ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 44/17

Judgment of the Court (Fourth Chamber) of 22 December 2008 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Krakowie — Republic of Poland) — Magoora sp. zoo v Dyrektor Izby Skarbowej w Krakowie

(Case C-414/07) (1)

(Sixth VAT Directive - Article 17(2) and (6) - National legislation - Deduction of VAT on the purchase of fuel for certain vehicles irrespective of the purpose for which they are used - Effective restriction on deductions - Exclusions laid down by national law when the directive entered into force)

(2009/C 44/27)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Krakowie

Parties to the main proceedings

Applicant: Magoora sp. zoo

Defendant: Dyrektor Izby Skarbowej w Krakowie

Re:

Reference for a preliminary ruling — Wojewódzki Sąd Administracyjny w Krakowie — Interpretation of Article 17(2) and (6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — National rules excluding the right to deduct tax on purchases of fuel for certain vehicles irrespective of the purpose (business or private) for which the vehicle concerned is used — Amendment of the criteria governing vehicles covered by the exclusion, resulting in a de facto restriction of the scope of the right to deduct in comparison with the period before Directive 77/388 entered into force in the Member State concerned

Operative part of the judgment

The second subparagraph of Article 17(6) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment precludes a Member State from repealing in their entirety, when that directive is transposed into national law, national provisions concerning restrictions on the right to deduct input tax on purchases of fuel for vehicles used for a taxable activity, by replacing, on the date on which that directive entered into force on its territory, those provisions by provisions laying down new criteria in that regard, if — which is for the national court to determine — the latter provisions have the effect of extending the scope of those restrictions. It precludes, in any event, a Member State from subsequently amending its legislation which entered into force on that date, so as to extend the scope of those restrictions as compared with the situation existing prior to that date.

(1) OJ C 269, 10.11.2007.
EN Official Journal of the European Union C 82/3

Judgment of the Court (Second Chamber) of 12 February 2009 — Commission of the European Communities v Hellenic Republic

(Case C-45/07) (1)

(Failure of a Member State to fulfil obligations - Articles 10 EC, 71 EC and 80(2) EC - Maritime safety - Monitoring of ships and port facilities - International agreements - Division of powers between the Community and the Member States)

(2009/C 82/04)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: K. Simonsson, M. Konstantinidis, F. Hoffmeister and I. Zervas, Agents)

Defendant: Hellenic Republic (represented by: A. Samoni-Rantou and S. Chala, Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: I. Rao, Agent, and D. Anderson QC)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 10, 71 and 80(2) of the EC Treaty — Submission to an international organisation of a proposal which falls within a field covered by exclusive Community external competence — Maritime safety — Proposal for monitoring the compliance of ships and port facilities with the requirements of Chapter XI-2 of SOLAS and the ISPS Code

Operative part of the judgment

The Court:

1. Declares that, by submitting to the International Maritime Organisation (IMO) a proposal (MSC 80/5/11) for monitoring the compliance of ships and port facilities with the requirements of Chapter XI-2 of the International Convention for the Safety of Life at Sea, concluded in London on 1 November 1974, and the International Ship and Port Facility Security Code, the Hellenic Republic has failed to fulfil its obligations under Articles 10 EC, 71 EC and 80(2) EC.

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 82, 14.4.2007.
EN Official Journal of the European Union C 69/9

Judgment of the Court (Second Chamber) of 22 January 2009 (reference for a preliminary ruling from the Conseil d'État (France)) — Association nationale pour la protection des eaux et rivières — TOS, Association OABA v Ministère de l'écologie, du développement et de l'aménagement durables

(Case C-473/07) (1)

(Pollution and nuisance - Directive 96/61/EC - Annex I - Subheading 6.6(a) - Intensive rearing of poultry - Definition - Meaning of ‘poultry’ - Maximum number of animals per installation)

(2009/C 69/13)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: Association nationale pour la protection des eaux et rivières — TOS, Association OABA

Defendant: Ministère de l'écologie, du développement et de l'aménagement durables

Intervener: Association France Nature Environnement

Re:

Reference for a preliminary ruling — Conseil d'État (France) — Interpretation of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26) — Scope ratione materiae of the directive — Installations for the intensive rearing of poultry with more than 40 000 places (subject to an authorisation requirement) (subheading 6.6(a) of Annex I to the directive) — Concepts of ‘poultry’ and ‘places’ — Whether quail, partridge and pigeon are included within the scope of the directive — If so, whether national legislation which gives weighting to the number of animals per place according to species is permissible

Operative part of the judgment

1. The term ‘poultry’, which appears in subheading 6.6(a) of Annex I to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, must be interpreted as including quails, partridges and pigeons.

