ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 193/9

Reference for a preliminary ruling from High Court of Justice (Chancery Division) (Patents Court) (England and Wales) made on 29 May 2009 — Synthon BV v Merz Pharma Gmbh & Co KG

(Case C-195/09)

2009/C 193/10

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: Synthon BV

Defendant: Merz Pharma Gmbh & Co KG

Questions referred

1. For the purposes of Articles 13 and 19 of Council Regulation (EC) No 1768/92 (1), is an authorisation a ‘first authorization to place. on the market in the Community’, if it is granted in pursuance of a national law which is compliant with Council Directive 65/65/EEC (2), or is it necessary that it be established in addition that, in granting the authorisation in question, the national authority followed an assessment of data as required by the administrative procedure laid down in that Directive?

2. For the purposes of Articles 13 and 19 of Council Regulation (EC) No 1768/92, does the expression ‘first authorization to place. on the market in the Community’, include authorisations which had been permitted by national law to co-exist with an authorisation regime which complies with Council Directive 65/65/EEC?

3. Is a product which is authorised to be placed on the market for the first time in the EEC without going through the administrative procedure laid down in Council Directive 65/65/EEC within the scope of Council Regulation (EC) 1768/92 as defined by Article 2?

4. If not, is an SPC granted in respect of such a product invalid?

(1) Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products OJ L 182, p. 1

(2) Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to proprietary medicinal products OJ 22, p. 369 English special edition: Series I Chapter 1965-1966 p. 24
1.

Is an arrangement by which a municipal contracting authority concludes with a private undertaking in the form of a company which is separate from it a contract establishing a new undertaking in the form of a share company, on an equal share basis both in terms of ownership and of power of control, from which the municipal contracting authority commits itself, when setting up the company, to purchasing occupational health and wellbeing services for its own staff, on an overall assessment, an arrangement which must be put out to tender, on the ground that the general contract is a contract for the procurement of services within the meaning of Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts and public service contracts (1), or is the arrangement to be regarded as the establishment of a joint venture and the transfer of the business activity of a municipal enterprise to which that directive and the consequent obligation to put out to tender are not applicable?
1.

On a proper construction of [Articles 5, 17 and 18 of Council Directive 93/104/EC (1) of 23 November 1993 concerning certain aspects of the organisation of working time], are those provisions capable of being applied directly in the legal order of a Member State, irrespective of whether formal transposition has taken place or irrespective of national rules which restrict their applicability to certain occupations, in a dispute in which reference is made to collective measures adopted by both sides of industry which are in conformity with that directive?
1.

Must Article 204(1)(a) with reference to Articles 92 and 96 in conjunction with Article 1 and Article 4(9) and (10) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) be interpreted as meaning that a) a customs debt arises if a transit procedure for goods which do not physically exist is initiated by mistake in the NCTS system by an authorised consignor, and as a consequence the transit procedure cannot subsequently be discharged in accordance with the rules, or that b) a customs debt does not arise, since the transit procedure is presumed to apply solely to physically existing goods, so that the mistaken generation of a transit in the NCTS system for goods which do not physically exist does not lead to the imposition of customs duties?
2.

Do Article 10 of Directive 92/85/EEC (1) and the case-law of the Court of Justice of the European Communities preclude Article 224(4) of the Komerclikums, which provides that the members of the board of directors of a capital company may be removed without any restrictions, in particular, in the case of a woman, irrespective of the fact that she is pregnant?
2.

Do provisions of Community law or general principles governing the common organisation of the market in milk and milk products preclude a rule of national law which, in the framework of the balancing of the unused part of the national reference quantity against deliveries of excess quantities envisaged in Article 10(3) of Regulation No 1788/2003 in the situation at issue in the first question, allows the producer who has taken over the agricultural holding in the course of the twelve-month period to include the portion of the reference quantity already delivered by the other producer for the purpose of participating in the allocation of that unused part?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure the implementation of Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment, (1) or in any event by failing to inform the Commission that it had adopted such provisions, the Republic of Poland has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 220/20

Reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium lodged on 26 June 2009 — G.A. Dijkman and M.A. Dijkman-Lavaleije v Belgische Staat

(Case C-233/09)

2009/C 220/38

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Applicants: G.A. Dijkman and M.A. Dijkman-Lavaleije

