ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 153/28

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 8 May 2009 — Ioannis Katsivardas — Nikolaos Tsitsikas O.E. v Ipourgos Ikonomikon

(Case C-160/09)

2009/C 153/53

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Ioannis Katsivardas — Nikolaos Tsitsikas O.E.

Defendant: Ipourgos Ikonomikon

Question referred

Can an individual (an importer of bananas from Ecuador) who claims the refund of domestic excise duty as having been wrongly paid plead before the national court that the national tax rule (Article 7 of Law 1798/1988, as amended by Article 10 of Law 1914/1990) is incompatible with Article 4 of the 1984 agreement between the European Economic Community and the member countries of the Cartagena Agreement, which was approved by Council Regulation (ΕEC) No 1591/84? (1)

(1) OJ L 153, 8.6.1984, p. 1.
(1)

On the basis of Community law, in particular, the Act of Accession (OJ 2003 L 236) and Articles 10 and 249 EC, does Directive 2002/22/EC (1) of the European Parliament and the Council (‘the Universal Service Directive’), and in particular Article 13(2) thereof and Annex IV thereto, apply to the mechanisms for support and cost-sharing which Hungary, as a Member State, established for universal services provided in 2003, that is to say, before its accession on 1 May 2004, but in respect of which the obligation to finance, grant and pay support is based on decisions adopted in administrative procedures commenced and completed after the accession of Hungary to the European Union?
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Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/113/EC (1) of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, or in any event, by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;
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a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC (1) of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (2) or, in any event, by failing to notify those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;
1.

(a) Is the second sentence of Article 2(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (1) to be interpreted as meaning that only bodies and institutions for whom it is, under the law of the Member State, to take the final (binding) decision in the legislative process act in a legislative capacity, or do bodies and institutions which have been given certain functions and rights of involvement in the legislative process by the law of the Member State, in particular to table a draft law and to give opinions on draft laws, also act in a legislative capacity? (b) May the Member States always provide that the definition of ‘public authority’ does not cover bodies and institutions, in so far as they act in a judicial or legislative capacity, only if at the same time the constitutional provisions of those Member States did not provide, at the date of the adoption of the directive, for a review procedure within the meaning of Article 6 of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC? (c) Are bodies and institutions, in so far as they act in a legislative capacity, excluded from the definition of ‘public authority’ only for the period until the conclusion of the legislative process?
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC (1) of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, (2) or in any event by not communicating such measures to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 15 of that directive;
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2007/16/EC (1) of 19 March 2007 implementing Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) as regards the clarification of certain definitions, or in any event by failing to communicate those measures to the Commission, the Portuguese Republic has failed to fulfil its obligations under Directive 2007/16/EC;
1.

Do the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC (1) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes, in conjunction with Articles 2, 10(1) and (2) and 17(1) and (2) of Sixth Council Directive 77/388/EEC (2) 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, rule out the possibility of introducing temporary forfeiture of the right to reduce the amount of tax due by an amount equivalent to 30 % of the input tax on the acquisition of goods and services in relation to taxable persons who effect sales to natural persons not engaged in commercial activities, and to persons engaged in commercial activities in the form of individual agricultural holdings, and who fail to fulfil the obligation to keep records of turnover and amounts of tax due by using cash registers, pursuant to Article 111(2) of the Ustawa o Podatku od Towarów i Usług (Law on the tax on goods and services) of 11 March 2004 (Dziennik Ustaw No 54, item 535, as subsequently amended), in conjunction with Article 111(1) thereof?
EN Official Journal of the European Union C 205/29

Appeal brought on 9 July 2009 by Calvin Klein Trademark Trust against the judgment of the Court of First Instance (Sixth Chamber) delivered on 7 May 2009 in Case T-185/07 Calvin Klein Trademark Trust v OHIM and Zafra Marroquineros, S.L.

