nor in the judgment under appeal of the Court of First Instance were any findings set out or explanations given regarding the shapes which OHIM or the Court of First Instance recognised as being common on the market and in what ways the shape applied for would have to differ from common shapes on the market to be found to be distinctive. In the absence of such findings or explanations it is not conceivable how OHIM or the Court of First Instance could have come to the conclusion that the shape applied for was not distinctive.

By its second ground of appeal the appellant alleges that Article 7(1)(b) of the Community Trade Mark Regulation has been infringed by an assessment of distinctiveness which, in the absence of a statement of the factual basis for its decision, could only have come about as a result of a distortion by the Court of First Instance of the facts presented to it, a matter open to review by the Court of Justice. Contrary to the view of the Court of First Instance in the judgment under appeal, the appellant claims that the shape applied for is distinctive since it is significantly different from the normal shapes found on the market and is not merely a variant of such shapes. Among the relevant public the shape applied for can be recognised and indeed is recognisable as an indication of origin irrespective of its use and without further enquiries or thought.
EN Official Journal of the European Union C 92/13

Reference for a preliminary ruling from the Administratīvā apgabaltiesa (Republic of Latvia) lodged on 15 January 2008 — SIA Schenker v Valsts ieņēmumu dienests

(Case C-16/08)

(2008/C 92/22)

Language of the case: Latvian

Referring court

Administratīvā apgabaltiesa

Parties to the main proceedings

Applicant: SIA Schenker

Defendant: Valsts ieņēmumu dienests

Question referred

Must heading 8528 21 90 of the Combined Nomenclature be interpreted as meaning that, as at 29 December 2004, it was also applicable to active matrix liquid crystal devices (TFT LCD — LTA320W2-L01, LTA260W1-L02, LTM170W1-L01) principally made up of the following elements:

(1) two glass plates;

(2) a layer of liquid crystal inserted between the two plates;

(3) vertical and horizontal signal drivers;

(4) backlight;

(5) inverter providing high voltage power for backlight;
In the event that the first question is answered in the affirmative:

Is Article 11 of Regulation No 320/2006 compatible with primary law, in particular with the principle of non-discrimination and the principle of the protection of legitimate expectations derived from Article 34 EC?
1.

Do the provisions of Article 73d(1)(a) and (3) of the EC Treaty (now Article 58(1)(a) and (3) EC) allow the crediting of Spanish inheritance tax against German inheritance tax to be precluded under Paragraph 21(1) and (2)(1) of the Erbschaftsteuer- und Schenkungsteuergesetz (Law on inheritance and gift tax) in conjunction with Paragraph 121 of the Bewertungsgesetz (Valuation Law) (category restriction) even in the case of deaths which occurred in 1999?
(2)

If the answer to Question 1 is alternative (b), is the table in Article 1(5) of Council Regulation (EC) No 85/2006 (2) of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway void as contrary to the principle of proportionality laid down in Article 5 of the EC Treaty in so far as, according to that table, the minimum import price established for frozen salmon backbones is higher than the minimum import price for whole fish and gutted head-on fish?
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/61/EC (1) of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards traceability requirements and notification of serious adverse reactions and events, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 107/20

Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 21 February 2008 — The Queen on the application of Christopher Mellor v Secretary of State for Communities and Local Government

(Case C-75/08)

(2008/C 107/31)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Christopher Mellor

Defendant: Secretary of State for Communities and Local Government

Questions referred

1. Whether under Article 4 of Council Directive 85/337/EEC (1) as amended by directives 97/11/EC (2) and 2003/35/EC (3) (‘the Directive’) Member States must make available to the public reasons for a determination that in respect of an Annex II project there is no requirement to subject the project to assessment in accordance with Articles 5 to 10 of the Directive?

2. If the answer to Question 1 is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State?

3. If the answer to Question 2 is in the negative, what is the extent of the requirement to give reasons in this context?

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ L 175, p. 40).

(2) OJ L 73, p. 5.

(3) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ L 156, p. 17).
EN Official Journal of the European Union C 128/23

Action brought on 6 March 2008 — Commission of the European Communities v Hellenic Republic

(Case C-106/08)

(2008/C 128/41)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos and N. Yerrell)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

— declare that, by failing to take all the measures necessary to ensure that vehicles put into service for the first time from 1 May 2006 must be fitted with recording equipment in accordance with the requirements of Annex IB to Regulation (EEC) No 3821/85 and to issue the corresponding driver cards, the Hellenic Republic has failed to fulfil its obligations under Article 2(1)(a) and (2) of Council Regulation (EC) No 2135/98, as amended by Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006;

— order Hellenic Republic to pay the costs.