2. Subheading 6.6(a) of Annex I to Directive 96/61, as amended by Regulation No 1882/2003, precludes national legislation, such as that at issue in the main proceedings, which calculates the thresholds for authorisation of installations for intensive rearing on the basis of a system of ‘animal-equivalents’ founded on a weighting of animals by places according to species so that account may be taken of the amount of nitrogen actually excreted by the various bird species.

(1) OJ C 22, 26.1.2008.
EN Official Journal of the European Union C 113/4

Judgment of the Court (Second Chamber) of 26 March 2009 — Selex Sistemi Integrati SpA. v Commission of the European Communities, European Organisation for the Safety of Air Navigation (Eurocontrol)

(Case C-113/07 P) (1)

(Appeals - Competition - Article 82 EC - Concept of an ‘undertaking’ - Economic activity - International organisation - Abuse of a dominant position)

2009/C 113/06

Language of the case: Italian

Parties

Appellant: Selex Sistemi Integrati SpA (represented by: F. Sciaudone, R. Sciaudone and D. Fioretti, avvocati)

Other parties to the proceedings: Commission of the European Communities, European Organisation for the Safety of Air Navigation (Eurocontrol) (represented by: F. Montag and T. Wessely, Rechtsanwälte)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) delivered on 12 December 2006 in Case T-155/04 Selex Sistemi Integrati v Commission by which that Court dismissed an application for annulment or amendment of the Commission’s decision of 12 February 2004 rejecting the complaint lodged by Selex concerning an alleged infringement by Eurocontrol of the provisions of the EC Treaty relating to competition

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Selex Sistemi Integrati SpA to pay, in addition to its own costs, those incurred by the Commission of the European Communities and half the costs incurred by the European Organisation for the Safety of Air Navigation (Eurocontrol);

3. Orders the European Organisation for the Safety of Air Navigation to pay half its own costs.

(1) OJ C 117, 26.5.2007.
EN Official Journal of the European Union C 90/4

Judgment of the Court (Grand Chamber) of 17 February 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — M. Elgafaji, N. Elgafaji v Staatssecretaris van Justitie

(Case C-465/07) (1)

(Directive 2004/83/EC - Minimum standards for determining who qualifies for refugee status or for subsidiary protection status - Person eligible for subsidiary protection - Article 2(e) - Real risk of suffering serious harm - Article 15(c) - Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict - Proof)

2009/C 90/06

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: M. Elgafaji, N. Elgafaji

Defendant: Staatssecretaris van Justitie

Re:

Reference for a preliminary ruling — Nederlandse Raad van State — Interpretation of Articles 2(e) and 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted — Minimum standards in relation to the conditions governing the granting of refugee status — Level of protection equivalent to that of Article 3 of the European Convention on Human Rights or, in the event of non-equivalence, the criteria to be applied for the purpose of determining whether there are serious and individual threats by reason of indiscriminate violence

Operative part of the judgment

Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, in conjunction with Article 2(e) thereof, must be interpreted as meaning that:

— the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

— the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place — assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred — reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

(1) OJ C 8, 12.1.2008.
EN Official Journal of the European Union C 141/12

Judgment of the Court (First Chamber) of 2 April 2009 — Bouygues SA, Bouygues Télécom SA v Commission of the European Communities, French Republic, Orange France S.A., Société française du radiotéléphone — SFR

(Case C-431/07 P) (1)

(Appeals - State aid - Article 88(2) EC - Conditions for initiation of the formal investigation procedure - Serious difficulties - Criteria for establishing the existence of State aid - State resources - Principle of non-discrimination)

