ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 234/20

Reference for a preliminary ruling from the Landesarbeitsgericht Hamm (Germany) lodged on 4 May 2010 — KHS AG v Winfried Schulte

(Case C-214/10)

()

2010/C 234/31

Language of the case: German

Referring court

Landesarbeitsgericht Hamm

Parties to the main proceedings

Applicant: KHS AG

Defendant: Winfried Schulte

Question referred

Is Article 7(1) of Directive 2003/88/EC (1) to be interpreted as precluding national legislation and/or practices under which entitlement to minimum paid annual leave expires at the end of the reference period and/or carry-over period even in the case where the worker has been unfit for work over a prolonged period (and that prolonged period of unfitness for work has the result that that worker could have accumulated entitlement to minimum leave for several years if the possibility of carrying over such entitlement had not been limited in time)? If that question is answered in the negative, must the possibility of carrying over leave entitlement exist for a period of at least 18 months?

(1) Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).
EN Official Journal of the European Union C 246/22

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 21 June 2010 — Administración General del Estado v Red Nacional de Ferrocarriles Españoles (RENFE)

(Case C-303/10)

()

2010/C 246/37

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Appellant: Administración General del Estado

Respondent: Red Nacional de Ferrocarriles Españoles (RENFE)

Question referred

Must the phrase ‘in the field of passenger transport, and the carriage of goods, by rail’ as used in Article 8(2)(c) of Council Directive 92/81/EEC (1) of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils, for the purposes of defining the exemption which the Member States may provide in that field, be interpreted strictly, in accordance with its literal meaning, or, conversely, must it be interpreted broadly, as meaning that the exemption extends to fuel used by machinery for the maintenance of the railway infrastructure, which moves by rail?

(1) OJ 1992 L 316, p. 12.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC (1) of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), or in any event by failing to notify the Commission thereof, the Republic of Finland, with regard to the province of Åland, has failed to fulfil its obligations under that directive;
2.

Is the first paragraph of Article 110 TFEU (formerly Article 90 EC) to be interpreted as precluding a Member State from introducing a tax with the characteristics of the pollution tax introduced by Government Emergency Order No 50/2008, as amended by Government Emergency Order No 218/2008, from which motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, are exempt, as are all motor vehicles in category N1 and pollution class Euro 4 which were registered for the first time in Romania or in another Member State between 15 December 2008 and 31 December 2009, but which applies to motor vehicles with different technical characteristics from those indicated which were registered during the same period in other Member States, in that such a tax could amount to a domestic tax on goods from other Member States which is indirectly discriminatory when compared with the tax treatment of domestic goods, thus protecting the domestic manufacture of new motor vehicles?
1.

What are the criteria which determine unfitness for human consumption under paragraph 3 of Chapter IX of Annex II to Regulation (EC) No 852/2004? (1) Does such unfitness already exist where a foodstuff offered for sale could conceivably be touched or sneezed upon by a would-be purchaser?
Appeal brought on 22 July 2010 by EMC Development AB against the judgment of the General Court (Fifth Chamber) delivered on 12 May 2010 in Case T-432/05: EMC Development AB v European Commission

(Case C-367/10 P)

()

(2010/C 288/33)

Language of the case: English

Parties

Appellant: EMC Development AB (represented by: W.-N. Schelp, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

(i) annul the Commission's Decision dated 28.09.05;

(ii) in the alternative to (i), set aside the Judgment under appeal in whole or in part and refer the case back to the General Court for an adjudication on the substance, in the light of the guidance which this Court may provide to it;

(iii) in any event, Order the Commission to pay the costs of the Applicant incurred before the General Court and the Court of Justice.

