ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 194/13

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Società Fondiaria Industriale Romagnola (SFIR) SpA v Ministero delle Politiche Agricole Alimentari e Forestali

(Case C-187/12)

2012/C 194/20

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Società Fondiaria Industriale Romagnola (SFIR) SpA

Respondents: Ministero delle Politiche Agricole Alimentari e Forestali AGEA — Agenzia per le Erogazioni in Agricoltura

Questions referred

Must the full dismantling of the production facilities for sugar, isoglucose and inulin syrup, pursuant to Article 3 of Council Regulation (EC) No 320/2006, (1) the detailed rules for the implementation of which are set out in Commission Regulation (EC) No 968/2006, (2) be interpreted as meaning that the facilities to be dismantled are those necessary for production, as specifically laid down in the abovementioned Article 3 of the Council regulation, in accordance with which the Commission regulation must itself be interpreted, failing which the latter regulation will be invalid? Consequently, pursuant to the abovementioned Article 3 of Council Regulation No 320/2006 and Article 4 of Commission Regulation No 968/2006, do the facilities to be dismantled include only those intended for the production of sugar, isoglucose and inulin syrup, and the other facilities referred to in Article 4(1)(c) of Regulation No 968/2006, including packaging facilities, that have been left unused and must be dismantled and removed for environmental reasons? Consequently, may those facilities not linked to the production of sugar, isoglucose and inulin syrup, and not left unused but used for other activities such as, in this case, packaging, and not subject to the obligation of removal for environmental reasons be kept, because they are not subject to the dismantling obligation under the above Community regulations?

(1) OJ L 58, p. 42.

(2) OJ L 176, p. 32.
EN Official Journal of the European Union C 118/11

Reference for a preliminary ruling from the Østre Landsret (Denmark), lodged on 31 January 2012 — The Commissioners for Her Majesty’s Revenue and Customs v Sunico ApS, M & B Holding ApS, Sunil Kumar Harwani

(Case C-49/12)

2012/C 118/17

Language of the case: Danish

Referring court

Østre Landsret (Denmark)

Parties to the main proceedings

Appellants: The Commissioners for Her Majesty’s Revenue and Customs

Respondents: Sunico ApS, M & B Holding ApS, Sunil Kumar Harwani

Question referred

Must Article 1 of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that its scope extends to cover a case in which the authorities of a Member State bring a claim for damages against undertakings and natural persons resident in another Member State on the basis of an allegation — made pursuant to the national law of the first Member State — of a tortious conspiracy to defraud consisting in involvement in the withholding of VAT due to the first Member State?

(1) OJ 2001 L 12, p. 1.
2.

Are Articles 26(2), 28, 30 and 107(1) of the Treaty on the Functioning of the European Union to be interpreted as precluding repeated legislative intervention such as that provided for in paragraphs 1 and 2 of Decree-Law No 22 of 28 March 2007 or in paragraph 69 of Decree-Law No 106 of 4 October 2007, by which Article 157(4) of the Fiscal Code was amended to the effect that only some taxable persons for VAT purposes (who have imported, or who are thought to have imported, goods after 15 April 2007 and who have obtained a deferred payment certificate) from among those in identical situations (inasmuch as they hold goods imported temporarily during the period preceding accession) are allowed not to pay VAT at customs?
1.

Does Article 7(1) of Directive 2003/88 (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that does not allow interruption of a leave period, so that, at a later time, the entire period — or what remains of it — can be taken, where a temporary incapacity takes effect before the period in which leave is taken and there are reasons connected with production or organisation which preclude the leave from being taken in another later period?
EN Official Journal of the European Union C 133/16

Action brought on 13 February 2012 — European Commission v French Republic

(Case C-76/12)

2012/C 133/29

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Roels and C. Soulay, Agents)

Defendant: French Republic

Form of order sought

— declare that, by maintaining in force a tax regime which exempts from tax dividends paid by a French company to investment funds established in France, whereas the same dividends distributed to investment funds established in another Member State of the European Union or of the European Economic Area are subject to a withholding tax, the French Republic has failed to fulfil its obligations under Article 63 of the Treaty on the Functioning of the European Union and Article 40 of the Agreement on the European Economic Area;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission challenges the difference in the tax treatment of dividends paid by French companies to undertakings for collective investment in transferable securities (UCITS) depending on whether those UCITS are resident or non-resident in France. One of the elements of the tax regime applied to UCITS resident in France is the fact that the latter are not subject to tax in respect of dividends distributed to them by French companies. By contrast, pursuant to Article 119a (2) of the French General Tax Code (Code général des impôts), a withholding tax is applied to dividends distributed by French companies to non-resident UCITS. The Commission takes the view that the differing tax treatment applied to resident and to non-resident UCITS, although they are in an objectively comparable situation irrespective of their State of residence, constitutes an obstacle to the free movement of capital, and that that obstacle is not justified by the effectiveness of fiscal supervision or by the need to safeguard a balanced apportionment of the power to tax.

