ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 46/5

Appeal brought on 26 November 2010 by Lagardère SCA against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2010 in Case T-452/04 Editions Jacob v European Commission

(Case C-554/10 P)

2011/C 46/08

Language of the case: French

Parties

Appellant: Lagardère SCA (represented by: A. Winckler, F. de Bure et J.-B. Pinçon, avocats)

Other parties to the proceedings: Éditions Odile Jacob SAS, European Commission, Wendel Investissement SA

Form of order sought

— set aside the judgment of 13 September 2010 in Case T-452/04 in so far as that judgement annulled the European Commission's Decision of 30 July 2004 approving Wendel Investissement as purchaser of the assets sold in merger control procedure No COMP/M.2978 — Lagardère/Natexis/VUP;

— dismiss Odile Jacob's action brought before the General Court against that decision;

— order Odile Jacob to pay all the costs of these proceedings, both at first instance and in this appeal.

Pleas in law and main arguments

The appellant puts forward two grounds in support of its appeal.

By its first ground of appeal, Lagardère alleges that the General Court erred in law by relying on the unlawfulness of the decision approving the trustee as a basis for annulling the approval decision.

By its second ground of appeal, which contains four parts, the appellant submits that the General Court erred in law in holding that the presence of the trustee's representative on the executive board of Editis as an independent third party could justify the annulment of the approval decision. That flows from the misinterpretation of certain facts, manifest failures to state reasons and several errors of law: the General Court thus erred in law by interpreting incorrectly the concept of independence (first part); the General Court failed to show in its statement of reasons how the links between the trustee's representative and Editis could have vitiated the content of the report submitted by the trustee to the Commission (second part); the General Court misinterpreted the facts and vitiated the judgment under appeal by a manifest failure to state reasons in finding that the trustee's report had exercised a ‘decisive influence’ on the approval decision (third part) and, lastly, the General Court erred in annulling the approval decision without showing how that decision would have differed in content in the absence of the alleged irregularities (fourth part).
1.

Where a taxable person (‘Trader A’) sells phone cards representing the right to receive telecommunications services from that person, is Article 2(1) of the Sixth VAT Directive (1) to be interpreted so as to mean that Trader A makes two supplies for VAT purposes: one at the time of the initial sale of the phone card by Trader A to another taxable person (‘Trader B’) and one at the time of its redemption (i.e. its use by a person — ‘the End User’ — to make telephone calls)?
1.

Must the definition of ‘plans and programmes’ in Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (1) be interpreted as excluding from the scope of that directive a procedure for the total or partial repeal of a plan such as that applicable to a ‘plan particulier d’affectation du sol’ (specific land-use plan), provided for in Articles 58 to 63 of the Code bruxellois de l’Aménagement du Territoire (Brussels Town and Country Planning Code)?
EN Official Journal of the European Union C 46/3

Appeal brought on 24 November 2010 by the Kingdom of the Netherlands against the judgment delivered by the General Court( Seventh Chamber) on 9 September 2010 in Case T-348/07 Stichting Al-Aqsa v Council of the European Union

(Case C-550/10 P)

2011/C 46/05

Language of the case: Dutch

Parties

Appellant: Kingdom of the Netherlands (represented by: C.M. Wissels and M. Noort, Agents)

Other parties to the proceedings: Stichting Al-Aqsa, Council of the European Union, European Commission

Form of order sought

— set aside the judgment under appeal in Case T-348/07 and refer the case back to the General Court; and

— order the other party to the proceedings to pay the costs.

Pleas in law and main arguments

The General Court misinterpreted Article 1(4) and (6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001 (1) in finding that the order of the court hearing the application for interim measures could no longer, following the repeal of the Sanctieregeling terrorisme 2003 (2003 Netherlands regulation on sanctions for the suppression of terrorism), serve as a basis for placing Al-Aqsa on the EU asset-freezing list.

(1) Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).
1.

In the light inter alia of the stipulations of Article 5(2) of Regulation No 343/2003 (1) and/or the absence of provisions in the regulation on the cessation of a Member State’s responsibility to examine an asylum application other than those contained in the second subparagraph of Article 4(5) and Article 16(3) and (4), is Regulation No 343/2003 to be interpreted as meaning that the withdrawal of an asylum application does not affect the possibility of applying the regulation?
EN Official Journal of the European Union C 72/10

Appeal brought on 16 December 2010 by the United Kingdom of Great Britain and Northern Ireland against the judgment of the General Court (Seventh Chamber) delivered on 30 September 2010 in Case T-85/09: Yassin Abdullah Kadi v European Commission

(Case C-595/10 P)

2011/C 72/17

Language of the case: English

Parties

Appellant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson, Agent, D. Beard and M. Wood, Barristers)

Other parties to the proceedings: Yassin Abdullah Kadi, European Commission, Council of the European Union, French Republic

Form of order sought

The appellant claims that the Court should:

— Set aside, in whole, the decision of the General Court in case T-85/09;

— Dismiss the application of Mr Yassin Abdullah Kadi for annulment of Regulation 881/2002 (1) insofar as it concerns him;

— Order Mr Yassin Abdullah Kadi to bear the costs of the United Kingdom in the proceedings before the Court.

