ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 193/8

Appeal brought on 1 June 2009 by Alcoa Trasformazioni Srl against the judgment of the Court of First Instance (First Chamber) delivered on 25 March 2009 in Case T-332/06: Alcoa Trasformazioni Srl v Commission of the European Communities

(Case C-194/09 P)

2009/C 193/09

Language of the case: English

Parties

Appellant: Alcoa Trasformazioni Srl (represented by: Messrs M. Siragusa, T. Müller-Ibold, T. Graf, F. Salerno, attorneys-at-law)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claim that the Court should:

— Annul the judgment of the First Chamber of the Court of First Instance of 25 March 2009, in case T-332/06, Alcoa Trasformazioni Srl vs. Commission of the European Communities,

— Annul Commission Decision 2006/C 214/03 notifed to the Italian Republic on 19 July 2006, insofar as it concerns the electricity tariffs applicable to the aluminium plants owned by Alcoa Trasformazioni Srl.

Alternatively,

— Remand the case to the CFI for reconsideration in accordance with the Court's judgment.

And in either case,

— Order the Commission to pay the Appellant's legal fees and expenses in accordance with Article 69 of the Court's Rules of Procedure, including reimbursement of the sums paid to the Commission as expenses incurred in connection with the proceedings in first instance.

Pleas in law and main arguments

Given the Commission's past finding that the electricity tariffs applicable to energy intensive industries in Italy did not constitute a state aid, the question arises as to what standard of investigation and reasoning the Commission should apply in such circumstances before opening formal proceedings. Alcoa submits that in a situation where the Commission has previously found that a measure does not constitute aid, the Commission cannot open such proceedings unless it has first conducted a comprehensive preliminary investigation in order to substantiate why the previous finding no longer holds. In addition the Commission must set out its reasons sufficiently clearly in its decision to open formal proceedings. Alcoa submits that the CFI erred in law in holding that the Commission could open formal proceedings without examining whether the original analysis of the 1996 decision had become invalid. The Commission's past finding that the measure did not constitute aid also raises the question of what procedure should apply in the event that the Commission decides to revisit the matter and to open formal proceedings against the measure in question. It follows both from the applicable procedural rules and the fundamental principles of legal certainty as well as from the protection of legitimate expectations that in such circumstances the procedure for investigating existing aid must apply. It is submitted that the CFI erred in law in holding that the Commission's reliance on the procedure for new aid in investigating Alcoa's tariffs was correct.
EN Official Journal of the European Union C 220/20

Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 1 July 2009 — État Belge v Nathalie De Fruytier

(Case C-237/09)

2009/C 220/39

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: État Belge

Defendant: Nathalie De Fruytier

Question referred

Does the activity of transporting, in a self-employed capacity, human organs and samples for hospitals and laboratories constitute the supply of human organs, blood and milk, which is exempt from value added tax under Article 13(A)(1)(d) of 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? (1)

(1) OJ L 145, p. 1.
EN Official Journal of the European Union C 205/21

Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 15 June 2009 — Barsoum Chabo v Hauptzollamt Hamburg-Hafen

(Case C-213/09)

2009/C 205/37

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Barsoum Chabo

Defendant: Hauptzollamt Hamburg-Hafen

Question referred (1)

Is the additional amount arising under the third country and preferential customs rate of EUR 222 per 100 kg of net weight of goods charged on imports of preserved mushrooms of the Agaricus genus (CN heading 2003 10 30) void for infringement of the principle of proportionality?

(1) Concerning Commission Regulation (EC) No 1719/2005 of 27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2005 L 286, p. l).
—

Declare that, by failure to adopt the laws, regulations and administrative provisions necessary to implement Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (1) or by failing to notify the commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 220/19

Reference for a preliminary ruling from the Bundespatentgericht (Germany), lodged on 24 June 2009 — Rechtsanwaltssozietät Lovells v Bayer CropScience AG

(Case C-229/09)

2009/C 220/34

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Claimant: Rechtsanwaltssozietät Lovells

Defendant: Bayer CropScience AG

Question referred

For the purpose of the application of Article 3(1)(b) of Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products, (1) must account be taken exclusively of a marketing authorisation under Article 4 of Directive 91/414/EEC, (2) or can a certificate also be issued pursuant to a marketing authorisation which has been granted on the basis of Article 8(1) of Directive 91/414/EEC?