The Commission notes that, according to settled case-law as set out in particular in the judgments in Case C-540/07 Commission v Italy [2009] ECR I-10983 and Case C-284/09 Commission v Germany [2011], the Court has held that Member States which subject dividends distributed to companies established in other Member States to a tax regime which is less favourable than that applied to dividends distributed to resident companies, without that difference in treatment being justified by objectively different situations or by overriding reasons in the general interest, have failed to fulfil their obligations in respect of the free movement of capital.
1.

Does Article 16(3) and (4) of Directive 2003/87 (1) mean that an operator who has not surrendered a sufficient number of emission allowances by 30 April must pay a penalty regardless of the cause of the omission, for example, where, although the operator had a sufficient number of emission allowances on 30 April, as a result of an oversight, an administrative error or a technical problem it did not surrender them then?
1.

According to the first plea in law the General Court infringed European Union law, erred in its assessment of the relevant facts and provided insufficient grounds for the order by regarding the appellants as merely potential beneficiaries of the aid scheme approved by the Commission. The General Court disregards the fact that, before the decision [C(2009) 9963 final], (1) the appellants benefited from the existing aid measures that were required to be amended as a result of the decision. The appellants are not, therefore, merely potential beneficiaries of the modified aid, but also in fact beneficiaries of the existing aid. In the latter capacity the decision at issue is indeed of individual concern to them.
3.

Where a Court of a Member State has contemplated the placement of a child for a specified time in a residential care institution in another Member State and has obtained the consent of that State in accordance with Article 56 of Council Regulation 2201/2003, must the judgment of the court directing the placement of a child for a specified time in a residential care institution situated in another Member State be recognised and/or declared enforceable in that other Member State as a precondition to the placement being effected?
EN Official Journal of the European Union C 138/3

Reference for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 20 February 2012 — Adzo Domenyo Alopka, Jarel Mondoulou, Eja Mondoulou v Ministre du Travail, de l’Emploi et de l’Immigration

(Case C-86/12)

2012/C 138/04

Language of the case: French

Referring court

Cour administrative (Luxembourg)

Parties to the main proceedings

Applicants: Adzo Domenyo Alopka, Jarel Mondoulou, Eja Mondoulou

Defendant: Ministre du Travail, de l’Emploi et de l’Immigration

Questions referred

Is Article 20 TFEU — if necessary, read in conjunction with Articles 20, 21, 24, 33 and 34 of the Charter of Fundamental Rights, or with one or more of those provisions read separately or in conjunction — to be interpreted as precluding a Member State from refusing a third-country national, with sole responsibility for his or her infants who are citizens of the European Union, residence in the Member State of residence of the children, where they have been living with that person since birth, without having that nationality, while refusing the third-country national a residence permit, or even a work permit?

Are such decisions to be regarded as being in the nature of decisions depriving those children, in their country of residence, in which they have lived since birth, of effective enjoyment of the substance of the rights attaching to the status of citizen of the European Union also in the situation where their other direct ascendant, with whom they have never shared family life, is resident in another Member State of the European Union, of which that person is a national?
2.

Must those words be interpreted as including a payment made to a creditor of the insolvent debtor at the latter’s request, in the case where the party which carried out that payment obligation on behalf and for the benefit of the insolvent debtor did so while unaware of the existence of insolvency proceedings which had been opened against the debtor in another Member State?
—

declare that, by not bringing into force the laws, regulations and administrative provisions necessary to comply with Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for Community action in the field of marine environmental policy (Marine Strategy Framework Directive), (1) or in any event by not notifying the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 26(1) of that directive;
1.