Pleas in law and main arguments

The applicant submits that the General Court, in adopting the Commission's positions vis à vis the Guidelines, required the appellant to prove matters of fact and placed an unassailable burden upon the appellant. In so doing it has sought to require proof of the Standard's effects without considering the wider and more fundamental issues of its nature. The applicant considers that this constitutes an error of law and that the order of procedure of the tests as between the nature and the effects of the Standard have been reversed.
EN Official Journal of the European Union C 274/13

Action brought on 30 July 2010 — European Commission v Kingdom of Belgium

(Case C-383/10)

()

2010/C 274/20

Language of the case: French

Parties

Applicant: European Commission (represented by: R. Lyal and F. Dintilhac, Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that, by introducing and maintaining a system of discriminatory taxation of interest payments by non-resident banks, by applying a tax exemption only to interest payments by Belgian banks, the Kingdom of Belgium has failed to fulfil its obligations under Articles 56 and 63 of the Treaty on the Functioning of the European Union (ex Articles 49 and 56 respectively of the EC Treaty) and Articles 36 and 40 of the Agreement on the European Economic Area;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission criticises the national provisions at issue inasmuch as they have the effect of discouraging Belgian residents from using the services of banks established in other Member States of the European Union, as the interest paid by such banks cannot benefit from a tax exemption applicable only to interest paid by Belgian banks.

As a preliminary issue, the Commission rejects, in particular, the defendant’s argument that direct taxation is an exclusive competence of Member States and makes clear that this area is implicitly but necessarily included in the competence relating to the internal market and therefore constitutes a shared competence between the European Union and the Member States.

In response to the objections raised by the Belgian authorities, the Commission submits, first of all, that the absence of a complaint brought on this matter by the financial sector has no relevance since an action seeking a declaration of a failure to fulfil obligations is objective and so cannot be subject to there being a complaint. Second and third, the Commission does not agree, first, with the argument that the aforementioned measures are justified by the overriding reason relating to the public interest in ensuring the effectiveness of fiscal supervision and second, with the claim that the legislation at issue is a socio-political measure that protects the public interest. In the fourth place, the applicant rejects the justification of the Belgian authorities relating to the limited effectiveness of extending this exemption and contends that the group of taxpayers to which this measure applies could also be interested by the services of banks established in other Member States. In the fifth place, the Commission challenges the defendant’s argument relating to the disparities existing in the European Union as regards consumer where a bank fails and recalls the fact that this area is subject to European Union harmonisation. Finally, the Commission invokes the fact that Belgium has three official languages (Dutch, French and German) and that the objections raised, relating to the risk of inadequate information because of the use of a language that is not spoken in Belgium by a bank established outside Belgium, are not justified.
EN Official Journal of the European Union C 301/6

Action brought on 29 July 2010 — Commission v Italian Republic

(Case C-379/10)

()

2010/C 301/08

Language of the case: Italian

Parties

Applicant: European Commission (represented by: L. Pignatoro and M. Nolin, Agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by excluding any liability on the part of the Italian State for damage caused to individuals by an infringement of European Union law attributable to a national court adjudicating at last instance where such an infringement results from interpretation of provisions of law or assessment of facts or evidence carried out by that court and limiting such liability to cases of intentional fault and serious misconduct, pursuant to Article 2(1) and (2) of Law No 117 of 13 April 1988, the Italian Republic has failed to fulfil its obligations in connection with the general principle of the liability of Member States, laid down by the Court in its case-law, for breach of European Union law by one of its courts adjudicating at last instance, which is a principle established by the Court of Justice of the European Union.

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

Law No 117 of 13 April 1988 on compensation for damage caused in the exercise of judicial functions and the civil liability of judges excludes any liability on the part of the Italian State for damage caused to individuals by an infringement of European Union law attributable to a national court adjudicating at last instance where such an infringement results from interpretation of provisions of law or assessment of facts or evidence carried out by that court. Moreover, that law restricts liability to cases of intentional fault and serious misconduct.

In its judgment in Case C-173/03 Traghtetti del Mediterraneo v Italy, (1) the Court ruled as follows:

‘Community law precludes national legislation which excludes State liability, in a general manner, for damage caused to individuals by an infringement of Community law attributable to a court adjudicating at last instance by reason of the fact that the infringement in question results from an interpretation of provisions of law or an assessment of facts or evidence carried out by that court. Community law also precludes national legislation which limits such liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State concerned in other cases where a manifest infringement of the applicable law was committed, as set out in paragraphs 53 to 56 of [Case C-224/01 Köbler v Austria]’. (2)

The Court therefore found that Law No 117 is incompatible with its case-law. That case-law remains in force and is applied. The case-law of the Court has therefore been infringed.

(1) (2006) ECR I-5177.

(2) [2003] ECR I-10239.
6.

