ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 165/12

Action brought on 23 March 2012 — European Commission v French Republic

(Case C-143/12)

2012/C 165/20

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Wilms and S. Petrova, acting as Agents)

Defendant: French Republic

Form of order sought

— declare that, by failing to issue permits in accordance with Articles 6 and 8, to reconsider and, if appropriate, to update the existing permits and to ensure that all the existing installations are operated in accordance with the requirements laid down in Articles 3, 7, 9, 10, 13, 14(a) and 9b) and 15(2) of the IPPC Directive, the French Republic has failed to fulfil its obligations under Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (IPPC Directive) (1);

— order French Republic to pay the costs.

Pleas in law and main arguments

Pursuant to Article 5(1) of the IPPC Directive, Member States are to take the necessary measures to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007.

On 3 November 2009, the Commission sent a letter before action, taking the view that the defendant permitted the operation of a large number of existing installations (1647 installations) which did not have a permit complying with the requirements of Article 5(1) of the IPPC Directive. At the time the reasoned opinion was sent, 784 existing installations were still without a permit in accordance with Article 5(1) of the directive.

Although the situation has since improved, at the time the present application was lodged, four installations continue to be operated in the French Republic without a permit in accordance with the directive.

Therefore, the Commission takes the view that the French Republic has not yet put an end to the infringement of Article 5(1) of the IPPC Directive.

(1) OJ 2008 L 24, p. 8.
The Appellant complains that, in the judgment under appeal, the General Court failed to consider some extremely important and pertinent factors, on the one hand, and did not properly apply some very important criteria, on the other hand, in particular the lack of distinctiveness and the descriptive character of the word element ‘ALPINE’. The General Court did not conclude on the meaning of the term ‘alpine’ for all the languages of the European Union. Moreover, the General Court did not draw the legal conclusions from its owns findings concerning the clear meaning of the term ‘alpine’ and did not clearly conclude on the lack of distinctiveness and the descriptive characters of the word ‘alpine’, considering that the alleged weak distinctive character, or descriptive character, of the element ‘alpine’ cannot preclude a likelihood of confusion. The General Court held that ‘ALPINE’ would be the dominant element in both signs, without taking into consideration the lack, or at least, the very low level of, distinctiveness of the earlier mark ALPINE. The reasoning of the Judgement under appeal is vitiated by a contradiction which led the General Court wrongly to decide that the marks at issue were conceptually similar without taking into consideration the lack, or at least, the low level of, distinctiveness of the earlier mark ALPINE. A conceptual comparison of the word element ‘ALPINE’ is irrelevant, because of the lack of distinctiveness.
EN Official Journal of the European Union C 98/16

Reference for a preliminary ruling from the Gerechtshof te Leeuwarden (Netherlands), lodged on 18 January 2012 — fiscale eenheid PPG Holdings BV c.s. v Inspecteur van de Belastingdienst/Noord/kantoor Groningen

(Case C-26/12)

2012/C 98/24

Language of the case: Dutch

Referring court

Gerechtshof te Leeuwarden (Netherlands)

Parties to the main proceedings

Appellant: fiscale eenheid PPG Holdings BV c.s.

Respondent: Inspecteur van de Belastingdienst/Noord/kantoor Groningen

Questions referred

1. Can a taxable person who, pursuant to national pensions legislation, has established a separate pension fund for the purpose of safeguarding the pension rights of his employees and former employees, as participants in the fund, deduct the tax which he [has paid] on the basis of services supplied to him in respect of the implementation of the pension provision and the operation of the pension fund, pursuant to Article 17 of Directive 77/388/EEC (1) (Articles 168 and 169 of Directive 2006/112/EC (2))?

2. Can a pension fund, established with the objective of providing a pension for the participants in the pension fund at the lowest possible cost, where assets are brought to and invested in the pension fund by or on behalf of the participants, and where the resulting proceeds are shared, be classified as a ‘special investment fund’ within the terms of Article 13B[(d)].6 of Directive 77/388/EEC (Article 135(1)(g) of Directive 2006/112/EC)?

(1) 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).