(1) OJ 1996 L 198, p. 30.

(2) OJ 1991 L 230, p. 1.
1.

After the provisions contained in Articles 2 and 3 [of Directive 89/105/EC] which modulate the relationship between the public authorities of a Member State and the pharmaceutical companies — by allowing the pricing of a medicinal product or the raising of its price to be determined on the basis of information provided by the [latter], but only in so far as is acceptable to the competent authority, and thus on the basis of dialogue between the undertakings themselves and the authorities competent to supervise pharmaceutical expenditure — Article 4(1) [of that Directive] concerning ‘price freeze[s] imposed on all medicinal products or on certain categories of medicinal products’ characterises a price freeze as a general instrument, the continuing use of which is conditional upon a review which must be carried out, at least once a year, with reference to the macro-economic conditions existing in the Member State in question. That provision allows the competent authorities a period of 90 days in which to take a final decision, requiring them, on expiry of that period, to announce what increases or decreases in prices are being made, if any. On a proper construction of the reference to ‘decreases in prices … being made, if any’, is that provision to be interpreted as meaning that, as well as the general remedy of freezing the prices of all categories, or certain specific categories, of medicinal product, another general remedy may be applied in the form of a reduction in the prices of all categories, and of certain specific categories, of medicinal product, or must ‘decreases …, if any’ be interpreted as referring exclusively to the medicinal products which are already subject to the price freeze?
EN Official Journal of the European Union C 233/3

Action brought on 24 June 2009 — Commission of the European Communities v Republic of Poland

(Case C-228/09)

2009/C 233/04

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and A. Stobiecka-Kuik, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by including the amount of the ‘opłata rejestracyjna’ (registration charge) within the taxable amount for VAT levied in Poland on the supply, intra-Community acquisition or import of a passenger car, the Republic of Poland has failed to fulfil its obligations under Articles 78, 79, 83 and 86 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The plea advanced in the present case concerns the Republic of Poland’s inclusion of the amount of the registration charge in the taxable amount for VAT when the supply, intra-Community acquisition and import of unregistered passenger cars take place in that Member State.

In the Commission’s view, there is a fundamental similarity between the Polish tax/charge at issue in the present case and the Danish tax/charge in Case C-98/05 De Danske Bilimportører. In that case, the Court held that the relevant tax/registration charge does not fall within the taxable amount for VAT.

The Commission takes the view that the operation of the Polish registration charge in the case of successive transactions concerning the same vehicle prior to its registration shows that it is in essence a registration tax/charge, and not a tax on sales as the Republic of Poland maintains. The taxable person can deduct the amount of the registration charge from the amount of tax chargeable. This means that ultimately, through the system of deduction of the tax paid previously, the tax/charge is levied only once.

The Commission does not concur with the Republic of Poland’s argument that the person liable for payment of the registration charge is the seller, the intra-Community acquirer or the importer of the vehicle and not the person in whose name the car is registered.

(1) OJ 2006 L 347, p. 1.
3.

Are the provisions of Article 12(5)(a)(i) to be understood to mean that the BTI dated 8 April 2005 relied upon by Pace plc automatically ceased to be valid after 31 December 2006 on the basis that it no longer conformed to the law laid down in Commission Regulation 1549/2006. In particular, is Article 12(5)(a)(i) to be interpreted in such a way that Commission Regulation 1549/2006 does not fall within the concept of a ‘regulation’ for the purposes of that Article either because it is an annual update to the CN or because it is not a specific classification regulation.
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/43/EC (1) of the European Parliament and of the Council of 17 May 2006 on statutory audits of annul accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC, or in any event failing to communicate such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Directive 2006/43/EC;
EN Official Journal of the European Union C 267/24

Appeal brought on 21 January 2009 by Daniela Marinova against the order of the Court of First Instance (Sixth Chamber) delivered on 05 November 2008 in Case T-213/08: Marinova/Université Libre de Bruxelles and Commission

(Case C-29/09 P)

2009/C 267/44

Language of the case: English

Parties

Appellant: Daniela Marinova (represented by: G. Georgiev, advocate)

Other parties to the proceedings: Université Libre de Bruxelles, Commission of the European Communities

By order of 1 July 2009 the Court of Justice (Eight Chamber) held that the appeal was inadmissible.
1.

