ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 145/25

Appeal brought on 26 February 2016 by SNCF Mobilités (SNCF) against the judgment of the General Court (Seventh Chamber) delivered on 17 December 2015 in Case T-242/12 SNCF v Commission

(Case C-127/16 P)

(2016/C 145/32)

Language of the case: French

Parties

Appellant: SNCF Mobilités (SNCF) (represented by: P. Beurier, O. Billard, G. Fabre and V. Landes, avocats)

Other parties to the proceedings: European Commission, French Republic, Mory SA, in liquidation, Mory Team, in liquidation.

Form of order sought

The appellant claims that the Court should:

— declare the appeal admissible and well founded;

— set aside the judgment of the General Court of 17 December 2015 in Case T-242/12 Société nationale des chemins de fer français (SNCF) v Commission;

— order the Commission to pay all of the costs.

Grounds of appeal and main arguments

The appellant relies on several grounds in support of its appeal.

First, it submits, in distorting the provisions of Article 3(2) of the Sernam 2 decision relating to the en bloc disposal of Sernam’s assets, the General Court committed several errors of law and failed to comply with its obligation to state reasons.

Second, it submits, in holding that the requirements of openness and transparency applicable to the call for tenders required by Article 3(2) of the Sernam 2 decision necessarily presupposed that the selected candidate must have participated in the tender procedure as a candidate and in an autonomous capacity from the outset, the General Court erred in law.

Third, it submits, in holding that the tender of the Sernam management team was much more unfavourable to the vendor than the preliminary tenders of the other candidates, the General Court distorted the facts and erred in law.

Fourth, it submits, in holding that the Commission had not confused the purpose and the price of the en bloc sale of Sernam’s assets, the General Court erred in law, failed to comply with its obligation to state reasons and ruled on the basis of contradictory reasoning.

Fifth, it submits, in holding that the entry in the liabilities of the liquidation account of Sernam S.A. in the amount corresponding to the aid of EUR 41 million did not comply with Article 4 of the Sernam 2 decision, the General Court erred in law and distorted the operative part of the Sernam 2 decision.

Sixth, it submits, in holding that the private investor principle was not applicable to the en bloc disposal of Sernam’s assets, the General Court erred in law, failed to comply with its obligation to state reasons and distorted the operative part of the Sernam 2 decision.
2.

If the answer to Question 1 is in the affirmative, are collective management organisations, in levying a fee on devices and media by virtue of their sale by producers and importers, acting as taxable persons, within the meaning of Article 28 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), who are required to document those activities by means of an invoice for the purposes of Article 220(1)(1) of that directive, issued to producers and importers of audio recorders and similar devices and blank media, showing VAT as due by virtue of the fees, and, at the time at which the fees levied on behalf of the authors, performers and other rightholders are distributed to them, are the latter required to document receipt of the fees by means of an invoice indicating that VAT issued to the collective management organisation levying the fee?
EN Official Journal of the European Union C 165/10

Request for a preliminary ruling from the Tribunale di Pordenone (Italy) lodged on 22 February 2016 — Criminal proceedings against Giorgio Fidenato

(Case C-107/16)

(2016/C 165/11)

Language of the case: Italian

Referring court:

Tribunale di Pordenone

Criminal proceedings against:

Giorgio Fidenato

Questions referred for a preliminary ruling

1. When requested to do so by a Member State, is the Commission required, for the purposes of Article 54(1) of Regulation No 178/2002, (1) to adopt emergency measures even if the Commission does not consider there to be a serious and evident risk to human and animal health or to the environment?

2. If the Commission has notified the Member State that the conditions for the adoption of emergency measures do not exist, may the Member State take measures pursuant to Article 53 of Regulation No 178/2002?

3. May the Member State, on the basis of the precautionary principle, adopt emergency measures pursuant to Article 34 of Regulation No 1829/2003 (2) even where the conditions of serious and evident risk are not present, and may it maintain such measures in force when the Commission, after examining the opinion of EFSA, notifies it that the conditions necessary for the adoption of emergency measures are not met?

(1) Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p 1).

(2) Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ 2003 L 268, p 1).
1.