(2) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 157/6

Action brought on 3 April 2012 — European Commission v Council of the European Union

(Case C-165/12)

2012/C 157/10

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Bouquet and E. Paasivirta, acting as Agents)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision 2012/19/EU (1) of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana, inasmuch as it is based on Article 218(6)(b) TFEU in conjunction with Article 43(3) TFEU;

— Maintain the effects of the annulled decision until the entry into force of a new decision adopted, within a reasonable period, on an appropriate legal basis, namely Article 218(6)(a) TFEU in conjunction with Article 43(2) TFEU, or, in the event of a refusal by the Parliament to give its approval, until expiry of a reasonable short period after the Parliament’s decision refusing approval, and

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

Pleas in law and main arguments

The Commission seeks the annulment, with maintenance of its effects until adoption of a new measure, of Council Decision 2012/19/EU, inasmuch as the choice of legal basis departs fundamentally from that proposed by the Commission, namely Article 218(6)(a) TFEU (in conjunction with Article 43(2) TFEU), with the approval of the Parliament.

The Commission submits that, by so acting, the Council has erred and that, in accordance with the Commission’s proposal, it should seek the approval of the Parliament before adopting the measure in question.

In support of its action, the Commission puts forward three pleas in law: the first plea in law, split into three parts, alleging, firstly, infringement of Article 218(6)(a) TFEU and Article 43(2) TFEU in that the Council has used Article 218(6)(b) TFEU and Article 43(3) TFEU as the legal basis for the contested measure and, secondly, infringement of the second paragraph of Article 296 TFEU in that the Council has given contradictory reasons for its choice of legal basis.

The second plea in law, following from the first, also alleges infringement of Article 218(6)(a) TFEU in that the Council has disregarded the institutional prerogatives of the European Parliament by failing to obtain its approval despite the fact that that approval is required by the article in question.

The third plea in law alleges infringement of Articles 17 TEU and 218(6) TFEU in that the Council has distorted the Commission’s proposal.

(1) OJ 2012 L 6, p. 8.
3.

Does a right to legal aid in the above sense arise at least in the alternative from Article 43(1) of Regulation No 44/2001 and/or Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms where national law requires a party to be represented before the court by a lawyer for the lodging of the appeal in question?
EN Official Journal of the European Union C 174/20

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 18 April 2012 — Yvon Welte v Finanzamt Velbert

(Case C-181/12)

2012/C 174/31

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Yvon Welte

Defendant: Finanzamt Velbert

Question referred

Are Articles 56 and 58 of the Treaty establishing the European Community to be interpreted as precluding national legislation of a Member State on the charging of inheritance tax which, where land situated within the country is acquired through inheritance by a non-resident person, provides for a tax-free amount of only EUR 2 000 for the non-resident acquirer, whereas on the acquisition through inheritance a tax-free amount of EUR 500 000 would apply if at the time of the inheritance the deceased person or acquirer had a permanent residence in the Member State concerned?
2.

With reference to the Recast Directive (2006/54/EC), is it unlawful discrimination to treat a person (‘A’) less favourably on the grounds of the pregnancy of a woman (‘B’) who is (i) his partner, or (ii) otherwise associated with him?
EN Official Journal of the European Union C 118/12

Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 3 February 2012 — Fédération des maisons de repos privées de Belgique (Femarbel) ASBL v Commission communautaire commune

(Case C-57/12)

2012/C 118/19

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicant: Fédération des maisons de repos privées de Belgique (Femarbel) ASBL

Defendant: Commission communautaire commune

Question referred

Must the healthcare services referred to in Article 2(2)(f) and the social services referred to in Article 2(2)(j) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (1) be interpreted in such a way as to exclude from the scope of the Directive day-care centres within the meaning of the ordinance of the Commission communautaire commune of 24 April 2008 on establishments receiving or accommodating old people, in so far as they provide assistance and care appropriate to the loss of independence of old people, and likewise night-care centres within the meaning of the same ordinance, in so far as they provided health assistance and care that cannot be given to old people by their close relatives on a continuous basis?