Pleas in law and main arguments

Article 2(2) of the Regulation states that ‘Member States shall take the necessary measures to ensure that they are able to issue driver cards at the latest on the 20th day following the day of publication of Regulation (EC) No 561/2006’.

Regulation No 561/2006 was published in the Official Journal of the European Union on 11 April 2006 and it follows that the mandatory requirement of installation of a digital tachograph in all vehicles put into circulation in the European Union for the first time became applicable on 1 May 2006.

The Hellenic Republic responded to the Commission's reasoned opinion on 30 May 2007 and explained to the Commission that, taking into account every possible delay completing the procedure, issue of the digital tachograph cards to drivers would be possible by the end of 2007.

The Hellenic Republic responded to the Commission's reasoned opinion on 30 May 2007 and explained to the Commission that, taking into account every possible delay in completing the procedure, issue of the digital tachograph cards to drivers would be possible by the end of 2007.

The Commission asks the Court to order the Hellenic Republic to pay the costs.
by inserting into Articles 2(1) and 3 of Law No 3037/2002 the prohibition, subject to the criminal and administrative penalties set out in Articles 4 and 5 of the same law, on the installation and operation of all electrical, electromechanical and electronic games, including all computer games, on all public or private premises apart from casinos, the Hellenic Republic had failed to fulfil its obligations under Articles 28 EC, 43 EC and 49 EC and Article 8 of Directive 98/34/CE of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998.
2.

This problem results from Article 2(8) of Presidential Decree No 61/99 (FEK (Official Gazette) A 63) of 6 April 1999, which concerns discontinuance of the procedure for consideration of asylum. That provision treats arbitrary departure of the applicant for asylum without his giving notice as a withdrawal and the procedure for examination of the application is discontinued by a decision of the Secretary General of the Ministry of Public Order that is notified to the person concerned as a person whose whereabouts are unknown. That decision can be set aside only if the applicant presents himself to the competent authorities again no later than three months from notification of the decision, and provided that he adduces evidence showing that his absence was due to force majeure.
1.

Is Article 3(1)(b) [of Regulation No 2201/2003] (1) to be interpreted as meaning that, in a situation where the spouses hold both the nationality of the State of the court seised and the nationality of another Member State of the European Union, the nationality of the State of the court seised must prevail?
2.

Can the combined provisions of Article 13 of Regulation (EC) No 384/96, in respect of evasion of anti-dumping rules, of Article 114 et seq. of the Community Customs Code (Regulation (EEC) No 2913/92), in respect of inward processing, and of Articles 202, 204, 212 and 240 thereof, in respect of the incurrence of the customs debt, be interpreted as meaning that the subjection of goods to anti-dumping duty is not precluded by the prearranged acquisition of the same product from an entity with the nationality of a country not subject to anti-dumping duty, which has, in its turn, acquired that product in a country subject to such duty and has, without altering it in any way, imported it temporarily into the Community under the inward processing procedure, in order to re-import it processed, but temporarily and for only a few hours, and re-sell it immediately to the same Community company which had undertaken the inward processing?
—

Declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (1) or, in any event, by not having informed the Commission of those provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 17 of that directive;
(b)

If the latter is the case, can then the place where that harm arose be treated as ‘the place where the harmful event occurred’ within the meaning of Article 5(3) of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters only if that harm consists of physical harm to persons or goods, or is this also possible if (initially) only financial harm has been incurred?
EN Official Journal of the European Union C 183/7

Action brought on 7 February 2008 — Sandra Raulin v French Republic

(Case C-49/08)

(2008/C 183/13)

Language of the case: French

Parties

Applicant: Sandra Raulin (represented by: C. Vaucois, avocat)

Defendant: French Republic

By order of 16 May 2008 the Court (Fifth Chamber) declared that it clearly had no jurisdiction to give a ruling on the action and ordered Mrs Raulin to pay her own costs.
1.

