ddrg/super_eurlex huggingface dataset:
1.

Are the provisions of Article 3(2), and the third subparagraph of Article 3(3), of Directive 1999/44/EC (1) of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees to be interpreted as precluding a national statutory provision under which a seller, in the event that it has restored a consumer product to conformity with a contract of sale by way of replacement, does not have to pay the costs of the installation, in a particular unit, of the subsequently delivered product, in the case where the consumer has properly installed the contractually defective consumer product, if installation was not originally a contractual requirement?
C.

the taxable person has agreed with that other company to pay it the recommended retail price of the reward goods 1. How are Articles 14, 24 and 73 and 168 of the VAT Directive (1) (formerly Articles 5, 6 and 11(A)(1)(a) and 17(2) of the Sixth Directive (2)) to be interpreted as regards the payments by the taxable person to the other company? 2. In particular, are those provisions to be interpreted such that the payments by the taxable person to the other company are to be characterised: (a) solely as consideration for a supply of services by the other company to the taxable person; (b) solely as third party consideration for the supply of goods by the other company to the customers; (c) as consideration in part for the supply of services by the other company to the taxable person and in part for the supply of goods by the other company to the customers; or (d) as consideration for supplies both of advertising and marketing services and of reward goods by the other company to the taxable person? 3. If the answer to question 2 is that such payments are to be characterised in part as consideration for a supply of services by the other company to the taxable person and in part as third party consideration from the taxable person to the other company in respect of the other company's supply of goods to the customers, what are the criteria laid down by Community law to determine how the payment is to be apportioned between those two supplies?
2.

The Court of First Instance misconstrued the qualitative and quantitative requirements of the Community law requirement of ‘use in the course of trade’ under Article 8(4). First, it held that this requirement was to be interpreted as meaning any commercial use outside the merely private sphere, holding in particular that it was not required to genuinely use the alleged Article 8(4) right as would be the case with trade marks. In this context, it allowed for ‘free of charge’ shipments to be considered ‘use in the course of trade’ as well as use in a different function (trade mark use rather than appellation of origin use). Second, the contested decision erroneously allowed for use after the application date of the opposed trade mark to be taken into account and thereby disregarded that for a prior right to be suitable as a ground of opposition under Article 8, all conditions for this ground of opposition must be present at the time of filing of the opposed application. Third, the Court misconstrued Article 8(4) by holding that, in deviation from the principle of territoriality; use could be taken into account that had occurred in countries other than the countries where the alleged Article 8(4) rights exist.
2.

Does a national rule that permits the state, the parties to a collective agreement and the parties to an individual employment contract to specify the automatic termination of an employment relationship upon reaching a specific fixed age (in this case: reaching the age of 65), contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation if, according to established practice in place for several decades in the Member State, clauses of this type have consistently applied to the employment relationships of nearly all workers, irrespective of the prevailing economic, social and demographic state of affairs and the actual labour market situation?
EN Official Journal of the European Union C 113/23

Reference for a preliminary ruling from the Conseil d'État (France) lodged on 2 March 2009 — Graphic Procédé v Ministère du budget, des comptes publics et de la fonction publique

(Case C-88/09)

2009/C 113/44

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Graphic Procédé

Defendant: Ministère du budget, des comptes publics et de la fonction publique

Question referred

What are the criteria to be employed in order to determine whether reprographics is a supply of goods or a provision of services [for the purposes 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 1977 L 145, p. 1.
3.

Is the prohibition of discrimination against citizens on grounds of nationality, as laid down in Article 12 in conjunction with Article 18 of the EC Treaty, applicable to the rules on the access of non-residents to coffeeshops if and in so far as the provisions of the EC Treaty concerning the free movement of goods and services are not applicable?
EN Official Journal of the European Union C 141/28

Action brought on 1 April 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-120/09)

2009/C 141/50

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. van Beek and J.-B. Laignelot, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, by failing to transpose into Walloon law Article 2(f), (j) and (k) of, and point 4C of Annex III to, Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The European Commission raises two grounds of complaint in support of its action.