Defendant: Belgische Staat

Question referred

Is it an infringement of Article 56(1) of the EC Treaty for residents of Belgium who invest in other countries, such as the Netherlands, with a view to avoiding the supplementary municipal tax due under Article 465 WIB92 to be obliged to use a Belgian intermediary for the payment out of income from moveable assets, whereas residents of Belgium who invest in Belgium always benefit from the system of withholding tax relief under Article 313 WIB92 and are thus able to avoid the supplementary municipal tax provided for in Article 465 WIB92, since withholding tax on movable assets has already been withheld at source?
—

Declare that, by failing to take, within the prescribed time-limits, all the measures necessary to withdraw the aid scheme considered unlawful and incompatible with the common market by Commission Decision 2005/919/EC of 14 December 2004 on the aid scheme for urgent measures to promote development and correct the trend in public finances (notified on 17 December 2004 under document No C(2004) 4746 (OJ 2005 L 335, p. 39) and to recover from the beneficiaries the aid granted under that scheme, the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and the EC Treaty.
EN Official Journal of the European Union C 267/41

Appeal brought on 17 August 2009 by Iride SpA, formerly AMGA SpA, against the judgment of the Court of First Instance (Eighth Chamber, extended Composition) delivered on 11 June 2009 in Case T-300/02 AMGA v Commission

(Case C-329/09 P)

2009/C 267/72

Language of the case: Italian

Parties

Appellant: Iride SpA, formerly AMGA SpA (represented by L. Radicati di Brozolo and T. Ubaldi, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— setting aside of the judgment in Case T-300/02 for distortion of the evidence in the file and error in the legal conclusions drawn by the Court of First Instance from that evidence in so far as it declares that the contested decision (1) is not of individual concern to Azienda Mediterranea Gas e Acqua S.p.A. (AMGA) and that the action brought by the latter in Case T300/02 is inadmissible;

— a declaration that action brought in Case T300/02 is admissible and an order referring the case back to the Court of First Instance to be dealt with on its merits, as provided for by Article 61 of the Statute of the Court of Justice;

— an order that the Commission should pay the costs at first instance and on appeal.

Pleas in law and main arguments

In support of its appeal, Iride puts forwards a single ground of appeal, concerning distortion of the evidence in the file and an error in legal conclusions drawn by the Court of First Instance from incorrect findings made in the judgment, as provided for in Article 230(4) EC and the relevant Community case-law. In Iride’s opinion, in particular, the Court of First Instance distorted the clear sense of the evidence that the Company produced for it to evaluate in order to confirm the treatment of AGMA as an actual recipient of individual aid granted under the scheme at issue, recovery of which had been ordered by the Commission. Because of that distortion of the evidence in the file, therefore, the Court of First Instance drew the incorrect inference that the contested decision was not of individual concern to the Company and that its action was, consequently, inadmissible.

(1) Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).
EN Official Journal of the European Union C 256/13

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 12 August 2009 — Secretary of State for the Home Department v Maria Dias

(Case C-325/09)

2009/C 256/26

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: Secretary of State for the Home Department

Defendant: Maria Dias

Questions referred

1. If a European Union citizen, present in a Member State of which she is not a national, was, prior to the transposition of Directive 2004/38/EC (1), the holder of a residence permit validly issued pursuant to Article 4(2) of Directive 68/360/EEC (2), but was for a period of time during the currency of the permit voluntarily unemployed, not self-sufficient and outside the qualifications for the issue of such a permit, did that person by reason only of her possession of the permit, remain during that time someone who ‘resided legally’ in the host Member State for the purpose of later acquiring a permanent right of residence under Article 16(1) of Directive 2004/38/EC?

2. If five years’ continuous residence as a worker prior to 30 April 2006 does not qualify to give rise to the permanent right of residence created by Article 16(1) of Directive 2004/38/EC, does such continuous residence as a worker give rise to a permanent right of residence directly pursuant to Article 18(1) of the EU Treaty on the grounds that there is a lacuna in the Directive?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

OJ L 158, p. 77

(2) Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families

OJ L 257, p. 13
EN Official Journal of the European Union C 267/45

Action brought on 28 August 2009 — Commission of the European Communities v Republic of Malta

(Case C-351/09)

2009/C 267/77

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, K. Xuereb, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

— Declare that, the Republic of Malta, (a) having failed to establish monitoring programmes for inland surface waters and make them operational in accordance with the first two paragraphs of Article 8 of Directive 2000/60/EC (1) (b) having also failed to fulfil the obligation to submit summary reports of the monitoring programmes for inland surface waters in accordance with the second paragraph of Article 15 of that Directive, is in breach of Articles 8 and 15 of the said Directive;

— Order the Republic of Malta to pay the costs.

