ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 305/20

Appeal brought on 7 July 2016 by European Dynamics Luxembourg SA, European Dynamics Belgium SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fourth Chamber) delivered on 27 April 2016 in Case T-556/11: European Dynamics Luxembourg SA, European Dynamics Belgium SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Union Intellectual Property Office

(Case C-379/16 P)

(2016/C 305/29)

Language of the case: English

Parties

Appellants: European Dynamics Luxembourg SA, European Dynamics Belgium SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: C.-N. Dede, D. Papadopoulou, Δικηγόροι)

Other party to the proceedings: European Union Intellectual Property Office

Form of order sought

The appellants claim that the Court should:

— Set aside the judgment of the General Court under Appeal as per the rejection of the new plea in law related to the acceptance of an offer including a discount.

— Annul the award decision of EUIPO in so far as it accepted IECI’s tender, which included a discount contrary to the requirements of the tender specifications.

— Order EUIPO to pay the Appellants’ legal and other costs and expenses incurred in connection with the initial procedure and the current Appeal.

Pleas in law and main arguments

The appellants base their appeal on the fact that the General Court misinterpreted the Defendant’s arguments and distorted the evidence provided by EUIPO, following the Order of the General Court of measures of inquiry, which was also confirmed during the hearing by EUIPO. Such evidence demonstrated that the winning tenderer’s offer included a discount (which was offered irregularly) and that such discount was considered in the course of the evaluation. By offering a discount, the first winning tenderer included in its tender a variant in relation to the proposed price, contrary to the tender specifications (as complemented by the provision of answers by the Contracting authority to the questions of the tenderers). The General Court, specifically, erred in law in considering that EUIPO allegedly did not take into account the discount provided by the winning tender for the purposes of the financial assessment and, therefore, that because such discount was allegedly not taken into account, that EUIPO did not infringe the tender specifications.
1.

Must Article 8 of Directive [90/434/EEC] of 23 July 1990 (1) be interpreted as meaning that it prohibits, in the event of an exchange of shares falling within the scope of the directive, a mechanism for deferred taxation which provides, by way of derogation from the rule that the chargeable event for capital gains tax purposes occurs during the year in which the gain arises, that the capital gain on the exchange is established and settled on the exchange of the shares, and taxed in the year in which the event putting an end to the deferred taxation occurs, which may, for instance, be the transfer of the shares that were received at the time of the exchange?
4.

Do Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, Regulation (EC) No 714/2009 (2) of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003, (3) [Commission] Regulation (EU) 2015/1222 (4) [of 24 July 2015] establishing a guideline on capacity allocation and congestion management [and] Regulation (EU) No 1227/2011 (5) of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency permit restrictions on the number of persons to whom a licence for electricity transmission may be issued in a particular territory?
—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Article 260 TFEU, in that it has not adopted the measures necessary to comply with the judgment of the Court of 11 December 2014 in Case C-576/13, (1) Commission v Spain, relating to the failure by the Kingdom of Spain to fulfil its obligations under Article 49 TFEU.
1.

Does Article 4 of Council Directive 2011/96/EU of 30 November 2011, (1) and in particular paragraph 1(a) thereof, preclude a levy such as that provided for in Article 235ter ZCA of the General Tax Code, which is payable on the distribution of profits by parent companies that are liable to corporation tax in France and is assessed on the basis of the sums distributed?
‘1.

Must Article 67(2) TFEU and Article 20 and Article 21 of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (1) (Schengen Borders Code), or any other rules of EU law, be interpreted as precluding national legislation which grants the police authorities of the Member State in question the power to search, within an area of up to 30 kilometres from the land border of that Member State with the States party to the Convention implementing the Schengen Agreement of 14 June 1985 (Convention implementing the Schengen Agreement), for an article, irrespective of the behaviour of the person carrying this article and of specific circumstances, with a view to impeding or stopping unlawful entry into the territory of that Member State or to preventing certain criminal acts directed against the security or protection of the border or committed in connection with the crossing of the border, in the absence of any temporary reintroduction of border controls at the relevant internal border pursuant to Article 23 et seq. of the Schengen Borders Code?
2.

If the answer to Question 1 is in the affirmative: In applying Regulation (EU) No 1259/2010 [when examining] Article 10 thereof in cases of private divorce, (1) is account to be taken in the abstract of a comparison showing that, while the applicable law pursuant to Article 8 grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to procedural and substantive conditions different from those applicable to access for the first spouse, or (2) does the applicability of that rule depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?
2.