Does Article 1(1)(c) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, (1) or other provisions of that directive, preclude a national rule under which damages claims for the contracting authority’s infringement of Community procurement law are subject to the requirement of fault, also where that rule is applied to the effect that in principle fault on the part of organs of the contracting authority is to be assumed and its reliance on the absence of individual abilities, and thus to a lack of personal fault, is excluded?
2.

Is the Commission Decision of 22 February 2000 refusing the placing on the market of “Stevia rebaudiana Bertoni: plants and dried leaves” as a novel food or novel food ingredient (2000/196/EC), (1) under Article 1 of which Stevia rebaudiana Bertoni: plants and dried leaves may not be placed on the Community market as a food or food ingredient, also binding on the claimant which at present places “Stevia rebaudiana Bertoni: plants and dried leaves” on the Community market?
EN Official Journal of the European Union C 282/25

Reference for a preliminary ruling from the Gerechtshof’s-Gravenhage (Netherlands) lodged on 28 August 2009 — State of the Netherlands v Denkavit Nederland b.v. and Others

(Case C-346/09)

2009/C 282/44

Language of the case: Dutch

Referring court

Gerechtshof’s-Gravenhage

Parties to the main proceedings

Applicant : State of the Netherlands Defendants : Denkavit Nederland b.v., Arie Blok b.v., Cehave b.v., Demeter b.v.

Question referred

Must Community law, and specifically Directive 90/425/EEC, (1) Decision 94/381/EC (2) and Decision 2000/766/EC, (3) be interpreted as meaning that any national prohibition, such as that laid down in Article 2 of the Tijdelijke regeling, which, with a view to affording protection against BSE, prohibits the production of and trading in processed animal proteins intended for feeding to farmed animals, is incompatible with those provisions if such a national prohibition

— entered into force on 15 December 2000 (and so before Decision 2000/766/EC) and

— also applied temporarily (until Decision 2001/9/EC (4) of 29 December 2000 entered into force) to fishmeal and dicalcium phosphate?

(1) Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra- Community trade in certain live animals and products with a view to the completion of the internal market (OJ L 224, p. 29).

(2) Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein (OJ L 172, p. 23).

(3) Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ L 306, p. 32).

(4) Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Council Decision 2000/766/EC concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2001 L 2, p. 32).
EN Official Journal of the European Union C 312/15

Reference for a preliminary ruling from the Tribunal de commerce de Bruxelles (Belgium) lodged on 23 September 2009 — Françoise Hanssens-Ensch (administrator in the bankruptcy proceedings relating to Agenor SA) v European Community

(Case C-377/09)

2009/C 312/23

Language of the case: French

Referring court

Tribunal de commerce de Bruxelles

Parties to the main proceedings

Applicant: Françoise Hanssens-Ensch (administrator in the bankruptcy proceedings relating to Agenor SA)

Defendant: European Community

Question referred

Is the second paragraph of Article 288 EC to be interpreted as meaning that a liability action under Article 530 of the Belgian Companies Code, brought by an administrator in bankruptcy proceedings seeking an order that the European Community should make good the bankrupt company’s liabilities, on the ground that the Community had the de facto power to manage a commercial company and was guilty of serious misconduct in the management of that company which contributed to its bankruptcy, constitutes an action in non-contractual liability for the purposes of that provision of the Treaty?
1.

Are TARIC codes 7312108219, 7312108419 and 7312108619 to be interpreted as meaning that, in 2004 and 2005, steel articles –ropes and cables not coated or only plated or coated with zinc– and, in particular, alloy steel not consigned from Moldova or Morocco, ought to have been classified under these codes, depending on their cross-sectional dimensions, irrespective of their chemical composition (excluding stainless steel)?
EN Official Journal of the European Union C 11/14

Appeal brought on 3 October 2009 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the order of the Court of First Instance (Fourth Chamber) delivered on 2 July 2009 in Case T-279/06: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Banque centrale européenne BCE

(Case C-401/09 P)

2010/C 11/25

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis and M. Dermitzakis, Δικηγόροι)

Other party to the proceedings: European Central Bank

Form of order sought

The applicant claims that the Court should:

— Set aside the decision of the Court of First Instance;

— Annul the decision of the European Central Bank to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

— Order ECB to pay the applicant's legal and other costs and expenses incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted.