Do Directive 2000/29/EC, (1) as subsequently supplemented and amended, in particular Articles 11(3), 13c(7), and 16(1), (2), (3) and (5) thereof, and the principles of proportionality, logic and reasonableness preclude the application of Article 6(2) and (4) of European Commission Implementing Decision 2015/789/EU, (2) as implemented in the Italian legal order by Article 8(2) and (4) of the Decree of the Ministero delle politiche agricole alimentari e forestali (Ministry of Agriculture, Food and Forestry), in so far as it requires that host plants, regardless of their health status, be immediately removed within a radius of 100 metres around the plants which have been tested and found to be infected by the specified organism, and at the same time provides that the Member State is to carry out appropriate phytosanitary treatments prior to the removal of plants referred to in paragraph 2 against the vectors of the specified organism and plants that may host those vectors and that those treatments may include, as appropriate, removal of plants?
2.

The Appellant relies on three grounds of appeal, two in respect of the first State aid measure and one in respect of the second State aid measure. More specifically: — In relation to the first State aid measure: the appellant submits that the assessment in the judgment under appeal with regard to the existence of an advantage is vitiated by errors in law, combined with defective reasoning and procedural irregularity in respect of the value of the mines. — In relation to the first State aid measure: the appellant submits that the assessment in the judgment under appeal with regard to the existence of an advantage is vitiated by errors in law, combined with defective reasoning, in respect of the land value. — In relation to the second State aid measure: the appellant submits that the assessment in the judgment under appeal with regard to the existence of an advantage is vitiated by error in law.
1.

May the prohibitions in Article 3(1)(c) of Directive 2008/95 (1) include the use of a sign referring to the characteristic of a product or service which is that it can be found in abundance in a single place with a high degree of value and quality?
1.

Is the prohibition by the Maltese health authorities, or their refusal to grant recognition to the profession of clinical dental technologists/denturists, whereby, despite the absence of discrimination in law, individuals from other Member States who have made an application in this respect are in practice precluded from establishing their profession in Malta, incompatible with the principles and the legal provisions regulating the creation of the single market, in particular those resulting from Articles 49 TFEU, 52 TFEU and 56 TFEU, in a situation where there is no risk to public health?
Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 11 April 2016 — État belge v Max-Manuel Nianga

(Case C-199/16)

(2016/C 211/46)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: État belge

Defendant: Max-Manuel Nianga

Question referred

Is Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and having regard to the right to be heard in any proceedings, which forms an integral part of respect for the rights of the defence, a general principle of EU law, as applied in the context of that directive, (1) to be interpreted as requiring national authorities to take account of the best interests of the child, family life and the state of health of the third-country national concerned when issuing a return decision, referred to in Article 3(4) and Article 6(1) of the directive, or a removal decision, as provided for in Article 3(5) and Article 8 of the directive?

(1) OJ 2008 L 348, p. 98.
EN Official Journal of the European Union C 200/10

Request for a preliminary ruling from the Tribunale Amministrativo regionale per il Molise (Italy) lodged on 18 March 2016 — Spinosa Costruzioni Generali SpA, Melfi Srl v Comune di Monteroduni

(Case C-162/16)

(2016/C 200/15)

Language of the case: Italian

Referring court

Tribunale Amministrativo regionale per il Molise

Parties to the main proceedings

Applicants: Spinosa Costruzioni Generali SpA, Melfi Srl

Defendant: Comune di Monteroduni

Question referred

Do the Community principles of the protection of legitimate expectations and legal certainty, together with the principles of the free movement of goods, the freedom of establishment and the freedom to provide services, laid down in the Treaty on the Functioning of the European Union (TFEU), as well as the principles deriving therefrom, such as equality of treatment, non-discrimination, mutual recognition, proportionality and transparency, referred to (most recently) in Directive 2014/24/EU, (1) preclude national legislation, such as the Italian legislation founded on the combined provisions of Articles 87(4) and 86(3a) of Legislative Decree No 163 of 2006 and Article 26(6) of Legislative Decree No 81 of 2008, as interpreted, with a view to securing proper respect for, and uniform application of, the law, pursuant to Article 99 of the Code of Administrative Procedure, by judgments No 3 and No 9 of 2015 of the Plenary Assembly of the Consiglio di Stato, according to which the failure to list the corporate safety and security costs separately in tenders in a procedure for the award of a public works contract inevitably results in the exclusion of the tendering undertaking concerned, even in the case where the obligation to list that information separately was not set out either in the tender rules or on the attached form to be completed for the submission of the tender, and even though, in substantive terms, the tender in question took into account the minimum costs of corporate safety and security?