In this case, account being taken of the provisions in Article 16 of the agreement, should the case-law deriving from the judgment of 7 September 2006 in Case C-470/04, which was made after the agreement, be applied in the case of a national of a Member State who transferred his residence to Switzerland and who merely keeps his shareholding in companies under the law of that Member State (which gives him a definite influence over the decisions of those companies and enables him to determine their activities), without claiming to have the intention to pursue in Switzerland an activity as a self-employed person which is different to the activity he pursued in the Member State of which he was a national and which consists in the management of his shareholdings?
2.

Error in the application of the law, resulting in an infringement of the rules of procedure which adversely affects the interests of the appellant in the following ways: — The absence of a separate written claim does not infringe the rights of the opposing party or render the Court’s work more difficult; — The Court failed to take account of the language of the case, since the Bulgarian version of the Rules of Procedure does not necessarily require a separate document. — Infringement of the adversarial principle set out in Article 64 of the Rules of Procedure, since the Court did not give the appellant the opportunity to familiarise itself with the decision of the Council itself or with the other language versions of the Rules of Procedure, so as to be in a position to prepare its claim in accordance with the linguistic knowledge and expectations of the Court. — The Court failed to comply with its obligations under Article 86(4) of the Rules of Procedure, which required the provision of a possibility, and where necessary an additional deadline, for the presentation of a copy of Council Decision (CFSP) 2015/837 of 28 May 2015 justifying the modification of the claim. — The Court infringed Article 87(2) of the Rules of Procedure by failing to fully examine the circumstances of the case in its preliminary report.
1.

Is it outright impossible for the imposition and subsequent implementation of a custodial penalty to have the result that the integrating links of a Union citizen who entered the host Member State at the age of three must be considered to be broken, with the consequence that there is no uninterrupted period of residence of 10 years for the purposes of Article 28(3)(a) of Directive 2004/38 (1) and therefore that there is no requirement to grant him protection against expulsion under Article 28(3)(a) of Directive 2004/38, if that Union citizen has, since entering the host Member State at the age of three, spent his entire life there and no longer has any ties to the Member State of his nationality, and the offence that resulted in imposition and implementation of a custodial sentence was committed only after he had been resident for 20 years?
EN Official Journal of the European Union C 383/2

Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 19 July 2016 — Soufiane El Hassani v Minister Spraw Zagranicznych

(Case C-403/16)

(2016/C 383/03)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Soufiane El Hassani

Respondent: Minister Spraw Zagranicznych

Question referred

Must Article 32(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), (1) having regard to recital 29 of the Visa Code and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as requiring the Member States to guarantee an effective remedy (appeal) before a court of law?

(1) OJ 2009 L 243, p. 1.
EN Official Journal of the European Union C 371/6

Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 1 August 2016 — ‘Frontex International’ ЕАD v Emil Yanakiev

(Case C-428/16)

(2016/C 371/08)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant:‘Frontex International’ ЕАD

Defendant: Emil Yanakiev

Questions referred

1. Does Article 101(1) TFEU (prohibition of the prevention, restriction or distortion of competition) preclude Paragraph 36(2) of the Law on the Legal Profession under which an association of undertakings which practise liberal professions (the Supreme Council of the Legal Profession) has discretion, by virtue of a power conferred on it by the State, to lay down in advance the minimum level of the prices for the services supplied by those undertakings (legal fees)?

2. If Question 1 is answered in the affirmative, does the last part of Paragraph 78(5) of the Code of Civil Procedure (in which that provision does not allow a reduction of the lawyer’s fee to below a fixed minimum amount) conflict with Article 101(1) TFEU?

3. If Question 1 is answered in the affirmative, does Paragraph 132(5) of the Law on the Legal Profession (with regard to the application of Paragraph 136(1) of that law) conflict with Article 101(1) TFEU?

4. Does the first paragraph of Article 56 TFEU (prohibition of restrictions on freedom to provide services) preclude Paragraph 36(2) of the Law on the Legal Profession?

5. Does Paragraph 78(8) of the Code of Civil Procedure conflict with Article 101(1) TFEU?

6. Does Paragraph 78(8) of the Code of Civil Procedure conflict with Directive 77/249/EEC (1) (as regards the right of persons represented by in-house legal advisers to claim legal fees)?

7. Does Paragraph 2a of the Supplementary Provisions to Order No 1 conflict with Directive 2006/112/EC, (2) which allows value added tax to be regarded as a component part of the price of the service supplied in the exercise of a profession (in relation to the inclusion of value added tax as part of the lawyer’s fee payable)?

(1) Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17).