Must Article 345 TFEU be interpreted as meaning that the ‘rules in Member States governing the system of property ownership’ also include the rule in respect of the absolute ban on privatisation which is at issue in the present case, as set out in the Besluit aandelen netbeheerders (Decree on shares in system operators), in conjunction with Article 93 of the Elektriciteitswet 1998 (1998 Law on electricity) and Article 85 of the Gaswet (Law on gas), under which shares in a system operator can be transferred only within the circle of public authorities?
2.

Do Articles 242 and 273 of Directive 2006/112/EC (1) permit the Member States to impose a fine on taxpayers who have allegedly failed to fulfil on time their duty to show circumstances in their accounts that are of significance to the calculation of VAT where that fine amounts to the VAT not paid on time if that default is later remedied and the VAT owed is paid in full plus interest thereon?
2.

If the first question is answered in the affirmative, must Article 3 of Council Directive 72/166/EEC of 24 April 1972, the First Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, and [Article 1(2)] of Council Directive 84/5/EEC of 30 December 1983, the Second Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, be interpreted as meaning that those provisions preclude legislation of a Member State whereby civil liability applicable in that State — the maximum amount of compensation for non-material damage — is limited by the establishment of a limit that is substantially lower than the limit laid down for the insurer’s liability in the directives and in national law?
EN Official Journal of the European Union C 243/8

Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 May 2012 — Association Vent De Colère! Fédération nationale, Alain Bruguier, Jean-Pierre Le Gorgeu, Marie-Christine Piot, Eric Errec, Didier Wirth, Daniel Steinbach, Sabine Servan-Schreiber, Philippe Rusch, Pierre Recher, Jean-Louis Moret, Didier Jocteur Monrozier v Ministre de l’écologie, du développement durable, des transports et du logement, Ministre de l’Économie, des Finances et de l’Industrie

(Case C-262/12)

2012/C 243/14

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Association Vent De Colère! Fédération nationale, Alain Bruguier, Jean-Pierre Le Gorgeu, Marie-Christine Piot, Eric Errec, Didier Wirth, Daniel Steinbach, Sabine Servan-Schreiber, Philippe Rusch, Pierre Recher, Jean-Louis Moret, Didier Jocteur Monrozier

Defendants: Ministre de l’écologie, du développement durable, des transports et du logement, Ministre de l’Économie, des Finances et de l’Industrie

Question referred

In the light of the change in the mechanism for financing in full the additional costs imposed on Électricité de France and the non-nationalised distributors referred to in Article 23 of Law No 46-628 of 8 April 1946 on the nationalisation of electricity and gas by the obligation to purchase at higher than market price the electricity generated by wind-power installations, as a result of Law No 2003-8 of 3 January 2003, must that mechanism now be regarded as an intervention by the State or through State resources within the meaning, and for the application, of Article 87 EC?
2.

Do Article 2(1)(c) and Article 26 of Directive 2006/112 preclude a national provision under which the supply of a service carried out free of charge and consisting in the improvement of a leased asset item or of an asset item the use of which has been assigned in some other way is in all circumstances to be treated as being taxable? Is it of significance to an answer to this question, in circumstances such as those in the main proceedings, that: — the party supplying the service carried out free of charge has exercised the right to deduct value added tax on the goods and services used in making the improvements and that this has not yet been disallowed by a tax assessment instrument that has become final; — at the date of the tax assessment, the company had not yet begun to make any taxable turnover from the properties and the period of validity of the contracts had nevertheless not yet expired?
1.

Is Article 4 of the Law of 27 February 1987 on Disability Benefits compatible with European Union Law, and in particular with the Charter of Fundamental Rights of the European Union (200/C 364/01), inter alia Articles 20, 21 and 26 thereof, in so far as it excludes from entitlement to disability benefits, solely on grounds of nationality, a foreign national who is lawfully resident in Belgium, is entered in the Aliens Register and has strong and long-standing links with Belgium, having lived there with his family for 12 years, with the particular circumstance that that foreign person is a national of a third country which is an official candidate for accession to the European Union?
2.

If the first question is answered in the negative, can the principle of proportionality in the context of the imposition of a registration tax in a case such as this have a corrective effect, and, if so, does that principle then have the effect that one or both of the Member States is/are required to restrict the exercise of their powers of taxation, and how should any such restriction be manifested?
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to give effect to Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, (1) and in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 4 of that directive;
1.