Pleas in law and main arguments

The conclusion of the General Court that full judicial review is appropriate for EU measures faithfully implementing United Nations Security Council resolutions is contrary to the terms of the EU Treaties and the case law of the EU Courts. It is directly at odds with the history and purpose of the EU and, in particular, the development of common foreign and security policy competence.

The United Nations Charter requires compliance with its obligations by its Member States. Such obligations prevail over the obligations which may arise under any other international agreement. Such obligations include those imposed under Security Council resolutions intended to combat international terrorism.

Having regard, in particular, to Articles 3(5) and 21 TEU and Article 351 TFEU, the obligation upon EU Member States to comply with the decisions of the Security Council prevails over any obligations which may arise under the EU Treaties.

The EU must consider itself bound by the terms of the UN Charter and the UN Security Council decisions made under it.

It is inconsistent with the binding effect of UN Security Council decisions for the judicature of the Union to engage in a full review of the EU measures that seek to implement the Security Council decisions.

To the extent that any review of EU measures faithfully implementing Security Council resolutions is appropriate, the Union judicature must pay due regard to the nature and purpose of the United Nations Charter and the role of the Security Council as the principal body charged with ensuring international peace and security. Given the nature of the Security Council and the important role which it fulfils, having regard to the creation and operation of the Office of Ombudsperson, and taking due account of the summary of reasons provided to the Commission and Mr Yassin Abdullah Kadi, there is no reason to annul Regulation 881/2002 so far as it concerns Mr Yassin Abdullah Kadi.

(1) OJ L 139, p. 9
3.

To what extent must Article 22(1) of Directive 2008/48 be interpreted as meaning that it introduces the maximum level of harmonisation in the field of consumer credit agreements, which precludes the Member States from: 3.1. extending the scope of the provisions in Directive 2008/48 to agreements expressly excluded from the scope of the Directive (such as mortgage loan agreements or agreements concerning the right of ownership in immovable property); or 3.2. introducing additional obligations for credit institutions as regards the types of charges they may impose or the categories of reference indices to which the variable interest rate may refer in consumer credit agreements falling within the scope of the national implementing provision? If the third question is answered in the negative, to what extent must the principles of freedom to provide services and the free movement of capital in general, and Articles 56, 58 and 63(1) of the Treaty on the Functioning of the European Union (TFEU) in particular, be interpreted as precluding a Member State from imposing measures on credit institutions prohibiting in consumer credit agreements the application of bank charges not included in the list of permitted charges, unless such charges are defined in the legislation of the State concerned?
EN Official Journal of the European Union C 139/12

Action brought on 22 November 2010 — Transportes y Excavaciones J. Asensi S.L. v Kingdom of Spain

(Case C-540/10)

2011/C 139/20

Language of the case: Spanish

Parties

Applicant: Transportes y Excavaciones J. Asensi S.L. (represented by: C. Nicolau Castellanos, abogado)

Defendant: Kingdom of Spain

By order of 10 March 2011 the Court of Justice (Eighth Chamber) declared that it is clear that the Court has no jurisdiction to take cognisance of the action.
3.

Is the regulation to be interpreted as meaning that an air carrier may be exempted from liability under Article 5(3) in extraordinary circumstances not only with respect to a flight which it cancelled, but also with respect to passengers on later flights, on the ground that by its actions it attempted to spread the negative effects of the extraordinary circumstances it encountered in its operations, such as a strike, among a wider class of passengers than the cancelled flight’s passengers by rescheduling its later flights so that no passenger’s journey was unreasonably delayed? In other words, may an air carrier rely on extraordinary circumstances also with respect to a passenger on a later flight whose journey was not directly affected by that factor? Does it make a significant difference whether the passenger’s situation and right to compensation are assessed in accordance with Article 4 on denied boarding or with Article 5 on flight cancellation?
2.

If so, is the establishment of a specific deductible proportion of the value added tax paid by taxable persons carrying out taxable transactions only, albeit by actual use, based on non-taxable subsidies to that sector (‘inputs’), under Article 23, compatible with Article 17(2) and (5) and Article 19 of that Directive?
3.