(Case C-254/09 P)

2009/C 205/50

Language of the case: Spanish

Parties

Appellant: Calvin Klein Trademark Trust (represented by: T. Andrade Boué, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Zafra Marroquineros, S.L.

Form of order sought

— Set aside the judgment of the Court of First Instance (Sixth Chamber) of 7 May 2009 in Case T-185/07;

— Order OHIM and Zafra Marroquineros, S.L. to pay the costs.

Pleas in law and main arguments

The judgment runs counter to the case-law on the interpretation of Article 8(1) of Regulation No 40/94 (1) on the Community trade mark concerning the need to take into account all the factors characterising a specific case: the Court of First Instance failed to give appropriate legal weight to the fact that the party applying for the Community trade mark has used that mark to copy the cK marks which have reputation, and through its own acts, it makes it clear, in no uncertain terms, that the letters CK constitute the most distinctive part of the Community trade mark in question.

Infringement of Article 8(5) of Regulation No 40/94 as the Court of First Instance failed to assess the reputation of the opposing marks in the context of that article.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
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declare that, by failing to adopt all 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 annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EC and repealing Council Directive 84/253/EEC or, in any event, by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;
EN Official Journal of the European Union C 244/3

Reference for a preliminary ruling from the Anotato Dikastirio (Cyprus) lodged on 5 August 2009 — Giorgos Michalias v Christina A. Ioannou-Michalia

(Case C-312/09)

2009/C 244/04

Language of the case: Greek

Referring court

Anotato Dikastirio

Parties to the main proceedings

Appellant: Giorgos Michalias

Respondent: Christina A. Ioannou-Michalia

Question referred

When Articles 2(1), 42 and 46 of Regulation (EC) No 1347/2000 are interpreted correctly and applied, do the courts of a Member State of the European Union (Cyprus) have jurisdiction in respect of:

(a) divorce proceedings begun by the husband in the courts of State X (Cyprus) in April 2003 after the regulation entered into force on 1 March 2001 but before State X (Cyprus) became a Member State on 1 May 2004 and

(b) divorce proceedings begun by the wife after 1 May 2004 in the courts of another Member State (the United Kingdom) which was a Member State throughout the relevant period,

if both spouses were permanently resident in State Y (the United Kingdom) throughout the relevant period

and both spouses were nationals of State X (Cyprus) throughout the relevant period?
EN Official Journal of the European Union C 233/5

Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany), lodged on 7 July 2009 — Alketa Xhymshiti v Bundesagentur für Arbeit — Familienkasse Lörrach

(Case C-247/09)

2009/C 233/08

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Claimant: Alketa Xhymshiti

Defendant: Bundesagentur für Arbeit — Familienkasse Lörrach

Questions referred

1. In cases in which a national of a non-member country is lawfully resident in a Member State of the European Union and works in the Swiss Confederation, does Regulation (EC) No 859/2003 (1) apply to him and his spouse, who is also a national of a non-member country, in their Member State of residence, with the result that the Member State of residence is obliged to apply Regulations (EEC) No 1408/71 (2) and (EEC) No 574/72 (3) to that employed person and his spouse?

2. If the answer to the first question is in the negative: in the circumstances set out in the first question, are Articles 2, 13 and 76 of Regulation (EEC) No 1408/71 and Article 10(1)(a) of Regulation (EEC) No 574/72 to be interpreted as meaning that a mother who is a national of a non-member country may be refused family benefits in her Member State of residence on the basis of the fact that she is a national of a non-member country, even though the child concerned is a Union citizen?

(1) Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ 2003 L 124, p. 1).

(2) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).

(3) Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159).
2.

Article 26 of the International Covenant on Civil and Political Rights of 16 December 1966 — which is merely the basis of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms — provides: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Must a French court thus, pursuant to Article 55 of the French Constitution of 4 October 1958, apply the provisions of Article 26 of the International Covenant on Civil and Political Rights of 16 December 1966 and disregard the discriminatory provisions of Article L.1235-7 of the Code du travail which derive from an ordinary law, No 2005-35 of 18 January 2005, subsequent to 4 February 1981, the date on which the International Covenant entered into force in national territory?
2.