Pleas in law and main arguments

According to Article 15(2) of the Directive, the latest date for submission of summary reports on monitoring programmes was 22 March 2007. Further, the obligation to submit the summary report regarding monitoring programmes for inland waters is independent from any obligation to submit the 1st Water Catchment Management Plan. To date, the summary report regarding monitoring programmes for inland surface waters has not been forthcoming. As a result, the Commission is of the opinion that the Republic of Malta has failed to fulfil obligations that it has under the second paragraph of Article 15 of the Directive.

In addition, on the basis of the above information provided by the Republic Malta, and by the lack of information concerning the summary report due by the Republic of Malta regarding monitoring programmes for inland surface waters, the Commission consequently takes the view that the Republic of Malta has failed, to date, to establish monitoring programmes for inland surface waters and make them operational in accordance with the first two paragraphs of Article 8 of the Directive. These programmes are essential in order to establish a coherent and comprehensive overview of water status within each river basin district (2).

(1) Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy

OJ L 327, p. 1

(2) Article 8(1) of Directive 2000/60/EC
EN Official Journal of the European Union C 267/33

Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 30 July 2009 — Staatssecretaris van Justitie; other party: F. Toprak

(Case C-300/09)

2009/C 267/60

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie

Other party: F. Toprak

Question referred

Must Article 13 of Decision No 1/80 [of 19 September 1980 on the development of the Association, taken by the Association Council set up under the Agreement establishing an Association between the European Economic Community and Turkey] be interpreted as meaning that a new restriction, within the terms of that provision, includes a tightening in respect of a provision which entered into force after 1 December 1980, and which constituted a relaxation of the provision which had been in force on 1 December 1980, if that tightening does not amount to a deterioration vis-à-vis the provision which was in force on 1 December 1980?
EN Official Journal of the European Union C 297/16

Reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009 — Canon Kabushiki Kaisha v IPN Bulgaria OOD

(Case C-181/09)

2009/C 297/20

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad (Bulgaria)

Parties to the main proceedings

Applicant: Canon Kabushiki Kaisha

Defendant: IPN Bulgaria OOD

By decision of 17 September 2009, the Court of Justice (Fifth Chamber) declared the reference for a preliminary ruling to be manifestly inadmissible.
5.

Where the search engine operator (i) presents a sign which is identical (in accordance with the Court's ruling in Case C-291/00) with a registered trade mark to a user within search bars located at the top and bottom of search pages that contain a sponsored link to the website of the competitor referred to in question 1 above, (ii) presents the sign to the user within the summary of the search results, (iii) presents the sign to the user by way of an alternative suggestion when the user has entered a similar sign in the search engine, (iv) presents a search results page to the user containing the competitor's sponsored link in response to the entering by the user of the sign and (v) adopts the user's use of the sign by presenting the user with search results pages containing the competitor's sponsored link, but the sponsored link does not itself include the sign or any similar sign, do any or all of these acts constitute ‘use’ of the sign by the search engine operator within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?
EN Official Journal of the European Union C 312/24

Reference for a preliminary ruling from the Višje sodišče v Mariboru (Republic of Slovenia) lodged on 20 October 2009 — Jasna Detiček v Maurizio Sgueglia

(Case C-403/09)

2009/C 312/39

Language of the case: Slovene

Referring court

Višje sodišče v Mariboru

Parties to the main proceedings

Applicant: Jasna Detiček

Defendant: Maurizio Sgueglia

Questions referred for a preliminary ruling

1. Does a court of the Republic of Slovenia (a Member State of the European Communities) have jurisdiction under Article 20 of Council Regulation (EC) No 2201/2003 (1) to take protective measures in a situation in which a court of another Member State, having by virtue of that regulation jurisdiction as to the substance, has already taken a protective measure declared enforceable in the Republic of Slovenia?

If the answer to the first question is in the affirmative:

2. May a Slovene court, pursuant to national law (as permitted by Article 20 of the regulation), take a protective measure under Article 20 of the regulation amending or rendering inoperative a final and enforceable protective measure taken by a court of another Member State which under that regulation has jurisdiction as to the substance?