(1) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).
3.

If the first and second questions are answered in the affirmative: (a) Are so-called ferry flights operated by an air carrier transporting no passengers and no cargo or mail also covered by the term ‘commercial air transport’ within the meaning of FCL.065(b) or the definition of that term in FCL.010 in Annex I to Regulation (EU) No 1178/2011? (b) Are training and the conducting of exams in which a pilot over the age of 65 remains in the cockpit of the aircraft as a non-flying crew member covered by the term ‘commercial air transport’ within the meaning of FCL.065(b) or the definition of that term in FCL.010 in Annex I to Regulation (EU) No 1178/2011?
3.

Must Article 1(3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, be interpreted as meaning that ‘a particular contract’, as referred to in the passage concerning the ‘interest in obtaining a particular contract’, means ‘a particular procedure for the award of a public contract carried out’ (in this case: that published in the notice of 3 June 2015), or ‘the particular subject-matter of the contract’ (in this case: the service relating to the digitisation of the contracting authority’s archive documents), irrespective of whether, as a consequence of an appeal being granted, the contracting authority will be required to annul the procedure for the award of a public contract and may possibly be required to initiate a subsequent procedure for the award of a public contract?
2.

If it were in accordance with the constitutional principles of the European Union, used by the Court of Justice in its judgment of 8 April 2014 [Joined Cases C-293/12 (Digital Rights Ireland) and C-594/12 (Seitlinger and Others)] as standards for the strict review of the Directive, (2) to determine the seriousness of the offence solely on the basis of the sentence which may be imposed, what should the minimum threshold be? Would it be compatible with a general provision setting a minimum of three years’ imprisonment?
1.

On 18 March 2016 the European Commission brought an action against the Hellenic Republic which seeks a declaration from the Court of Justice that the Hellenic Republic, by failing to submit a report on cost-optimal levels, as is laid down in Article 5(2) of Directive 2010/31/ΕU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings, as supplemented by Commission Delegated Regulation (EU) No 244/2012 of 16 January 2012 establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements, has failed to fulfil its obligations under those provisions.
EN Official Journal of the European Union C 260/16

Request for a preliminary ruling from the Landgericht München I (Germany) lodged on 4 April 2016 — Criminal proceedings against Ionel Opria

(Case C-188/16)

(2016/C 260/21)

Language of the case: German

Referring court

Landgericht München I

Parties to the main proceedings

Ionel Opria

Other party: Staatsanwaltschaft München I

Question referred

Must Article 2, Article 3(1)(c) and Article 6(1) and (3) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (1) be interpreted as precluding legislation of a Member State under which, in criminal proceedings against an accused person with no fixed domicile or residence in that Member State, a penalty order made against the accused can be served on a person appointed by him as being authorised to accept service on his behalf, with the result that the penalty order acquires the force of res judicata upon expiry of the (two-week) period for lodging an objection, which begins to run from the time of service on the authorised person, even where, in accordance with the legislation of that Member State, any such accused person who lodges a written objection against the penalty order with the court having jurisdiction within two weeks of actually becoming aware of that order must ex officio have his position restored to the status quo ante, with the result that, following the adoption of the decision to restore the status quo ante, proceedings must continue as they would in the case of an objection lodged in good time?

(1) OJ 2012 L 142, p. 1.
EN Official Journal of the European Union C 270/36

Appeal brought on 8 June 2016 by Eurallumina SpA against the judgment of the General Court (First Chamber, Extended Composition) delivered on 22 April 2016 in joined cases T-60/06 RENV II and T-62/06 RENV II: Italian Republic and Eurallumina SpA v European Commission

(Case C-323/16 P)

(2016/C 270/39)

Language of the case: English

Parties

Appellant: Eurallumina SpA (represented by: L. Martin Alegi, A. Stratakis, L. Philippou, Solicitors)

Other parties to the proceedings: Italian Republic, European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the Judgment,

— annul the Decision (1) in so far as it orders the Italian Republic to recover the aid, or failing that,

— refer the case back to the general Court,

— order the Commission to pay the costs.

Pleas in law and main arguments

The Appellant raises a single plea in law, divided into five parts, alleging infringement of Community law, in particular infringement of the principle of legitimate expectations and failure to state reasons. The Appellant's specific pleas in law are as follows:

1. The General Court erred in law in interpreting the Judgment of 10 December 2013 so as to consider itself bound to find that publication of the opening of the proceedings on 2 February 2002 put an end to Eurallumina's legitimate expectations.