(1) OJ 2006 L 376, p. 36.
EN Official Journal of the European Union C 126/7

Action brought on 21 February 2012 — European Commission v Republic of Poland

(Case C-90/12)

2012/C 126/15

Language of the case: Polish

Parties

Applicant: European Commission (represented by: K. Simonsson and M. Owsiany-Hornung, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by not adopting appropriate measures needed to comply with Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (1) and in any event by not informing the Commission of such measures, the Republic of Poland has failed to fulfil its obligations under those articles of the directive;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Article 5 of Regulation No 847/2004 requires Member States to ensure ‘a distribution of traffic rights among eligible [European Union] air carriers on the basis of a non-discriminatory and transparent procedure’. In addition, under Article 6 of the regulation, Member States are obliged to inform the Commission without delay of the procedures applied for the purposes of Article 5. The Commission publishes those procedures in the Official Journal. The carrying out of the procedures referred to in those provisions is dependent upon the adoption of an appropriate implementing regulation by the minister responsible for transport matters. That regulation had still not been adopted when the present action was brought and in any event the Polish authorities have not informed the Commission in that regard. In those circumstances, the Commission assumes that the carrying out of the procedures envisaged in Article 5 of Regulation No 847/2004 and the appropriate notification of the Commission on the basis of Article 6 of the regulation are not possible, given the lack of appropriate provisions in Polish law.

(1) OJ 2004 L 157, p. 7.
EN Official Journal of the European Union C 217/7

Action brought on 26 April 2012 — European Commission v French Republic

(Case C-197/12)

2012/C 217/13

Language of the case: French

Parties

Applicant: European Commission (represented by: F. Dintilhac and C. Soulay, Agents)

Defendant: French Republic

Form of order sought

— declare that, by not making the exemption from VAT of transactions referred to in Article 262, Part II(2), (3), (6) and (7), of the Code général des impôts conditional on the requirement of use for navigation on the high seas, in respect of vessels carrying passengers for reward and those used for the purpose of commercial activities, the French Republic has failed to fulfil its obligations under the VAT Directive, (1) in particular Article 148(a), (c) and (d) thereof;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By the present action, the Commission claims that the exemption from VAT of the transactions referred to in Article 262, Part II(2), (3), (6) and (7), of the Code général des impôts (French General Tax Code) (CGI) was not made conditional on the requirement of use for navigation on the high seas, in respect of vessels carrying passengers for reward and those used for the purpose of commercial activities. That condition that vessels must be used on the high seas was added to the legislative provisions regulating VAT in France in response to the Commission’s reasoned opinion addressed to the national authorities. However, the bringing of Article 262, Part II(2), of the CGI into line with the VAT directive was rendered ineffective by an explanatory ministerial ruling binding on the administrative authorities, published subsequent to the legislative amendment, which does not mention the condition that vessels must be used for navigation on the high seas, although this was provided for by the legislation.

In the Commission’s view, none of the arguments put forward by the defendant in the course of the pre-litigation procedure, concerning, inter alia, the strict interpretation of Article 148(a) of the VAT Directive and the overly restrictive interpretation of the condition that vessels must be used for navigation on the high seas, can justify the failure to comply with the provisions of the aforementioned directive. Furthermore, as regards Article 131 of Directive 2006/112/EC, relied on by the French authorities, this cannot justify a derogation from the principle that exemptions must be subject to strict interpretation.

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 200/7

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 3 May 2012 — Walter Endress v Allianz Lebensversicherungs-AG

(Case C-209/12)

2012/C 200/13

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Walter Endress

Defendant: Allianz Lebensversicherungs-AG

Question referred

Must the first indent of Article 15(1) of Council Directive 90/619/EEC of 8 November 1990 (1) on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC (Second Life Assurance Directive), having regard to Article 31(1) of Council Directive 92/96/EEC of 10 November 1992 (2) on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (Third Life Assurance Directive), be interpreted as precluding a provision — such as the fourth sentence of Paragraph 5a(2) of the Versicherungsvertragsgesetz (Law on insurance contracts) in the version of the Drittes Gesetz zur Durchführung versicherungsrechtlicher Richtlinien des Rates der Europäischen Gemeinschaften (Third Law implementing directives of the Council of the European Communities on insurance law) of 21 July 1994 — under which a right of cancellation lapses one year at the latest after payment of the first premium even if the policy-holder has not been informed about the right of cancellation?

(1) Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC, OJ 1990 L 330, p. 50.

(2) Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive), OJ 1992 L 360, p. 1.
1.