Does the scale of the entitlement to payment in lieu based on Article 7(2) of Directive 2003/88/EC extend only to the minimum leave of four weeks guaranteed by Article 7(1) of Directive 2003/88/EC, or does the entitlement to a payment in lieu also extend to the additional leave entitlements for which national law provides? Do those extended leave entitlements also include entitlements to leave of absence arising solely from a particular distribution of working time?
1.

Must the Insolvency Directive, (1) in particular Articles 4, 5 and 10 thereof, be interpreted in such a way as to render generally incompatible with it a national rule which obliges employees, in the event of the insolvency of their employer, in order to (fully) validate their right to have their outstanding wage claims met, to register as job-seekers at the latest on the first working day after the day on which the employment relationship ended or should reasonably have ended? If not:
EN Official Journal of the European Union C 301/12

Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 27 August 2010 — Georgetown University, University of Rochester, Loyola University of Chicago v Comptroller-General of Patents, Designs and Trade Marks

(Case C-422/10)

()

2010/C 301/17

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Georgetown University, University of Rochester, Loyola University of Chicago

Defendant: Comptroller-General of Patents, Designs and Trade Marks

Question referred

1. Does the SPC Regulation and, in particular, Article 3(b), permit the grant of a Supplementary Protection Certificate for a single active ingredient or combination of active ingredients where: (a) a basic patent in force protects the single active ingredient or combination of active ingredients within the meaning of Article 3(a) of the SPC Regulation; and (b) a medicinal product containing the single active ingredient or combination of active ingredients together with one or more other active ingredients is the subject of a valid authorisation granted in accordance with Directive 2001/83/EC (1) or 2001/82/EC (2) which is the first marketing authorization that places the single active ingredient or combination of active ingredients on the market?

(1) 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

OJ L 311, p. 67

(2) Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products

OJ L 311, p. 1
2.

Must Article 45 TFEU and/or Article 21 TFEU be interpreted as meaning that a national provision, such as Article 19(1)(f) of the Werkloosheidswet (Netherlands Law on unemployment), which makes the revival of entitlement to unemployment benefit conditional on the place of residence of the person concerned being within the territory of the Netherlands, even if that person lives just a short distance from the Netherlands border and is entirely focused on the Netherlands labour market, is compatible with those articles?
3.

In the circumstances of the main proceedings, are the principle of proportionality and the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and the measures adopted in accordance with EU law to give them effect, or as the case may be the criteria contained in Article 27(1) and (2) of 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, to be interpreted as meaning that, where a commercial company registered under the law of a Member State owes a public-law debt classified as a ‘considerable debt’ under the law of that State, they allow a natural person who is the director of the company concerned to be prohibited from leaving that Member State where the following circumstances obtain: 3.1. the existence of a ‘considerable’ public-law debt is regarded as a genuine, present and sufficiently serious threat affecting a fundamental interest of society, an assessment which the legislature has made by introducing the specific administrative measure of a ‘prohibition on leaving the country’; 3.2. no provision is made for an assessment of circumstances connected with the personal conduct of the director or with an infringement of his fundamental rights, such as his right to pursue an occupational activity involving travelling abroad under a separate legal relationship; 3.3. the consequences for the commercial activities of the debtor company and the possibilities of settling the public-law debt are not assessed after the prohibition has been imposed; 3.4. the prohibition is imposed on the basis of an application which is binding if it certifies that a ‘considerable’ public-law debt exists which is owed by a specific commercial company, that the debt is not secured to an extent sufficient to cover the principal and the interest, and that the person against whom the imposition of the prohibition is applied for is a member of an executive body of that commercial company; 3.5. the prohibition lasts until such time as the public-law debt is fully settled or secured, but no provision is made for a review of that prohibition on application by the addressee to the authority which imposed the prohibion or for account to be taken of the limitation period applicable to the debt?
1.

Are the interpretation and application of Article 3 of Law 241/1990 and of Article 3 of Sicilian Regional Law 10/1991 — in relation to Article 1 of Law 241/90, which requires the Italian administrative authorities to apply the principles of European Union law, pursuant to the obligation to state reasons for the acts of public authorities laid down in the second paragraph of Article 296 of the Treaty on the Functioning of the European Union and in the third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union — to the effect that measures of public authorities in a private-law form — that is to say, measures relating to individual rights and which are in any event mandatory, in matters relating to pensions — may be exempt from the obligation to state reasons, compatible with European Union law, and does such a case amount to infringement of an essential procedural requirement governing an administrative measure?
1.

