ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 102/26

Appeal brought on 13 February 2014 by the European Commission against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2013 in Case T-117/12 ANKO v Commission

(Case C-78/14 P)

2014/C 102/36

Language of the case: Greek

Parties

Appellant: European Commission (represented by: D. Triantafyllou and B. Conte)

Other party to the proceedings: ANKO AE Antiprosopeion, Emporiou kai Viomichanias

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court;

— order the respondent to pay the costs.

Grounds of appeal and main arguments

The Commission concluded, with two separate consortiums of which the respondent ΑΝΚΟ was a member, agreements for the granting of funding for the ‘OASIS’ and ‘PERFORM’ projects within the framework of the European Community’s Seventh Framework Programme for research, technological development and demonstration activities.

In the context of the agreement at issue, the Commission claims that the General Court misinterpreted the general terms of the agreement and in particular paragraph (3)(d) of Section II.5 (and incidentally Section ΙΙ.14, second subparagraph of paragraph (1)).

The misinterpretation of the general terms of the agreement can be broken down into the following particular grounds of appeal:

1. An erroneous assessment of the serious and systematic nature of the irregularities as a ground for suspension;

2. An erroneous assessment of the possibility/risk of repetition of the irregularities;

3. An erroneous inference from the ad hoc adjustment;

4. Misinterpretation of the option to use average costs and erroneous extension to use of fictitious costs — distortion of the evidence;
2.

If the answer to Question 1 is in the affirmative, in the assessment as to whether the effective tax burden for a non-resident is heavier than the tax burden for a resident, should a comparison be made between the Netherlands dividend tax withheld in respect of the non-resident and the Netherlands income tax payable by a resident, calculated in respect of the flat-rate income which, in the year in which the dividends were received, is attributable to the total holding of investment shares in Netherlands companies, or does European Union law require that a different standard of comparison be taken into account? Must the tax-free capital allowance which applies to residents also be taken into account when making that comparison, and, if so, to what extent (see the judgment of the Court of Justice of 17 October 2013 in Case C-181/12 Welte, V-N 2013/51.20.1)?
EN Official Journal of the European Union C 112/24

Request for a preliminary ruling from the Landgericht Duisburg (Germany) lodged on 20 January 2014 — Elfriede Stermann, Hans Gerd Stermann v Zurich Deutscher Herold Lebensversicherung AG

(Case C-27/14)

2014/C 112/30

Language of the case: German

Referring court

Landgericht Duisburg

Parties to the main proceedings

Applicants: Elfriede Stermann, Hans Gerd Stermann

Defendant: Zurich Deutscher Herold Lebensversicherung AG

This Case was removed from the Register of the Court by Order of the Court of 14 February 2014.
3.

Does the principle of effective judicial protection of the rights that individuals derive from EU law, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, preclude a provision of national law, such as that laid down in Article 120 of Emergency Decree No 99 of December 2006 on credit institutions and capital adequacy, which recognises the enforceability of a bank credit agreement concluded by private agreement and without allowing the terms thereof to be negotiated with the debtor, under which, with brief verification and after obtaining authorisation for enforcement in a non-contentious procedure, and with limited scope for the court to assess the amount of the debt, a bailiff may seize the debtor’s assets
EN Official Journal of the European Union C 135/26

Action brought on 10 March 2014 – European Commission v Kingdom of Sweden

(Case C-114/14)

2014/C 135/31

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: J. Enegren and L. Lozano Palacios, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

— Declare that, by failing to exempt postal services supplied by the public postal services and the supply of goods incidental thereto from value added tax and by failing to exempt the supply at face value of postage stamps valid for use for postal services within the country from value added tax, the Kingdom of Sweden has failed to fulfil its obligations under Articles 132(1)(a) and 135(1)(h) of Council Directive 2006/112/EC of the European Parliament and of the Council of 28 November 2006 on the common system of value added tax. (1)

— order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The European Commission has brought an action against the Kingdom of Sweden under Article 258 TFEU on the following grounds.

Article 132(1)(a) of Directive 2006/112 states that the Member States are to exempt the supply by the public postal services of services and the supply of goods incidental thereto from liability for tax.

Article 135(1)(h) of Directive 2006/112 provides that the Member States are to exempt the supply at face value of postage stamps valid for use for postal services from liability for tax.

The Kingdom of Sweden has instructed Posten AB to supply the universal services involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users in accordance with Article 3 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service. (2)

The Commission is of the opinion that Posten AB, by supplying the universal services described in Article 3 of Directive 97/67, constitutes a public postal service within the meaning of Article 132 of Directive 2006/112.