First, it alleges that the defendant has not transposed into the law of the Walloon Region the concepts of ‘underground storage’, ‘landfill gas’ and ‘eluate’ provided for by the provisions of Article 2(f), (j) and (k) of Directive 1999/31/EC on the landfill of waste. The Commission draws attention to the importance of those concepts which, being key concepts for the application of the directive, are also referred to in other provisions adopted on the basis of and in application of that directive.

Secondly, the applicant complains that Walloon law does not include any provisions relating to the trigger levels from which it can be considered that the location of the landfill has a significant adverse effect on groundwater quality. Point 4C of Annex III to the directive, which provides for the drawing up of such provisions, is crucially important in order to ensure effective control of groundwater quality and, consequently, to guarantee the protection of the environment which constitutes the essential objective of the directive.

(1) OJ 1999 L 182, p. 1.
EN Official Journal of the European Union C 153/25

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Dendermonde (Belgium) lodged on 22 April 2009 — Criminal proceedings against V.W. Lahousse & Lavichy BVBA

(Case C-142/09)

2009/C 153/45

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Dendermonde

Parties to the main proceedings

Defendants: : 1. V.W. Lahousse 2. Lavichy BVBA

Question referred

Must Directive 2002/24/EC, (1) in particular Article 1(1)(d) thereof (according to which the directive does not apply to vehicles intended for use in competition, on roads or in off-road conditions), be interpreted as allowing the Member States to extend its scope so as to render it applicable to all traffic by land (that is to say, also to the use of two or three-wheel motor vehicles off-road and/or on private land), without granting the exception in respect of vehicles intended for use in competition on roads (racing) or for vehicles in off-road conditions?

(1) Directive 2002/24/EC of the European Parliament and of the Council of 18 March 2002 relating to the type-approval of two or three-wheel motor vehicles and repealing Council Directive 92/61/EEC (OJ 2002 L 124, p. 1).
—

declare that, by not bringing into force all the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, (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 and the EC Treaty;
EN Official Journal of the European Union C 153/26

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 24 April 2009 — Hotel Alpenhof GesmbH v Oliver Heller

(Case C-144/09)

2009/C 153/47

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Hotel Alpenhof GesmbH

Claimant: Oliver Heller

Question referred

Is the fact that a website of the party with whom a consumer has concluded a contract can be consulted on the internet sufficient to justify a finding that an activity is being ‘directed’, within the terms of Article 15(1)(c) of Regulation (EC) No 44/2001 (‘the Brussels I Regulation’)? (1)

(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; OJ 2001 L 12, p. 1.
EN Official Journal of the European Union C 180/35

Action brought on 11 June 2009 — Commission of the European Communities v Portuguese Republic

(Case C-212/09)

2009/C 180/61

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: G. Braun, M. Teles Romão and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by maintaining the State’s special rights and those of other public bodies or the Portuguese public-sector in GALP Energia, SGPS S.A., the Portuguese Republic has failed to fulfil its obligations under Articles 56 EC and 43 EC.

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Under the Portuguese legislation, the State holds golden shares in GALP. The State has the right to appoint the Chairman of the Board of Directors. In matters within its competence, company resolutions are subject to its approval.

Any resolutions which seek to alter the articles of association, authorise the entering into joint contracts between companies, stipulating a controlling company or joint control, or which may in any way endanger the supply of oil, gas or derivatives thereof to the country, are subject to the State’s approval.

The Commission considers that both the State’s right to appoint a director with powers to approve resolutions and its right of veto in significant corporate actions severely restrict direct investment and portfolio investment.

Those special rights of the State constitute State measures since the golden shares are not the result of the normal application of company law.

Secondary Community law does not allow the State special rights in retailers of oil and of petroleum products. GALP has no responsibility for guaranteeing supply. The State sought to make GALP a company whose centre of decision-making is in Portugal. In any event, the Portuguese State has failed to comply with the principle of proportionality since the measures in question are not apt to ensure the attainment of the objectives pursued and go beyond what is necessary in order to attain them.
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC 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 (1) or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under Article 15(1) of that directive, and
6.