Must Article 7(f) of Directive 95/46/EC (1) of the European Parliament and of the Council of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data be interpreted as precluding the application of national rules which, in the absence of the interested party’s consent, and to allow processing of his personal data that is necessary to pursue a legitimate interest of the controller or of third parties to whom the data will be disclosed, not only require fundamental rights and freedoms not to be prejudiced, but also require the data to appear in public sources?
EN Official Journal of the European Union C 346/29

Action brought on 17 September 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-458/10)

()

2010/C 346/48

Language of the case: French

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán and O. Beynet, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— Declare that by failing to transpose fully and correctly Article 9(3)(b),(c) and (e) of Directive 98/83/EC, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 9(3)(b),(c) and (e) of Directive 98/83/EC;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The Commission bases its action on two grounds of complaint.

By its first ground of complaint, the Commission maintains that the transposition of points (b) and (c) of Article 9(3) of Directive 98/83 (1) is incomplete. The national legislation does not provide that the derogation must contain ‘previous relevant monitoring results’ and does not refer to ‘the quantity of water supplied each day’, ‘the population concerned’ and ‘whether or not any relevant food-production undertaking would be affected’.

By its second ground of complaint, the Commission claims that the transposition of point (e) of Article 9(3) of Directive 98/83 is incomplete and incorrect, since the Luxembourg authorities claim, inter alia, that, given that it is the party requesting a derogation who is responsible for defining and implementing remedial measures, it is that party who should provide a ‘summary of the plan’, a ‘timetable for the work’ and an ‘estimate of the cost’ of the measures, and not the party making the decision to grant the derogation, as required by the directive.

(1) Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32)
EN Official Journal of the European Union C 13/18

Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria) lodged on 14 October 2010 — Immobilien Linz GmbH & Co KG v Finanzamt Freistadt Rohrbach Urfahr

(Case C-492/10)

()

2011/C 13/31

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Appellant: Immobilien Linz GmbH & Co KG

Respondent: Finanzamt Freistadt Rohrbach Urfahr

Question referred

Does the absorption of a company’s losses by its sole member, a public body whose representative was instructed by the competent body to grant an annual member’s contribution to cover losses up to the amount provisionally earmarked in the budget estimate or business plan adopted by the company prior to the beginning of the financial year, increase the assets of that company within the meaning of Article 4(2)(b) of Directive 69/335/EEC (1) (which is identical to Article 3(h) of Directive 2008/7/EC)?

(1) Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ 1969 L 249, p. 25)
1.

Is Article 8(1)(c) of Council Directive 92/81/EEC of 19 October 1992 (1) on the harmonisation of the structures of excise duties on mineral oils to be interpreted as meaning that mineral oils supplied for use in an excavator which is affixed to a vessel but which, because it has its own separate motor and fuel tank, operates independently of the vessel’s propulsion motor, in circumstances such as those of the present case, are exempt from duty?
EN Official Journal of the European Union C 30/14

Action brought on 25 October 2010 — European Commission v Kingdom of the Netherlands

(Case C-508/10)

()

2011/C 30/23

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: M. Condou-Durande and R. Troosters, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— declare that, by requiring third-country nationals and their family members applying for long-term resident status to pay high and unfair charges, the Kingdom of the Netherlands has failed to fulfil its obligations under Directive 2003/109/EC (1) and, accordingly, its obligations under Article 258 TFEU;

— order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission regards the amount of EUR 201 to EUR 830, depending on the case, for the processing of an application for long-term resident status as disproportionate by comparison with the sum of EUR 30 which EU citizens are required to pay for a residence permit. Such a procedure cannot, therefore, be regarded as ‘fair’. In the Commission’s view, irrespective of whether they constitute payment for actual costs arising, such high charges can be ‘a means of hindering the exercise of the right of residence’ within the meaning of recital 10 in the preamble to the directive, and thus have a deterrent effect on third-country nationals wishing to avail themselves of the rights afforded to them by the directive. Moreover, this is supported by the fact that the Commission is receiving complaints in that respect from citizens.

(1) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).