The Kingdom of Sweden has failed to exempt the postal services supplied by Posten AB and the supply at face value of postage stamps valid for use for postal services within the country from liability for tax.

(1) OJ 2006 L 347, p. 1.

(2) OJ 1998 L 15, p. 14.
1.

Does it follow from Annex IIB to Council Directive 1999/13/EC (1) of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations that the operator of installations for which a constant solid content of product can be assumed and used to define the reference point for emission reductions, where substitutes containing little or no solvent are still under development, must be given a time extension for the implementation of its reduction scheme, in derogation from the time frame set out in that annex?
8.

How should the expression ‘put … at a particular disadvantage’ within the meaning of Article 2(2)(b) of Directive 2000/43 be interpreted? Does it correspond to the expression ‘less favourable treatment’ used in Article 2(2)(a) of Directive 2000/43, or does it cover only particularly serious and obvious cases of unequal treatment? Does the practice described in the present case amount to particularly unfavourable treatment? If there has been no particularly serious and obvious case of putting someone in an unfavourable position, is that sufficient to conclude that there has been no indirect discrimination (without examining whether the practice in question is justified, appropriate and necessary in view of attaining a legitimate aim)?
1.

The judgment of the General Court is wrong in law and should be set aside because it disregards the fact that the respondent infringed fundamental procedural rights of the appellants, such as the right to a fair hearing, in the proceedings relating to the fines. By upholding the respondent’s assessment the General Court also acted in breach of the principle of proportionality and of the prohibition against the anticipatory assessment of evidence.
1.

Is national legislation under which employment contracts of indefinite duration to support entrepreneurs are made subject to a probationary period of one year, during which the employee may freely be dismissed, contrary to EU law, and is it compatible with the fundamental right guaranteed by Article 30 (1) of the [Charter of Fundamental Rights of the European Union]?
EN Official Journal of the European Union C 175/22

Action brought on 17 March 2014 — European Commission v Italian Republic

(Case C-124/14)

2014/C 175/27

Language of the case: Italian

Parties

Applicant: European Commission (represented by: C. Cattabriga and M. van Beek, acting as Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— declare that the Italian Republic, by withholding from National Health Service ‘executive’ staff (namely, doctors) the right to a maximum average working week of 48 hours, and from all National Health Service medical staff the right to 11 consecutive hours of rest per day without guaranteeing them an equivalent period of compensatory rest, has failed to fulfil its obligations under Articles 3, 6 and 17(2) of Directive 2003/88/EC; (1)

— order the Italian Republic to pay the costs of the proceedings.

Pleas in law and main arguments

Articles 3 and 6 of Directive 2003/88/EC require that the Member States take the measures necessary to ensure, first, that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period and, second, that the average working time for each seven-day period, including overtime, does not exceed 48 hours. Derogations from those provisions, although not entirely excluded, are nonetheless subject to specific conditions.

When transposing Directive 2003/88, the Italian legislature breached those provisions by excluding all National Health Service ‘executive’ doctors from the scope of the rules relating to the maximum weekly working time and all National Health Service medical staff from the rules relating to the daily rest period.

In particular, the Commission claims that, in the first place, in Italy all doctors who work in the National Health Service are officially classified as ‘executives’ by legislation and by national collective agreements relating to the National Health Service, without necessarily benefitting from executive prerogatives or autonomy over their own working time. In the second place, the Italian authorities have not been able to show that National Health Service medical staff, although excluded from the right to a daily rest period of 11 consecutive hours, none the less benefit from an adequate period of uninterrupted compensatory rest immediately after their period of work has ended.

(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 175/25

Action brought on 21 March — European Commission v Council of the European Union

(Case C-133/14)

2014/C 175/31

Language of the case: French

Parties

Applicant: European Commission (represented by: R. Lyal, W. Mölls, and D. Martin, acting as Agents)

Defendant: Council of the European Union

Form of order sought

— Annul Council Directive 2013/64/EU of 17 December 2013 amending Council Directives 91/271/EEC and 1999/74/EC, and Directives 2000/60/EC, 2006/7/EC, 2006/25/EC and 2011/24/EU of the European Parliament and of the Council, following the amendment of the status of Mayotte with regard to the European Union (1);

— Maintain the effects of Directive 2013/64/EU until such time as a new directive founded on an appropriate legal basis enters into effect;

— Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The Commission seeks the annulment of Directive 2013/64/EU, which the Council adopted on the legal basis of Article 349 TFEU.

The Commission alleges that the Council adopted that directive when it had proposed to base that act on a sectoral legal basis, namely Articles 43(2), 114, 153(2), 168 and 192(1) TFEU.