2009/C 141/18

Language of the case: French

Parties

Appellants: Bouygues SA, Bouygues Télécom SA (represented by: F. Sureau, D. Théophile, S. Perrotet, A. Bénabent, J. Vogel and L. Vogel, avocats,)

Other parties to the proceedings: Commission of the European Communities, (represented by: C. Giolito, Agent), French Republic (represented by: G. de Bergues, O. Christmann and A.L. Vendrolini, Agents), Orange France SA (represented by: S. Hautbourg, S. Quesson and L. Olza Moreno, avocats), Société française du radiotéléphone — SFR (represented by: A. Vincent, avocat and by C. Vajda QC)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 4 July 2007 in Case T-475/04 Bouygues and Bouygues Télécom v Commission in which the Court of First Instance dismissed the applicants’ action for annulment of the Commission Decision of 20 July 2004 (State Aid NN 42/2004 — France) concerning alteration of the fees payable by Orange and SFR for UMTS (Universal Mobile Telecommunication System) licences — State aid — Conditions for initiation of the formal investigation procedure under Article 88(2) EC — Criteria for State aid — Concepts of State resources, competitive advantage and non-discrimination.

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Bouygues SA and Bouygues Télécom SA to pay the costs;

3. Orders the French Republic to bear its own costs.

(1) OJ C 269, 10.11.2007.
EN Official Journal of the European Union C 141/2

Judgment of the Court (First Chamber) of 2 April 2009 — France Télécom SA v Commission of the European Communities

(Case C-202/07 P) (1)

(Appeals - Abuse of dominant position - Market for services in high-speed Internet access - Predatory pricing - Recoupment of losses - Right to align)

2009/C 141/03

Language of the case: French

Parties

Appellant: France Télécom SA (represented by: J. Philippe, H. Calvet, O.W. Brouwer, T. Janssens, lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: E. Gippini Fournier, Agent)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 30 January 2007 in Case T-340/03 France Télécom v Commission, in which the Court dismissed France Télécom’s appeal against the Commission Decision of 16 July 2003 relating to a proceeding under Article 82 EC (Case COMP/38.233 — Wanadoo Interactive) — Market for services in high-speed internet access (ADSL) — Abuse of a dominant position — Concept of predatory pricing, alignment of prices with those of competitors and recoupment of losses suffered

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders France Télécom SA to pay the costs.

(1) OJ C 170, 21.7.2007.
EN Official Journal of the European Union C 153/9

Judgment of the Court (Fourth Chamber) of 19 May 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Italy) — Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano

(Case C-538/07) (1)

(Directive 92/50/EEC - First paragraph of Article 29 - Public service contracts - National legislation not allowing companies linked by a relationship of control or significant influence to participate, as competing tenderers, in the same procedure for the award of a public contract)

2009/C 153/18

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Assitur Srl

Defendant: Camera di Commercio, Industria, Artigianato e Agricoltura di Milano

In the presence of: SDA Express Courier SpA, Poste Italiane SpA

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Lombardia — Interpretation of Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — National legislation precluding undertakings which are linked or controlled from participating individually in public procurement procedures for the supply of services

Operative part of the judgment

1. The first paragraph of Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts must be interpreted as not precluding a Member State from laying down, in addition to the grounds for exclusion contained in that provision, other grounds for exclusion intended to guarantee respect for the principles of equality of treatment and transparency, provided that such measures do not go beyond what is necessary to achieve that objective.

2. Community law precludes a national provision which, while pursuing legitimate objectives of equality of treatment of tenderers and transparency in procedures for the award of public contracts, lays down an absolute prohibition on simultaneous and competing participation in the same tendering procedure by undertakings linked by a relationship of control, without allowing them an opportunity to demonstrate that that relationship did not influence their conduct in the course of that tendering procedure.

(1) OJ C 37, 9.2.2008.
3.