Must Article 6 of Directive 2001/29/EC (1) be interpreted, including in the light of recital 48 in the preamble thereto, as meaning that the protection of technological protection measures attaching to copyright-protected works or other subject matter may also extend to a system, produced and marketed by the same undertaking, in which a device is installed in the hardware which is capable of recognising on a separate housing mechanism containing the protected works (videogames produced by the same undertaking as well as by third parties, proprietors of the protected works) a recognition code, in the absence of which the works in question cannot be visualised or used in conjunction with that system, the equipment in question thus incorporating a system which is not interoperable with complementary equipment or products other than those of the undertaking which produces the system itself?
EN Official Journal of the European Union C 287/26

Action brought on 19 July 2012 — European Commission v Italian Republic

(Case C-345/12)

2012/C 287/50

Language of the case: Italian

Parties

Applicant: European Commission (represented by: E. Montaguti and K. Hermann, acting as Agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by failing to lay down an obligation to make available, when buildings are sold or rented out, an energy performance certificate, in accordance with the provisions, and on the conditions, laid down in Articles 7 and 10 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, (1) the Italian Republic has failed to fulfil its obligations under Article 7(1) and (2) and Article 10 of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings; (2)

— declare that, by having failed to notify all the measures transposing Article 9 of Directive 2002/91/EC, the Italian Republic has failed to fulfil its obligations under Article 15(1) of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2002/91/EC expired on 4 January 2006. The period for transposing Articles 7 to 9 of that directive expired on 4 January 2009 and, in the Commission’s submission, Article 28 of Directive 2010/31/EU, which allows Member States to defer the application of the requirement to make energy performance certificates available, does not cover certificates already issued or to be issued on the basis of Article 7(1) of Directive 2002/91/EC.

At the date of commencement of this action, the defendant had not yet adopted all the measures necessary to implement the directive.

(1) OJ 2003 L 65, p. 1.

(2) OJ 2010 L 153, p. 13.
1.

Do Articles 43, 56 and 58 of the Treaty establishing the European Community (now Articles 49, 63 and 65 of the Treaty on the Functioning of the European Union) preclude legislation, such as that at issue in the main proceedings, under which, where a resident of a Member State of the European Union who is a shareholder of a company established in another Member State of the European Union receives dividends taxed in the two Member States and the double taxation is regulated by the imputation in the Member State of residence of a tax credit for the same amount as the tax paid in the State of the distributing company, the tax capping mechanism of up to 60 % or 50 % of income received during a year does not take into account, or takes only partially into account, the tax paid in the other State;
1.

Are Article 101 TFEU (formerly Article 81 of the EC Treaty, read in conjunction with Article 10) and Article 4(3) TEU compatible with rules such as those laid down in the regulation on the tariff applying to procuradores, namely: Royal Decree 1373/2003 of 7 November 2003, which provides that their remuneration is subject to a minimum tariff or scale, which can be varied, upwards or downwards, only by 12 % and when it is not really possible for the authorities of the Member State, including the courts, to depart from the minimum levels laid down in the statutory scale if exceptional circumstances arise?
EN Official Journal of the European Union C 9/28

Appeal brought on 27 August 2012 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-338/08 Stichting Natuur en Milieu, Pesticide Action Network Europe v Commission

(Case C-405/12 P)

2013/C 9/46

Language of the case: Dutch

Parties

Appellant: European Commission (represented by: P. Oliver, J.-P. Keppenne, G. Valero Jordana, P. van Nuffel, Agents)

Other parties to the proceedings:

Stichting Natuur en Milieu,

Pesticide Action Network Europe,

Republic of Poland,

Council of the European Union

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Seventh Chamber) of 14 June 2012 in Case T-338/08;

— rule on the substance of the case and dismiss the actions for annulment of the Commission’s decisions of 1 July 2008; and

— order the applicants to pay the costs incurred by the Commission in Case T-338/08 and in this appeal.

Pleas in law and main arguments

The appellant’s first plea coincides with the first plea in Case C-403/12 P.

By its second plea, the Commission submits, in the alternative, that the General Court misinterpreted the scope of Article 9(3) of the Aarhus Convention (1) in the light of the second subparagraph of Article 2(2) of that convention, by concluding that the Commission did not act ‘in a legislative capacity’ within the meaning of the latter provision in adopting Regulation (EC) No 149/2008. (2)

(1) Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).

(2) Commission Regulation of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto (OJ 2008 L 58, p. 1).