It considers that, in accordance with the purpose and aim of the contested directive, Article 349 TFEU cannot validly be used as a legal basis. Article 349 TFEU only applies when derogating from the principle of the application of primary law to the outermost regions, as established in Article 355(1) TFEU. However, the directive in question, if it is not to derogate from the Treaties, only adapts the secondary law in order to respond to the situation created by the change in status of Mayotte. That interpretation is supported not only by the wording of Article 349 TFEU, but also by the system of legal bases of the Treaty, and by the historical origins of that article.

(1) OJ 2013 L 355, p. 8.
EN Official Journal of the European Union C 194/12

Request for a preliminary ruling from the Hof van beroep te Brussel (Belgium) lodged on 28 March 2014 — Loutfi Management Propriété Intellectuelle SARL v AMJ Meatproducts NV, Halalsupply NV

(Case C-147/14)

2014/C 194/15

Language of the case: Dutch

Referring court

Hof van beroep te Brussel

Parties to the main proceedings

Appellant: Loutfi Management Propriété Intellectuelle SARL

Respondents: AMJ Meatproducts NV, Halalsupply NV

Question referred

In view of, inter alia, Articles 21 and 22 of the Charter of Fundamental Rights of the European Union, (1) must Article 9(1)(b) of Council Regulation (EC) No 207/2009 (2) of 26 February 2009 on the Community trade mark be interpreted as meaning that, in the assessment of the likelihood of confusion between a Community trade mark in which an Arabic word is dominant and a sign in which a different, but visually similar, Arabic word is dominant, the difference in pronunciation and meaning between those words may, or even must, be examined and taken into account by the competent courts of the Member States, even though Arabic is not an official language of the European Union or of the Member States?

(1) OJ 2000 C 364, p. 1.

(2) OJ 2009 L 78, p. 1.
EN Official Journal of the European Union C 184/11

Action brought on 7 March 2014 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-112/14)

2014/C 184/14

Language of the case: English

Parties

Applicant: European Commission (represented by: R. Lyal, L. Armati, agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

— declare that by adopting and maintaining tax legislation concerning attribution of gains to members of non-resident companies which provides for a difference in treatment between domestic and cross-border activities, the United Kingdom has failed to fulfil its obligations under Article 63 TFEU and Article 40 EEA or, in the alternative, Article 49 TFEU and Article 31 EEA;

— order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The national legislation in issue

Section 13 of the Taxation of Chargeable Gains Act 1992 provides that where certain types of non-resident company earn profits, those profits are immediately taxable in the hands of shareholders and other participators who are residents of the United Kingdom, whether or not the latter in fact receive any income.

The main argument

UK residents are liable for tax on the profits of certain non-resident companies in which they are participators, while would not be so liable if the companies concerned were resident in the United Kingdom. That difference in taxation is likely to discourage UK taxpayers from investing in such non-resident companies, contrary to Article 63 TFEU and Article 40 EEA.

The measure in issue may prevent certain types of tax avoidance and abuse. However, its application is not limited to hypotheses of tax avoidance or abuse and the measure is therefore not justified.
2.

If the answer to Question 1 is in the affirmative, does the principle of legal certainty preclude national practice on the basis of which the tax authority has established retroactively that a taxable person is liable to pay VAT because the supply of veterinary services is not exempt from VAT and the tax exemption threshold was exceeded, in a situation in which: — the tax authority did not, of its own motion, register the taxable person for VAT purposes and did not find that person liable to pay VAT from the moment when the taxable person submitted the tax declarations showing that the threshold had been exceeded, but did so later, after the Detailed Rules for the Implementation of the Tax Code had been amended by Government Decree No 1620/2009 to the effect that the exemption provided for under Article 141(1)(a) of the Tax Code does not apply to the supply of veterinary services, as established by the Court of Justice in Case 122/87 Commission v Italy EU:C:1988:256, and in relation to a period preceding that amendment; — through the tax declarations submitted by the taxable person, the tax authority had become aware, before the Detailed Rules for the Implementation of the Tax Code were amended by Government Decree No 1620/2009 in the manner described above, that the exemption threshold had been exceeded; — before the publication of Government Decree No 1620/2009, the tax authority did not adopt in its area of competence — which also covers the taxable person in the main proceedings — any administrative tax measures designed to establish that taxable persons which are veterinary practices had failed to register for the purposes of VAT incurred as a consequence of the VAT payment exemption threshold being exceeded and, consequently, intended to establish the liability of those persons for VAT; — during the period preceding the adoption and entry into force of Government Decree No 1620/2009, the judgment of the Court of Justice in Case 122/87 Commission v Italy EU:C:1988:256 had not been published in any form in the Romanian language?
1.