(2) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
3.

If the answer to the previous questions is that the directive does not preclude the capital gain resulting from an exchange of securities from being taxed at the time at which the securities received at the time of that exchange are subsequently transferred, even if those two transactions do not fall within the fiscal competence of the same Member State, may the Member State in which the capital gain on the exchange was subject to deferred taxation tax the deferred capital gain at the time of the transfer, subject to the applicable provisions of the bilateral Tax Convention, irrespective of the outcome of the transfer when it results in a capital loss? That question is asked in respect of both Directive 90/434/EEC and the freedom of establishment guaranteed by Article 43 [EC], now Article 49 [TFEU], since a taxpayer whose tax residence is in France at the time at which the securities are exchanged and at the time at which they are transferred may, under the conditions set out in paragraph 4 above, benefit from a tax credit derived from the capital loss on the transfer.
3.

The General Court erred in law in evaluating the evidence or clearly distorting the evidence, failing to carry out a full review exercising its powers of unlimited jurisdiction, infringing the right to effective judicial protection and failing to state reasons.
(5)

Is Article 27 of Regulation No 604/2013 to be interpreted as meaning that the time-limits of Article 13(1) and Article 29(2) do not run where the applicant exercises the right to judicial protection, a fortiori where that implies also a question for a preliminary ruling or where the national court is awaiting the answer of the Court of Justice of the European Union to such a question which has been submitted in another case? In the alternative, would the time-limits run in such a case, the Member State responsible however not being entitled to refuse reception?
10.

The Commission states that there is no statistical data to demonstrate that the urban waste-water which has been collected has been subject to treatment more stringent than secondary treatment, with the exception of the reply from the Greek authorities of 27 November 2012. That reply contains data, but that data covers only one period of four months, since the plant had been brought into operation on 27 July 2012. In any event, in order to prove adequate treatment of the collected waste-water the Greek authorities are under an obligation to demonstrate that the operation of the treatment plant has been lawfully compliant for a period of 12 months, recording a percentage of reduction in BOD5 (biochemical oxygen demand) and COD (chemical oxygen demand) which satisfies the requirements of the directive with respect to secondary treatment and, with respect to the tertiary treatment, an adequate percentage of reduction in nitrogen that complies with Table 2 of Annex Ι to the directive. While that data is absent the Commission is not in a position to verify whether the urban waste-water which is now collected is finally subjected to treatment more stringent than secondary treatment, as that is described in Article 4 of the directive.
1.

Infringement of Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union and of Article 68 of the Rules of Procedure of the General Court by rejecting the requested hearing of witnesses. — The General Court’s rejection of the requested witness evidence placed Telefónica in a situation in which it was unable to defend itself, since that evidence was essential and decisive for the proper adjudication of the case. The approach taken by the General Court warrants four fundamental objections: (i) the teleological contradiction objection; (ii) the disproportionate burden of proof objection; (iii) the objection relating to the prejudging of the outcome of the witness evidence; and (iv) the imbalanced weighting objection.
EN Official Journal of the European Union C 419/32

Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 5 September 2016 — Fidelity Funds v Skatteministeriet

(Case C-480/16)

(2016/C 419/42)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Fidelity Funds

Defendant: Skatteministeriet

Intervener: NN (L) SICAV

Question referred

Is a tax regime, such as that in the main proceedings, under which non-Danish undertakings for collective investment covered by Council Directive 85/611/EEC (1) (the UCITS Directive) are taxed at source on dividends from Danish companies, contrary to Article 56 TEC (Article 63 TFEU) on free movement of capital or Article 49 TEC (Article 56 TFEU) on freedom to provide services, where equivalent Danish undertakings for collective investment can obtain an exemption for tax at source, either because they in fact make a minimum distribution to their members in return for retention of tax at source, or technically a minimum distribution is calculated, on which tax at source is retained in relation to the undertakings’ members?

(1) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ 1985 L 375, p. 3).
2.

In the same situation, how is Article 4 of Commission Regulation (EC) No 794/2004 (1) to be applied, pursuant to which an increase in the original budget of an existing aid scheme exceeding 20 % constitutes a change to that aid scheme and, in particular: (a) how does it combine with the obligation to notify the Commission in advance of an aid scheme, laid down in Article 88(3) of the EC Treaty, now Article 108 TFEU? (b) if exceeding the 20 % threshold of the original budget of an existing aid scheme provided for under Article 4 of Commission Regulation (EC) No 794/2004 requires a new notification, must that threshold be assessed in relation to the amount of expenditure allocated or to the expenditure actually granted to the beneficiaries, excluding the sums placed in the reserve or those having been made subject to a levy for the benefit of the State? (c) assuming that compliance with the 20 % threshold must be assessed in relation to the expenditure dedicated to the aid scheme, must such an assessment be made by comparing the overall level of expenditure in the approval decision with the overall budget subsequently allocated to all aid schemes granted by the body responsible for such allocations, or by comparing the levels notified under each of the categories of aid identified in that decision with that body’s corresponding budget line?
3.