1. Does Article 11(1), (2) and (3) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (1) (OJ 1992 L 348, p. 1) have direct effect? 2. If those provisions do have direct effect are they to be construed as meaning that there is a continued entitlement to payment of an allowance for on-call duty during periods in which expectant mothers are prohibited from working and/or during maternity leave? 3. Does this apply, in any event, where a Member State decides on a system of continuation of ‘pay’ which in principle encompasses total income, with the exception, however, of so-called ‘extra emoluments’ based on tasks performed (contingent on performance of those tasks) (as listed in Paragraph 15 of the [Austrian] Law on salaries (Gehaltsgesetz, ‘GehG’) 1956), such as the allowance for on-call duty at issue here?
EN Official Journal of the European Union C 183/10

Reference for a preliminary ruling from the Niedersächsischen Finanzgericht (Germany) lodged on 16 April 2008 — Monika Vollkommer v Finanzamt Hannover-Land I

(Case C-156/08)

(2008/C 183/18)

Language of the case: German

Referring court

Niedersächsischen Finanzgericht

Parties to the main proceedings

Applicant: Monika Vollkommer

Defendant: Finanzamt Hannover-Land I

Question referred

Is the imposition of German real property transfer tax on future building work as a result of its inclusion in the taxable amount for real property transfer tax on the purchase of a plot of land not yet built on (so-called single supply consisting of building work and purchase of land) contrary to the prohibition on multiple taxation in Article 401 of the Directive on the common system of value added tax (1) (formerly Article 33(1) of the Sixth Directive) (2) where the building work subject to real property transfer tax is also subject to German turnover tax as an independent supply?

(1) OJ L 347, p. 1.

(2) OJ L 145, p. 1.
2.

In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under the directive or [Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark] (2), may the provider of the paid referencing service be regarded as providing an information society service consisting of the storage of information provided by the recipient of the service, within the meaning of Article 14 of Directive 2000/31 of 8 June 2000 (3), so that that provider cannot incur liability before it has been informed by the trade mark proprietor of the unlawful use of the sign by the advertiser?
EN Official Journal of the European Union C 197/9

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Sicilia (Italy) lodged on 14 May 2008 — Acoset SpA v Conferenza Sindaci e Presidenza Prov.Reg.ATO Idrico Ragusa and Others

(Case C-196/08)

(2008/C 197/14)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale della Sicilia

Parties to the main proceedings

Applicant: Acoset SpA

Defendants: Conferenza Sindaci e Presidenza Prov.Reg.ATO Idrico Ragusa and Others

Question referred

Is the model of a semi-public company formed specifically to provide a particular public service of industrial importance and possessing a single corporate purpose, to which that service is awarded directly, the private ‘industrial’ and ‘operational’ participant in the company being selected by means of a public and open procedure, after verification of the financial and technical requirements and of the operating and managerial requirements specific to the service to be performed and the specific services to be provided, consistent with Community law and in particular with the obligations of transparency and free competition referred to in Articles 43, 49 and 86 of the Treaty?
EN Official Journal of the European Union C 209/20

Appeal brought on 29 April 2008 by the Commission of the European Communities against the judgment delivered on 14 February 2008 in Case T-351/05, Provincia di Imperia v Commission of the European Communities

(Case C-183/08 P)

(2008/C 209/28)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: D. Martin and L. Flynn, Agents)

Other party to the proceedings: Provincia di Imperia

Form of order sought

— annul the judgment of the Court of First Instance of 14 February 2008 in Case T-351/05;

— declare that the action brought by the Provincia di Imperia in that case was inadmissible;

— order the Provincia di Imperia to pay the Commission's costs in the present case.

Pleas in law and main arguments

By its appeal, the Commission complains that the judgment under appeal failed to apply the conditions governing the admissibility of an action for annulment brought under Article 230 EC, in particular by considering that the applicant at first instance had an interest in bringing an action. An action for annulment brought by a natural or legal person is only admissible in so far as the outcome of the action is likely to produce a benefit for the applicant. In the present case, the action brought by the applicant is manifestly inadmissible since a judgment annulling the contested act would, in itself, in no way produce a ‘benefit’ for that applicant. The granting of a subsidy is effectively a concession agreed to by the Commission and a party responding to a call for proposals consequently has no right to such a subsidy.

Alternatively, the Commission submits that, even if the applicant at first instance did have an interest in bringing an action on the day it brought its action, that interest would in any event have disappeared by the time the judgment under appeal was delivered, since the entire budget set aside for the call for proposals had been used up and the programming had come to an end.