More particularly, if the granting of an environmental permit and/or other measures contribute to the national emission ceiling for SO2 in the NEC Directive being exceeded or the risk of it being exceeded, is an individual entitled, on the basis of Article 4 of that Directive: (a) to make a general claim that the Member State concerned should adopt a package of measures which, by 2010 at the latest, would limit the annual national emissions of SO2 to amounts not greater than the national emission ceilings in the NEC Directive, or, if that does not succeed, a package of measures which would limit the emissions to those amounts as soon as possible thereafter? (b) to make concrete claims that the Member State concerned should adopt specific measures in respect of an individual installation — for example, by refusing a permit or attaching further conditions or restrictions to the permit — which, by the year 2010 at the latest, would contribute to the annual national emissions of SO2 being limited to amounts not greater than the emission ceilings in the NEC Directive, or, if that does not succeed, specific measures which would contribute to the emissions being limited to those amounts as soon as possible thereafter? (c) In answering questions 6(a) and 6(b), is the extent to which the installation contributes to the emission ceiling being exceeded or the risk of it being exceeded, of significance?
EN Official Journal of the European Union C 193/10

Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 4 June 2009 — Schenker SIA v Valsts ieņēmumu dienests

(Case C-199/09)

2009/C 193/12

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Applicant: Schenker SIA

Defendant: Valsts ieņēmumu dienests

Question referred

Must Article 6(2) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code be interpreted as meaning that, with regard to an application for binding tariff information, binding information must be issued on identical goods, which share the same commercial denomination, article number or any other criterion which distinguishes or identifies the goods concerned?

(1) OJ 1993 L 253, p. 1.
1.

Does Article 43 EC and, in any event, Community law on competition, preclude a national rule such as that laid down in Article 1 of Law No 475 of 2 April 1968 and Article 13 of Presidential Decree No 1275 of 21 August 1971, in so far as it makes authorisation to transfer a pharmacy from one set of premises to another, even though it remains within the authorised area, subject to the requirement that it must be located at a distance of at least 200 metres from other similar establishments, measured by the shortest route on foot from door to door; in particular, are the restrictions on freedom of establishment imposed in that rule at odds with the reasons of public interest which could justify such restrictions and are they not in any event inappropriate for the purpose of meeting those interests?
EN Official Journal of the European Union C 205/29

Action brought on 9 July 2009 — Commission of the European Communities v Portuguese Republic

(Case C-255/09)

2009/C 205/51

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and M. França, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that the Portuguese Republic has failed to fulfil its obligations under Article 49 EC, by not providing for the reimbursement of non-hospital medical expenses incurred in another Member State, other than in the circumstances laid down in Regulation (EEC) No 1408/71, (1) either in Decree-Law No 177/92 of 13 August, which lays down the conditions for reimbursement of medical expenses incurred abroad, or in any other provision of national law; or to the extent that that Decree-Law allows for the reimbursement of non-hospital medical expenses incurred in another Member State, by making such reimbursement subject to prior authorisation.

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the Portuguese Republic has failed to fulfil its obligations under Article 49 EC, as interpreted by the case-law of the Court of Justice.

The effect of that case-law is that Article 49 EC applies to the situation of a patient who receives, in a Member State other than his Member State of residence, medical services which are provided for consideration.

In Portugal, Decree-Law No 177/92, which lays down the conditions for reimbursement of medical expenses incurred abroad, does not specifically provide for the reimbursement of non-hospital medical expenses incurred in another Member State, other than in the circumstances laid down in Regulation No 1408/71, or, in accordance with the interpretation put forward by the Portuguese authorities, it makes the reimbursement of those non-hospital medical expenses subject to prior authorisation, on restrictive conditions.

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416).
1.