Third.- In mortgage enforcement proceedings in which the court of first instance refused to make an enforcement order because the application was based on an early repayment term declared unfair in other, earlier mortgage enforcement proceedings, based on the same instrument and between the same parties, and in which the refusal to make an enforcement order was overturned by the appeal court which referred the case back so that an enforcement order could be made at first instance, is it contrary to the principle of effectiveness laid down in Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts to make the decision on appeal binding on the lower court or must national law be interpreted as meaning that the lower court is not bound by the decision on appeal when there is already an earlier final judgment annulling the early repayment term on which the enforcement order is based and, in that case, must the application for enforcement again be ruled inadmissible?
EN Official Journal of the European Union C 14/19

Appeal brought on 24 June 2016 by 100 % Capri Italia Srl against the judgment of the General Court (First Chamber) of 19 April 2016 in Case T-198/14, Capri Italia v EUIPO — IN.PRO.DI (100 % Capri)

(Case C-351/16 P)

(2017/C 014/24)

Language of the case: Italian

Parties

Appellant: 100 % Capri Italia Srl (represented by: P. Pozzi, G. Ghisletti, F. Braga, avvocati)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Inghirami produzione distribuzione SpA (IN.PRO.DI)

By order of 10 November 2016, the Court (Seventh Chamber) dismissed the appeal and ordered 100 % Capri Italia Srl to bear its own costs.
3.

If the answer to the first question is in the affirmative, are, in circumstances such as those at issue in the main proceedings, Articles 184 and/or 185 of Directive 2006/112 to be interpreted as meaning that, in a case where an initial deduction could not have been made at all because the transaction in question was exempt from VAT, the taxable person’s obligation to adjust that deduction must be considered to have arisen immediately or only when it became known that the initial deduction could not have been made?
2.

Are a provision of law such as Article 175(2), point 3, DOPK and a tax practice in accordance with which companies which pay out income subject to withholding tax are charged interest for the period from the point at which the time limit laid down for the payment of the tax on such income expires until the day on which a non-resident company established in another Member State furnishes evidence that the requirements for the application of a double taxation convention entered into with the Republic of Bulgaria have been fulfilled, which is charged also in cases in which, pursuant to the convention, no such tax or a lower amount thereof is to be paid, compatible with Articles 49 TFEU, 54 TFEU, 63 TFEU and 65(1) and (3) TFEU?
If the above question is answered in the affirmative, is the provision of that alternative possibility for the fulfilment of the energy savings obligations compatible with the abovementioned Articles 7(1) and 20(6) of the directive when its actual existence depends on whether the Government establishes it on a discretionary basis through legislation?

In that respect, is such legislation compatible when the Government does not implement that alternative?
EN Official Journal of the European Union C 22/2

Request for a preliminary ruling from the Nejvyšší soud České republiky (Czech Republic) lodged on 16 September 2016 — Criminal proceedings against Juraj Sokáč

(Case C-497/16)

(2017/C 022/02)

Language of the case: Czech

Referring court

Nejvyšší soud České republiky

Party to the main proceedings

Juraj Sokáč

Question referred

Can medicinal products as defined in Directive 2001/83/EC (1) of the European Parliament and of the Council, which contain ‘scheduled substances’ as laid down by Regulation (EU) No 273/2004 (2) of the European Parliament and of the Council, be regarded as excluded, on the basis of Article 2(a) of that regulation, from the scope of the Regulation in accordance with the judgment of the Court of Justice of the European Union in Joined Cases C-627/13 and C-2/14, even after amendment of that provision by Regulation No 1258/2013 (3) and in view of the fact that Article 2(a) of Regulation No 111/2005 (4) as amended by Regulation No 1259/2013 (5) brings medicinal products containing ephedrine and pseudoephedrine within the system laid down by Regulation No 111/2005?

(1) OJ 2001 L 311, p. 67.

(2) OJ 2004 L 47, p. 1.

(3) OJ 2013 L 330, p. 21.

(4) OJ 2005 L 22, p. 1.

(5) OJ 2013 L 330, p. 30.