If question 1 is answered in the affirmative, is the obligation under Article 18(1) of that regulation on the persons who arrange the shipments to disclose the name of the waste producer or waste collector to the consignee of the waste by means of the document set out in Annex VII limited by Article 18(4) in order to protect business secrets?
2.

If a party raises an issue in proceedings which falls within the subject matter of Article 22(2) of the Brussels I Regulation, such as an issue as to the validity of the decision of an organ of a company or other legal person, does it necessarily follow that that issue forms the object of the proceedings and that the proceedings are principally concerned with that issue if that issue may be potentially dispositive of the proceedings, irrespective of the nature and number of other issues raised in the proceedings and of whether all or some of those issues are also potentially dispositive?
2.

the possibility of a sentence of up to four years’ imprisonment being imposed in respect of a simple failure to cooperate in the deportation procedure on the part of the person concerned, in particular where the first removal order issued by the administrative authorities has not been complied with?
2.

In the event that the levy is found to be compatible with Article 13 of Directive 2002/20/EC, do the conditions in accordance with which the fee is required under the contested local regulation satisfy the requirements of objectivity, proportionality and non-discrimination laid down in that provision, together with the need to ensure the optimal use of the resources concerned?
6.

If Article 173 of Directive 2006/112 must be interpreted as meaning that the adjustment envisaged also applies to cases in which, following their acquisition, goods and services are used initially for an activity which is not taxed or not used at all but subsequently are included in the taxable activity of the taxable person, in the light of the restriction established by Article 70(1)(2) of the Law on VAT and the fact that, pursuant to Article 79(1) and (2) of the Law on VAT, adjustments may be made only in cases in which goods whose initial use satisfies the requirement for deduction of input tax are subsequently included in a use which does not satisfy those requirements, must it be presumed that the Member State has satisfied its obligation, in relation to all taxable persons, to structure the right of deduction as soundly and fairly as possible?
2.

Can Article 2(2)(B) of Directive 2008/115/EC be construed as excluding from the scope of the guarantees laid down in that directive deportation by way of alternative penalty, as provided for in Article 16(1) of Legislative Decree No 286 of 25 July 1998, for the crime consisting in the mere act of entering, or of remaining in, the national territory, as laid down in Article 10a of Legislative Decree No 286 of 25 July 1998?
EN Official Journal of the European Union C 152/15

Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 10 March 2011 — Inno NV v Unie van Zelfstandige Ondernemers VZW (UNIZO), Organisatie voor de Zelfstandige Modedetailhandel VZW (Mode Unie), Couture Albert BVBA

(Case C-126/11)

2011/C 152/26

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: Inno NV

Defendant: Unie van Zelfstandige Ondernemers VZW (UNIZO), Organisatie voor de Zelfstandige Modedetailhandel VZW (Mode Unie), Couture Albert BVBA

Question referred

Must Directive 2005/29 (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22), and in particular Articles 1, 2(d), 3(1) and 5 thereof, be interpreted so that those articles are incompatible with national legislation such as the first and third paragraphs of Article 53(1) of the Wet van 14 juli 1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument (Law of 14 July 1991 on commercial practices and consumer information and protection), which, for the sectors mentioned in Article 52(1) of that Law, prohibits traders, during the restricted periods of 15 November to 2 January and 15 May to 30 June, and regardless of the place or the means of communication used, from making announcements of price reductions, as well as announcements suggestive of a price reduction, as referred to in Article 42 of that Law, and also from making announcements and suggestions of price reductions before the commencement of a restricted period which would take effect during that restricted period, even though the measure concerned, despite the dual objective put forward by the national legislature, namely, on the one hand, the protection of the interests of consumers and, on the other hand, the regulation of the competitive relations between traders, in reality serves to regulate the competitive relations between traders and, considering the other guarantees provided by the legislation, does not contribute effectively to consumer protection?

(1) OJ 2005 L 149, p. 22.
2.