(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).
EN Official Journal of the European Union C 11/17

Reference for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 27 October 2009 — José Maria Ambrósio Lavrador, Maria Cândida Olival Ferreira Bonifácio v Companhia de Seguros Fidelidade — Mundial SA

(Case C-409/09)

2010/C 11/28

Language of the case: Portuguese

Referring court

Supremo Tribunal de Justiça

Parties to the main proceedings

Appellants: José Maria Ambrósio Lavrador, Maria Cândida Olival Ferreira Bonifácio

Respondent: Companhia de Seguros Fidelidade — Mundial SA

Question referred

Are the provisions of Article 1 of the Third Motor Insurance Directive (1) to be interpreted as meaning that, in the event of a road-traffic accident … Portuguese civil law — and in particular Articles 503(1), 504, 505 and 570 of the Civil Code — may not exclude or limit the right to compensation of a child, himself a victim of the accident, on the sole ground that that child was partly, or even exclusively, responsible for the loss caused?

(1) Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33)
EN Official Journal of the European Union C 312/21

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 13 October 2009 — Oasis East sp. z o.o. v Minister Finansów

(Case C-395/09)

2009/C 312/34

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Oasis East sp. z o.o.

Respondent: Minister Finansów

Question referred

Does Community law (in particular, Article 17(6) of Sixth Council Directive 77/388/EEC (1) 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, now Article 176 of Council Directive 2006/112/EC (2) of 28 November 2006 on the common system of value added tax) entitle a Member State to apply national provisions which exclude the right of a taxable person to reduce the amount of tax due, or to receive a refund of the difference, in the case of the purchase of imported services in connection with which payment of the amount due is made directly or indirectly to a person having its place of residence, registered office or central management in one of the territories or countries referred to in national law as so-called ‘tax havens’, regard being had to the fact that such exclusion was applied in the Member State prior to its accession to the Community?

(1) OJ 1977 L 145, p. 1.

(2) OJ 2006 L 347, p. 1.
declare that, by failing to adopt the measures necessary to transpose correctly and fully,

Article 4(2) and (3), in conjunction with Annexes II and III,

Article 4(1), in conjunction with Annex I, point 8(a) and point 18(a), and Article 7(1)(b), and

Article 4(2) and (3), in conjunction with Annexes II and III and Annex III as such,

of Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997,

Belgium has failed to fulfil its obligations under that directive.
—

Declare that, by failing to take, within the prescribed time-limits, all the measures necessary to withdraw the aid considered unlawful and incompatible with the common market by Commission Decision No 2008/697/EC (1) of 16 April 2008 on State Aid C 13/07 (ex NN 15/06 and N 734/06) implemented by Italy for New Interline (notified under document number C(2008) 1321 on 17 June 2008), the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and the EC Treaty.
EN Official Journal of the European Union C 24/19

Reference for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 16 October 2009 — Ioan Tatu v Romanian State represented by the Ministerul Finanțelor și Economiei, Direcția Generală a Finanțelor Publice Sibiu, Administrația Finanțelor Publice Sibiu, Administrația Fondului pentru Mediu, Ministerul Mediului

(Case C-402/09)

2010/C 24/32

Language of the case: Romanian

Referring court

Tribunalul Sibiu

Parties to the main proceedings

Applicant: Ioan Tatu

Defendants: Romanian State, represented by the Ministerul Finanțelor și Economiei, Direcția Generală a Finanțelor Publice Sibiu, Administrația Finanțelor Publice Sibiu, Administrația Fondului pentru Mediu, Ministerul Mediului

Question referred

Are the provisions of OUG No 50/2008 [introducing a pollution tax for motor vehicles] (1), as subsequently amended (by OUG No 208/2008 (2) and OUG No 218/2008 (3)), contrary to the provisions of Article 90 of the EC Treaty, and do they constitute a measure which is manifestly discriminatory?

(1) OUG No 50/2008 introducing a pollution tax for motor vehicles, M.Of. No 237, 25.4.2008.

(2) OUG No 208/2008 implementing certain measures concerning the pollution tax for motor vehicles, M. Of. No 825, 8.12.2008.

(3) OUG No 836 amending the Ordonanța de urgență a Guvernului No 50/2008 on the introduction of the pollution tax for motor vehicles, M Of. No 836, 11.12.2008.