Does Article 12(5)(a) of Council Regulation (EEC) No 2913 (2) of 12 October 1992 establishing the Community Customs Code, as amended, oblige a national customs authority to issue binding tariff informations that accord with the explanatory notes to the CN, unless and until those explanatory notes have been declared to be in conflict with the wording of the relevant provisions of the CN, including the General Rules for the Interpretation of the CN, or may the national customs authorities form their own individual view of the matter and disregard the explanatory note in the event they consider there to be such a conflict?
EN Official Journal of the European Union C 267/44

Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 26 August 2009 — Afton Chemical Limited v Secretary of State for Transport

(Case C-343/09)

2009/C 267/76

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Afton Chemical Limited

Defendant: Secretary of State for Transport

Questions referred

In relation to the provisions relating to metallic additives in Directive 2009/30/EC of the European Parliament and of the Council amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions from the use of road transport fuels and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (‘the Directive’) (1):

1. With reference to that part of Article 1(8) which inserts a new Article 8(a)(2) into Directive 98/70 (2) limiting the use of methylcyclopentadienyl manganese tricarbonyl in fuel to 6 mg Mn per litre from 1 January 2011 and to 2 mg from 1 January 2014, is the imposition of such limits: (1) Unlawful as being based on a manifest error of assessment? (2) Unlawful as being in violation of the requirements of the precautionary principle? (3) Unlawful as lacking in proportionality? (4) Unlawful as being contrary to the principle of equal treatment? (5) Unlawful as being contrary to the principle of legal certainty?

2. With reference to that part of Article 1(8) which inserts a new Article 8(a)(4), Article 8(a)(5) and 8(a)(6) into Directive 98/70 requiring the labelling of all fuels which contain metallic additives with the phrase ‘contains metallic additives’, is the imposition of such a labelling requirement: (1) Unlawful as being based on a manifest error of assessment? (2) Unlawful as lacking in proportionality?

(1) OJ L 140, p. 88

(2) Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EC, OJ L 350, p. 58
(3)

If the answer to the second question is in the affirmative, in assessing whether a trader in a situation such as that of Isaac has been obviously negligent, (a) are the provisions of Article 14(c) of Commission Regulation 88/97 and Article 292(3) of Commission Regulation 2454/93 sufficiently clear that a trader who failed to ascertain, by consulting the Official Journal, that the simplified authorisation was not available to it due to the involvement of more than one customs authority, must be regarded as obviously negligent? (b) Alternatively, if the relevant provisions are to be regarded as complex, would it be incumbent on a trader to seek clarification from the taxing authorities prior to undertaking the importations? Does the answer to this question depend on whether the trader subjectively, but erroneously, concluded that the relevant provisions were clear in their application? (c) How is the experience of a trader, in a situation such as that of Isaac, whose main business is the import of bicycle parts from China, who employs five members of staff to deal with importation and has undertaken 33 similar importations in a period of 16 month to be classified? In particular, must such a trader be regarded as experienced? (d) Are the taxing authorities of a Member State, in assessing whether a trader, in a situation such as that of Isaac, has been obviously negligent, entitled to rely on published legislation such as the UK Tariff which, though available for consultation without charge at certain officers of the taxing authorities and other public libraries, is only available over the internet on payment of a yearly subscription?
2.