Does Clause 4 preclude a socially useful worker or a publicly useful worker from receiving less remuneration than a permanent worker who carries out the same duties and has the same length of service solely because his employment relationship was initiated on the terms described above, or does this constitute an objective reason justifying less favourable treatment in terms of pay?
EN Official Journal of the European Union C 160/12

Action brought on 25 March 2011 — European Commission v French Republic

(Case C-145/11)

2011/C 160/14

Language of the case: French

Parties

Applicant: European Commission (represented by: M. Šimerdová and A. Marghelis, Agents)

Defendant: French Republic

Form of order sought

— declare that, by refusing to approve two applications for marketing authorisations of the veterinary medicinal products CT-Line 15 % Premix and CT-Line 15 % Oral Powder in the context of the decentralised procedure laid down by Directive 2001/82/EC on the Community code relating to veterinary medicinal products, (1) the French Republic has failed to fulfil its obligations under Articles 32 and 33 of that directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By the present action, the Commission submits that the abovementioned Directive 2001/82/EC does not allow a Member State, in the context of the decentralised procedure, to carry out a legal and scientific assessment of an application for authorisation. The purpose of the validation phase is merely to verify if the dossier submitted is identical in all the Member States, if it is complete, and if it includes the list of Member States concerned, in accordance with the conditions laid down in Article 32(1) of the directive. The applicant thus criticises the defendant for refusing applications for authorisation by relying inter alia on grounds concerning the composition of the medicinal product and its pharmaceutical form, its alleged non-compliance with national law and the possible dangers to public health.

The Commission also points out that, at the validation stage, the Member States affected by an application for authorisation have the obligation to approve the assessment report submitted by the reference Member State, unless they invoke a serious potential risk to human or animal health or the environment, in compliance with Article 33 of the directive. The French authorities therefore failed to follow the procedure laid down by that article.

(1) 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 2001 L 311, p. 1).
EN Official Journal of the European Union C 186/16

Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

(Case C-198/11 P)

2011/C 186/28

Language of the case: Spanish

Parties

Appellant: Lan Airlines S.A. (represented by: E. Armijo Chávarri, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

Form of order sought

— Set aside the judgment of the General Court of 8 February 2011 in its entirety.

— Deliver a new judgment on the substance of the case (the opposition brought by LAN Airlines, S.A. against Air Nostrum’s Community trade mark application for the word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM) or refer the case back to the General Court for judgment.

— In any event, order OHIM to pay the costs.

Pleas in law and main arguments

Error in the General Court’s interpretation of Article 8(1)(b) of Regulation No 40/94 (1) (now Regulation No 207/09) (2)

The appeal alleges infringement by the judgment under appeal of the case-law that states that the global assessment of the likelihood of confusion must be based, in relation to the visual, aural or conceptual similarity of the signs at issue, on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components when those components by themselves dominate the image of the composite mark.

The appellant submits that the General Court did not take into account the relevant elements of the case (essentially the particular features of the sector, the nature of the Community trade mark application and the criterion of the perception of the relevant consumer) when it evaluated the actual effect of the ‘LAM’ element, incorporated in the contested trade mark application, on the average Spanish consumer’s perception of the mark.

The appellant submits that the correct assessment of the circumstances of the case should have led the General Court to recognise that the contested trade mark application would be perceived, first and foremost, in light of the ‘LAM’ acronym and to compare that trade mark application with the appellant’s marks by reference to that element.

The premiss upon which the appeal is brought is that if the General Court had recognised that point, it would have appreciated that there was a likelihood of confusion between the LÍNEAS AÉREAS DEL MEDITERRÁNEO Community trade mark application and the appellant’s LAN trade marks.

(1) Council Regulation of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2) Council Regulation of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 179/11

Reference for a preliminary ruling from the Bundeskommunikationssenat (Austria) lodged on 4 April 2011 — Publikumsrat des Österreichischen Rundfunks v Österreichischer Rundfunk

(Case C-162/11)

2011/C 179/20

Language of the case: German

Referring court

Bundeskommunikationssenat

Parties to the main proceedings

Applicant: Publikumsrat des Österreichischen Rundfunks

Defendant: Österreichischer Rundfunk

Question referred

Are Articles 1(c), 10, 11 and 18(3) of Council Directive 89/552/EEC of 3 October 1989 (1) on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 19 June 1997 amending Directive 89/552 (2) to be interpreted as meaning that announcements of any kind made by a television broadcaster in its programmes and broadcasts and relating to its own (free-to-air) programmes and broadcasts are covered by the term ‘television advertising’ (Article 1(c)), and are, inter alia, the provisions on separation between editorial content and advertising and the recognisable nature of advertising in Article 10 and on the insertion of advertising in Article 11 consequently also applicable to such announcements?

(1) OJ 1989 L 298, p. 23.

(2) OJ 1989 L 202, p. 60.
1.

Does a passenger have a right to payment of compensation under Article 7 of Regulation No 261/2004 (1) in the case where the flight, following its departure according to schedule, is discontinued and the aircraft, before arriving at the airport of destination, returns to the airport of departure and subsequently takes off again with a delay which is relevant for payment of compensation?