2. In consequence of this error, the General Court failed to fulfil the very purpose of the referral back and failed to assess Eurallumina's arguments regarding the continuation of its legitimate expectations or assessed them in a distorted legal framework and erroneously.

3. Even in the application of its distorted legal framework the General Court erred in law by finding that the Commission's unreasonable delay in conducting the investigation was not capable of having given rise to legitimate expectations on the part of Eurallumina preventing recovery of the aid.

4. The General Court misinterprets Directive 2003/96 (2) contra legem, in breach of Community law and its principles of interpretation.

5. The General Court erred in law in rejecting Eurallumina's arguments based on its investments in the Sardinian plant.

(1) 2006/323/EC: Commission Decision of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (notified under document number C(2005) 4436)

OJ L 119, p. 12

(2) Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity

OJ L 283, p. 51
1.

Does Article 49 TFEU preclude Finnish legislation under which, where a Finnish company by way of a transfer of business disposes of assets of a permanent establishment situated in another EU Member State to a company established in that State in return for new shares, the transfer of the assets is taxed immediately in the year of transfer, but in a corresponding national situation is not taxed until the time of realisation?
EN Official Journal of the European Union C 287/16

Action brought on 1 June 2016 — European Commission v Czech Republic

(Case C-314/16)

(2016/C 287/20)

Language of the case: Czech

Parties

Applicant: European Commission (represented by: Z. Malůšková and J. Hottiaux

Defendant: Czech Republic

Form of order sought

The applicant claims that the Court should:

1. declare that: (a) by failing to ensure that the definition of groups C1 and C relates only to vehicles other than vehicles in groups D 1 and D, the Czech Republic has failed to fulfil its obligations under Article 4(1) and 4(4)(d) and (f) of Directive 2006/126/EC; (b) by restricting the definition of group D1 to vehicles designed and constructed for more than eight passengers, the Czech Republic has failed to fulfil its obligations under Article 4(1) and 4(4)(h) of Directive 2006/126/EC; (1)

2. order Czech Republic to pay the costs.

Pleas in law and main arguments

Article 4(1) of Directive 2006/126/EC provides that driving licences are to authorise the driving of power-driven vehicles in the categories defined in that article. Under Article 4(4)(d) and (f) of the Directive, the groups C1 and C are further defined. The condition that the group must include vehicles ‘other than those in categories D1 or D’ is expressly provided for in respect of both groups. The Czech legislation defining vehicle groups however does not include the condition that groups C1 and C must be restricted to ‘motor vehicles other than those in categories D1 or D’.

Article 4(4)(h) of Directive 2006/126/EC defines group D1 as a group including vehicles ‘designed and constructed for the carriage of no more than 16 passengers in addition to the driver’, without providing for a minimum number of passengers. The Czech legislation however includes the additional requirement that vehicles intended for the carriage of more than 8 passengers are to be classified in group D1.

(1) OJ L 403, p. 18.
Must Article 7(3) of the directive be interpreted as meaning that a Member State may not make recovery of the principal debt conditional on the waiver of the right to compensation for recovery costs?

Should the answer to those two questions be in the affirmative,
1.

Is the deadline set in Directive 2010/28/EU (1) by the use of the phrases ‘by 31 December 2010’ in Article 3(1) and ‘by that date’ in the second paragraph of Article 3(1), which also refers to 31 December 2010, in conjunction with the period of six months referred to in Recital 8 of the preamble to Directive 2010/28/EU, a mandatory time-limit by virtue of the purpose sought by the system established by Council Directive 91/414/EEC (2) of 15 July 1991, and not susceptible of extension by the Member States, such that it must be calculated exclusively in accordance with the directive?
EN Official Journal of the European Union C 326/8

Appeal brought on 21 January 2016 by Copernicus-Trademarks Ltd against the judgment of the General Court (Ninth Chamber) delivered on 25 June 2015 in Case T-186/12: Copernicus-Trademarks v EUIPO

(Case C-43/16 P)

(2016/C 326/14)

Language of the case: English

Parties

Appellant: Copernicus-Trademarks Ltd (represented by: C. Röhl, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

By order of 14 June 2016 the Court of Justice (Eight Chamber) held that the appeal was inadmissible.