Pleas in law and main arguments

The appellant submits that the defendant's objection of inadmissibility, submitted together with the defence, should have been declared inadmissible due to the fact that it does not comply with article 114 of the rules of procedure of the CFI which expressly provides that such an objection must be submitted ‘by a separate document’. The appellant also submits that, by accepting the objection of inadmissibility and failing to comment on the appellant's arguments with respect to the objection, the CFI infringed article 36 of the Statute of the Court of Justice.

In the appellant's view the CFI was wrong when it held that European Dynamics, because its bid was unacceptable, had no legal interest in seeking review of the decision of the contracting authority. The appellant also argues that the CFI erred by considering that it was necessary for the appellant to obtain an Arbeitnehmerüberlassungsgenehmigung (AÜG) in order to offer its services lawfully.

Finally the appellant submits that the CFI failed to apply the relevant legal provisions concerning the duty of the contracting authority to provide reasons for its decision.
2.

Can the presumption laid down in Article 3(1) of Regulation No 1346/2000, according to which ‘‘[i]n the case of a company. the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary’, be rebutted if it is established that the company carries on genuine business activity in a State other than that in which it has its registered office, or is it necessary, in order for the presumption to be deemed rebutted, to establish that the company has not carried on any business activity in the State in which it has its registered office?
EN Official Journal of the European Union C 24/23

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 2 November 2009 — Euro Tyre Holding B.V. v Staatssecretaris van Financiën

(Case C-430/09)

2010/C 24/42

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Euro Tyre Holding B.V.

Defendant: Staatssecretaris van Financiën

Question referred

In the light of Article 28c(A)(a) of the Sixth Directive, (1) and of Article 8(1)(a) and (b), the first subparagraph of Article 28a(1)(a), and the first subparagraph of Article 28b(A)(a) of the Sixth Directive, where, with regard to the same goods, two successive supplies are effected between taxable persons acting as such, in respect of which there is one single intra-Community dispatch or one single intra-Community transport, how should one determine to which supply the intra-Community transport should be ascribed, when the transport of the goods is effected by or at the expense of the person who acts both in the capacity of purchaser for the first supply and in the capacity of vendor in the second supply?

(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 1997 L 145, p. 1).
EN Official Journal of the European Union C 24/26

Reference for a preliminary ruling from the Tribunal de Grande Instance de Périgueux (France) lodged on 9 November 2009 — AG2R Prévoyance v Beaudout Père et Fils SARL

(Case C-437/09)

2010/C 24/48

Language of the case: French

Referring court

Tribunal de Grande Instance de Périgueux

Parties to the main proceedings

Applicant: AG2R Prévoyance

Defendant: Beaudout Père et Fils SARL

Question referred

Are a provision making affiliation to a supplementary healthcare scheme compulsory, as provided for under Article L 912-1 of the Social Security Code, and the addendum, made compulsory by the public authorities at the request of organisations representing employers and workers in a given sector, which provides for affiliation to a single body, designated to manage a supplementary healthcare scheme, without any possibility for undertakings in that sector to be granted a waiver of the affiliation obligation, in compliance with Articles 81 EC and 82 EC, or are they such as to place the designated body in a dominant position constituting an abuse?
1.

What is meant by ‘acquiesced’ in Article 9(1) of Council Directive 89/104/EEC (1) and in particular: (a) is ‘acquiesced’ a community law concept or is it open to the national court to apply national rules as to acquiescence (including delay or long established honest concurrent use) (b) if ‘acquiesced’ is a community law concept can the proprietor of a trade mark be held to have acquiesced in a long and well- established honest use of an identical mark by another when he has long known of that use but has been unable to prevent it? (c) in any case, is it necessary that the proprietor of a trade mark should have his trade mark registered before he can begin to ‘acquiesce’ in the use by another of (i) an identical or (ii) a confusingly similar mark?
3.

In the event that the reply to the second question is affirmative: must Article 25(2) EBEP be defined as a national provision transposing the directive, of the kind referred to in point 4 of the operative part of the judgment of the Court of Justice in Case C-268/06 (Impact), (2) or is the Spanish State required to give retroactive effect to remuneration arising from the three-yearly increments which it has recognised in accordance with the Directive?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/66/EC (1) of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC, or in any event by failing to communicate the measures concerned to the Commission, the Hellenic Republic has failed to fill its obligations under Article 26(1) of that directive;