Do the provisions of Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) apply when a shareholder of a football club who presents himself as, and is considered in the mass media as, the principal director (or ‘manager’) of that football club makes a statement to the mass media in the following terms: ‘Not even if I had to close Steaua down would I accept a homosexual on the team. Obviously people will talk, but how could anyone write something like that if it’s not true and, what’s more, put it on the front page… Perhaps he’s not a homosexual [X, a Bulgarian footballer] … But what if he is? … I said to an uncle of mine who didn’t believe in Satan or in Christ. I said to him: “Let’s say God doesn’t exist. But suppose he does? What do you lose by taking communion? Wouldn’t it be good to go to Heaven?” He said I was right. A month before he died he took communion. May God forgive him. There’s no room for gays in my family, and Steaua is my family. It would be better to play with a junior rather than someone who was gay. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose. Not even if I had to close Steaua down would I accept a homosexual on the team. … Perhaps he’s not a homosexual, but what if he is? There’s no room for gays in my family, and Steaua is my family. Rather than having a homosexual on the team, it would be better to play a junior. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose. Even if God told me in a dream that it was 100 percent certain that X wasn’t a homosexual I still wouldn’t take him! Too much has been written in the papers about his being a homosexual. Even if ȚSKA gave him to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drunk … but if he’s a homosexual I don’t want to know about him’?
First plea: Infringement of Articles 2(2) and 3(2) TFUE, because the Council has considered that the matter is one of shared competence, and has authorised Member States or an Institution other than the Commission to negotiate the agreement, in a matter of exclusive competence. The future Council of Europe Convention may affect or alter the scope of EU Directives dealing with the rights of broadcasting organisations, as well as that of EU Directives on intellectual property law generally. The future Convention will be based on the existing EU acquis, and will inevitably lead to the amendment of the EU Directives should a higher degree of protection be granted to broadcasting organisations within the Council of Europe.
EN Official Journal of the European Union C 235/6

Reference for a preliminary ruling from the Tribunalul Argeș (Romania) lodged on 4 May 2012 — Comisariatul Județean pentru Protecția Consumatorilor Argeș v SC Volksbank România SA, SC Volksbank România SA — Sucursala Pitești, Alin Iulian Matei, Petruța Florentina Matei

(Case C-236/12)

2012/C 235/12

Language of the case: Romanian

Referring court

Tribunalul Argeș

Parties to the main proceedings

Appellant: Comisariatul Județean pentru Protecția Consumatorilor Argeș

Respondents: SC Volksbank România SA, SC Volksbank România SA — Sucursala Pitești, Alin Iulian Matei, Petruța Florentina Matei

Question referred

Having regard to the fact that, in accordance with Article 4(2) of Directive 93/13/EEC, (1) assessment of the unfair nature of contractual terms must relate neither to the definition of the main subject-matter of the agreement nor to the adequacy [sic] of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language,

and

given that, under Article 2(2)(a) of Directive 2008/48/EC, (2) the definition provided in Article 3(g) of that directive of ‘the total cost of the credit to the consumer’, which includes all the fees which the consumer is required to pay in connection with the credit agreement, does not apply for the purposes of determining the subject-matter of a credit agreement secured by a mortgage,

can the concepts of ‘main subject-matter’ and/or of ‘price’, to which Article 4(2) of Directive 93/13/EEC refers, be interpreted as also covering, among the elements which make up the consideration owed to the credit institution, the global effective annual rate of a credit agreement, formed in particular of the interest rate, whether fixed or variable, the bank charges and other costs included and defined in the agreement?

(1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993, L 95, p. 29).

(2) Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008, L 133, p. 66).
EN Official Journal of the European Union C 114/22

Appeal brought on 14 May 2012 against the order of the General Court (Sixth Chamber Chamber) delivered on 2 March 2012 in Case T-594/11 H-Holding AG v European Commission

(Case C-235/12 P)

2013/C 114/32

Language of the case: German

Parties

Appellant: H-Holding AG (represented by: R. Závodný, advokát)

Other party to the proceedings: European Commission

The Court of Justice of the European Union (Seventh Chamber) dismissed the appeal by order of 28 February 2013 and ordered the appellant to bear its own costs.