Must a national court apply Article 49 EC to a dispute between the Rijksdienst voor Soziale Zekerheid and a principal contractor established in Belgium, where judgment is sought against that principal contractor pursuant to Article 30a(3) of the Law of 27 June 1969 amending the Decree-Law of 28 December 1944 on social security for employed persons (in the version applicable prior to the amendment of that article by Article 55 of the Programme Law of 27 April 2007) as being jointly and severally liable for a portion of the debts of a subcontractor who is unregistered and established in Belgium, or where judgment is sought against that principal contractor because he has not complied with the withholding obligation laid down by Article 30[a](4) of the Law?
3.

If the answer to the first question is affirmative, must Annex IV, Chapter 5, paragraph 1, of the Act of Accession to the European Union be interpreted as meaning that, when goods moving in the enlarged Community after being the subject of export formalities are not put into free circulation, they are not free of customs duties or other customs measures, even though it is beyond doubt that those goods have the status of Community goods? In other words, is it in the circumstances of the case decisive that the customs procedure of release for free circulation has been completed?
2.

Are the provisions of Italian law contained in Article 3(22) and (19) of the Public Contracts Code, enacted by Legislative Decree No 163/2006 (which provide, respectively, that ‘the term “economic operator” shall include a contractor, supplier, service provider or a group or consortium of these’ and ‘the terms “contractor”, “supplier” and “service provider” shall mean any natural or legal person, or body without legal personality, including a European Economic Interest Group (EEIG) formed pursuant to Legislative Decree No 240 of 23 July 1991, which “offers on the market”, respectively, the execution of works or a work, the supply of products or the provision of services’), and in Article 34 of that Public Contracts Code (which lists the entities allowed to participate in public procurement procedures) contrary to Directive 2004/18/EC if interpreted as restricting participation in tendering procedures to professional providers of such services and as excluding public entities the primary objects of which are not-for-profit, such as research?
2.

Must Article 87(2) 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 (as amended and supplemented) be interpreted as prohibiting the publication in advertisements for medicinal products of claims which conflict with the summary of product characteristics, but not requiring that all the claims in advertisements for medicinal products must be included in the summary of product characteristics or be derivable from information in the summary?
EN Official Journal of the European Union C 256/7

Action brought on 22 July 2009 — Commission of the European Communities v Portuguese Republic

(Case C-280/09)

2009/C 256/13

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by P. Oliver and G. Braga da Cruz, Agents)

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by failing to adopt the national measures required for the application of Articles 10 and 12 of Regulation (EC) No 273/2004 (1) of the European Parliament and of the Council of 11 February 2004 on drug precursors, by failing to communicate them in accordance with Article 16 of that act and by failing to adopt the national measures required for the application of Articles 26(3) and 31 of Council Regulation (EC) No 111/2005 (2) of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors, the Portuguese Republic has failed to fulfil its obligations under Regulations (EC) No 273/2004 and (EC) No 111/2005;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Regulation No 273/2004 entered into force on 18 August 2005 and Regulation No 111/2005 entered into force on 15 February 2005, being applicable from 18 August 2005.

Not having received any communication at all of any measures taken by the Portuguese Republic to give effect to the abovementioned provisions of those two regulations, and not being in possession of any other information that might allow it to conclude that the necessary measures have been adopted, the Commission supposes that the Portuguese Republic has not yet adopted those measures and so has not fulfilled its obligations under those regulations.

(1) OJ 2004 L 47, p. 1

(2) OJ 2005 L 22, p. 1
EN Official Journal of the European Union C 233/11

Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Paolo Lunardi v Agenzia delle Entrate Ufficio di Parma

(Case C-293/09)

2009/C 233/18

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Parma

Parties to the main proceedings

Applicant: Paolo Lunardi

Defendant: Agenzia delle Entrate Ufficio di Parma

Question referred

Is Article 19(5) of Presidential Decree No 633/72 at variance with Community law and with the principle of the neutrality of VAT, and in particular has Sixth Directive 77/388/EEC of 17 May 1977 been incorrectly transposed in so far as the practical consequence of national law is that, as a result of the method prescribed for calculating the deductible proportion, a taxable person whose transactions are exempt under statute has no right to deduct VAT paid on purchases of equipment?