Is Commission Regulation (EC) No 729/2004 of 15 April 2004, published on 20 April 2004 in Official Journal of the European Union L 113, page 5, with a corrigendum published on 7 May 2004 in Official Journal of the European Union L 173, page 9, invalid on the ground that the Commission has restricted the scope of heading 9021 in that regulation? If the regulation is valid:
EN Official Journal of the European Union C 282/31

Reference for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 25 September 2009 — Gennaro Curia v Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

(Case C-381/09)

2009/C 282/53

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Gennaro Curia

Respondent: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

Question referred

In accordance with the Community law principles set out in the Sixth VAT Directive of the neutrality of VAT and exemption from VAT, under conditions laid down by the Member States, for transactions entailing the granting and the negotiation of credit and the management of credit by the person granting it, can exorbitant lending activities, which are a criminal offence under national law, be subject to VAT where, in economic terms, they may be envisaged as being in competition with the corresponding lawful activities of granting money loans, which fall within the scope of VAT under national law but are deemed exempt thereunder whenever they may be regarded as ‘finance transactions’?
EN Official Journal of the European Union C 282/28

Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 3 September 2009 — Gaston Schul BV v Staatssecretaris van Financiën

(Case C-354/09)

2009/C 282/48

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Gaston Schul BV

Defendant: Staatssecretaris van Financien

Question referred

In the case of subsequent entry in the accounts within the meaning of Article 220 of the Community Customs Code (1) must it be assumed that the condition laid down in Article 33(1)(f) of the Community Customs Code, under which import duties are not to be included in the customs value, is satisfied where the seller and buyer of the goods concerned have agreed on the delivery term ‘delivered duties paid’ and this is stated in the customs declaration, even if in determining the transaction price they — wrongly — assumed that no customs duties would be owed upon importation of the goods into the Community and consequently no amount of customs duties was stated in the invoice or in or with the declaration?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302 p. 1).
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, (1) and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive;
4.

If it is assumed that an unlawful levy, as a result of its structure, has had the effect that proportionately more has been paid in levies by undertakings which imported products than by undertakings which to a greater extent purchased domestic products, and, at the same time as the unlawful levy was introduced, another lawful levy was charged on another basis which proportionately affected both undertakings to the same extent, irrespective of the composition of the undertaking’s purchases, then guidance is sought on the following: (i) whether Community law allows for whole or partial refusal to reimburse the unlawful levy to an undertaking which imports products on grounds of passing-on and unjust enrichment, in so far as the refusal leads to a situation where the undertaking, as a result of having paid relatively more of the unlawful levy than a corresponding undertaking which purchased equivalent goods domestically, will thereby, all other things being equal, be placed in a worse position as a result of the tax restructuring and the refusal to reimburse than corresponding undertakings which to a greater extent purchased domestic goods; (ii) whether the reimbursement of the unlawful levy in the relevant situation may conceptually give rise to ‘unjust enrichment’ and may therefore be refused, if the reimbursement — even if the levy is regarded as having been passed on — is necessary in order to achieve a situation in which the effect of the tax restructuring, after any reimbursement, all other things being equal, remains the same for undertakings which imported products as for undertakings which purchased domestic products; (iii) whether refusal to reimburse in such a situation, which leads to undertakings which to a greater extent purchased domestic products and thus obtained an advantage in relation to undertakings which to a greater extent imported products, is otherwise contrary to Community law, including the principle of equal treatment; and (iv) whether the answer to question 3 means that it is not justified to refuse reimbursement of an unlawfully charged levy on grounds of unjust enrichment, to the extent that such reimbursement merely cancels out the advantage for those undertakings which purchased domestic products in relation to undertakings which to a greater extent imported products.
3.

If the answer to Question 1 is in the affirmative in respect of Article 49 EC et seq.: should a provision such as that contained in Article 67(2) of the Netherlands Code of Criminal Procedure, in so far as it makes possible the pre-trial detention of nationals of a Member State who have a fixed place of abode or residence in a Member State other than the Netherlands, be regarded as a restriction of the freedom to provide services within the meaning of Article 49 EC et seq. in that it involves discrimination based on the fact that the provider of the services does not have a fixed place of abode or residence in the country where the services are provided but does have one in another Member State of the EC?