Article 2(2) of Regulation No 2777/2000, as amended by Regulation No 111/2001, and Article 4 and Article 5(4), second subparagraph, of Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC, as amended and consolidated by Council Directive 96/43/EC of 26 June 1996, must be interpreted as not precluding Member States from charging national fees intended to finance the cost of testing for bovine spongiform encephalopathy. The total amount of the fees concerning the slaughter procedures for bovine animals intended for human consumption must be set in accordance with the principles adopted for Community fees, according to which that amount may not exceed the costs incurred, which cover salary and social-security costs and the administrative costs of carrying out those tests and any direct or indirect refund of such fees is prohibited.
EN Official Journal of the European Union C 180/8

Judgment of the Court (First Chamber) of 11 June 2009 (Reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH

(Case C-529/07) (1)

(Three-dimensional Community trade mark - Regulation (EC) No 40/94 - Article 51(1)(b) - Criteria relevant to determining whether an applicant is ‘acting in bad faith’ when filing an application for a Community trade mark)

2009/C 180/12

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Chocoladefabriken Lindt & Sprüngli AG

Defendant: Franz Hauswirth GmbH

Re:

Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 51(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) — Concept of the applicant for a mark ‘acting in bad faith’ — Trade mark application intended to prevent competitors from continuing to market similar goods which have previously acquired a certain reputation — Chocolate Easter bunnies.

Operative part of the judgment

In order to determine whether the applicant is acting in bad faith within the meaning of Article 51(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, the national court must take into consideration all the relevant factors specific to the particular case which pertained at the time of filing the application for registration of the sign as a Community trade mark, in particular:

— the fact that the applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product capable of being confused with the sign for which registration is sought;

— the applicant’s intention to prevent that third party from continuing to use such a sign; and

— the degree of legal protection enjoyed by the third party’s sign and by the sign for which registration is sought.

(1) OJ C 37, 9.2.2008.
1.

It follows from paragraph 101 of the judgment of 18 November 2003 in Case C-216/01 Budějovický Budvar that: — in order to determine whether a designation can be considered to constitute a simple and indirect indication of geographical provenance, protection of which under the bilateral instruments at issue is capable of being justified on the basis of the criteria laid down in Article 30 EC, the national court must ascertain whether, according to factual circumstances and perceptions prevailing in the Czech Republic, that designation, even if it is not in itself a geographical name, is at least capable of informing the consumer that the product bearing that indication comes from a particular place or region of that Member State; — the national court must, in addition, ascertain, once again in the light of factual circumstances and perceptions prevailing in the Czech Republic, whether, as stated in paragraph 99 of that judgment, the designation at issue in the main proceedings has not, either at the time of the entry into force of the bilateral instruments at issue in the main proceedings or subsequently, become generic in that Member State, the Court of Justice of the European Communities having already held, in paragraphs 99 and 100 of that judgment, that the aim of the system of protection introduced by those instruments falls within the sphere of the protection of industrial and commercial property within the meaning of Article 30 EC; — in the absence of any Community provision in that regard, it is for the national court to decide, in accordance with its own national law, whether a consumer survey should be commissioned for the purpose of clarifying the factual circumstances and perceptions prevailing in the Czech Republic in order to ascertain whether the designation ‘Bud’ at issue in the main proceedings can be classified as a simple and indirect indication of geographical provenance and has not become generic in that Member State. It is also in the light of that national law that the national court, if it finds it necessary to commission a consumer survey, must determine, for the purposes of making the necessary assessments, the percentage of consumers that would be sufficiently significant; and — Article 30 EC does not lay down specific requirements as to the quality and the duration of the use made of a designation in the Member State of origin for its protection to be justified in the light of that article. Whether such requirements apply in the context of the dispute in the main proceedings must be determined by the national court in the light of the applicable national law, in particular the system of protection laid down by the bilateral instruments at issue in the main proceedings.
1.

Declares that, by failing to lay down, in its national legislation, a general requirement that economic activities in which bodies governed by public law engage otherwise than in their capacity as a public authority are to be subject to value added tax; by failing to lay down, in its national legislation, either a general requirement that bodies governed by public law acting in their capacity as a public authority are to be subject to value added tax where their treatment as non-taxable persons gives rise to significant distortions of competition or any criterion providing a framework for the exercise, in that connection, of the Minister for Finance’s discretion, and by failing to lay down, in its national legislation, a general requirement that bodies governed by public law engaged in activities listed in Annex I to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax are to be subject to such tax, provided that those activities are not carried out on such a small scale as to be negligible, Ireland has failed to fulfil its obligations under Articles 2, 9 and 13 of the Directive.