Is the permissibility of the Finnish system of beverage packaging duty, under which beverage packaging duty is levied if the packaging is not part of a return system, to be examined in the light of Article 110 TFEU instead of Article 34 TFEU? The return system in question must be a deposit-based system under which the packer of the alcoholic beverages or the importer alone or in accordance with the provisions laid down in the Law on Waste or in the corresponding legislation of the Åland Islands takes care of the reuse or recycling of beverage packagings so that the packaging is refilled or recovered as raw material.
1.

Where marriage involving EU and non-EU citizens ends in divorce obtained following departure of the EU citizen from a host Member State where EU rights were exercised by the EU citizen, and where Articles 7 and 13(2)(a) of Council Directive 2004/38/EC (1) apply, does the non-EU citizen retain a right of residence in the host Member State thereafter? If the answer is ‘no’, does the non-EU citizen have a right of residence in the host Member State during the period before divorce following departure of the EU citizen from the host Member State?
4)

Finally, is it necessary, for the purposes of Article 16 of Regulation 1393/2007, to take into account the fact that the cooperation has cross-border implications and is necessary for the proper functioning of the internal market? When must it be understood that cooperation has ‘cross-border implications and is necessary to the proper functioning of the internal market’?
1.

Is Article 2(1) of the VAT Directive (1) to be interpreted as meaning that transactions in the form of what has been designated as the exchange of virtual currency for traditional currency and vice versa, which is effected for consideration added by the supplier when the exchange rates are determined, constitute the supply of a service effected for consideration?
2)

In the alternative, should the reply to the above questions confirm that credit institutions may adopt due diligence measures and enhanced due diligence measures in relation to payment institutions: a) How far does the possibility that credit institutions may supervise the operations of payment institutions extend? Can they be deemed to be authorised under the provisions of Directive 2005/60/EC to supervise the due diligence procedures and measures adopted in turn by payment institutions or does that power belong exclusively to the public institutions referred to in Directive 2007/64/EC (2), in the present case, the Banco de España (Bank of Spain)? b) Does the application of that right of credit institutions to adopt measures require any special justification that may be deduced from the acts of the payment institution or may those measures instead be adopted generally, simply on account of the fact that the payment institution carries out a risky activity such as the sending of remittances abroad? c) If it is held that a specific justification is required in order for credit institutions to be able to adopt due diligence measures in relation to payment institutions: i. What is the relevant conduct that a bank must bear in mind for the purposes of adopting due diligence measures? ii. Can a credit institution be considered authorised to assess, for that purpose, the due diligence measures which a payment institution applies in its procedures? iii. Does the fact that a bank may have identified in a payment institution’s operations conduct leading it to suspect collaboration in money-laundering activities or in terrorist financing require the exercise of that power?
EN Official Journal of the European Union C 261/16

Request for a preliminary ruling from the Cour de cassation (France) lodged on 11 June 2014 — Directeur général des douanes et droits indirects, Directeur régional des douanes et droits indirects d’Auvergne v Brasserie Bouquet SA

(Case C-285/14)

2014/C 261/23

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellants: Directeur général des douanes et droits indirects, Directeur régional des douanes et droits indirects d’Auvergne

Respondent: Brasserie Bouquet SA

Question referred

Must Article 4(2) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (1) be interpreted as meaning that the term ‘operate under licence’ refers exclusively to operation under a licence to exploit a patent or trade mark, or can that provision be interpreted as meaning that the term ‘operate under licence’ refers to operation in accordance with a production process belonging to a third party and authorised by that party?

(1) OJ L 316, p. 21.
2.

If the answer to question 1 is affirmative and if the party affected by the application to challenge the act has relied on a provision of the law within the meaning of the first indent of Article 13, according to which the payment of a due debt may be challenged only in the circumstances provided for therein, which are not mentioned in the action based on the law of the State in which the insolvency proceedings are taking place, (i) are there reasons prohibiting an interpretation of Article 13 to the effect that the party seeking to challenge the act must, after becoming aware of that legal provision, plead those circumstances if, in accordance with the national law of the State of the opening of insolvency proceedings, that party has to plead all the circumstances founding the action to challenge the act, or (ii) must the party affected by action to challenge the act show that those circumstances did not exist and that therefore it is not possible to challenge the act under the provision in question, and the party seeking to challenge it does not need to rely specifically on those circumstances?