ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 161/16

Action brought on 4 April 2017 — European Commission v Portuguese Republic

(Case C-170/17)

(2017/C 161/20)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by N. Yerrell and P. Costa de Oliveira, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

1. Declare that, by issuing special national driving licences for driving vehicles of the AM harmonized category, the Portuguese Republic failed to fulfil its obligations under Article 4(1) and (2) and Article 7(2)(a) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences. (1)

2. Declare that, by failing to ensure that a person holds one driving licence only, the Portuguese Republic failed to fulfil its obligations under Article 7(5)(b) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences.

3. Order Portuguese Republic to pay the costs.

Pleas in law and main arguments

As regards the obligations of the Portuguese Republic under Article 4(1) and (2) and Article 7(2)(a) and under Article 7(5)(b) of the Directive, the Commission considers that the Portuguese Republic has not taken the necessary measures before expiry of the period laid down in the reasoned opinion. Moreover, the Portuguese administration, by stating in its letter of 15 December 2016 that it will carry out future legislative amendments in this respect, itself acknowledges that it has not taken such measures.

(1) OJ 2006, L 403, p. 18.
1.

Is a national statutory monopoly scheme in respect of games of chance to be regarded as coherent, within the meaning of Article 56 TFEU et seq., where — on the basis that (a) the facts can be established and assessed by reference to the evidence provided by public bodies and private individuals who are parties to the proceedings, as well as evidence that is a matter of public knowledge (see, in that regard, Case C-685/15); and (b) the legal analysis of other national courts which did not base themselves on an autonomous assessment of coherence is not binding (see, in that regard, Case C-589/16) — judicial proceedings which, taking account of the abovementioned provisos, are thus presumed to be in compliance with the principle of fairness under Article 6 ECHR and Article 47 of the Charter of Fundamental Rights of the European Union, established the essential points of the context to which that statutory scheme belongs by finding that: — gambling addiction does not represent a societal problem justifying State intervention; — the playing of prohibited games of chance does not appear to be a criminal act, but a mere (albeit frequent) cause of trouble involving police involvement in an administrative context; — annual State income from games of chance exceeds EUR 500 million (= 0,4 % of the overall State budget); and — the advertising measures undertaken by licensees also seek principally to entice persons who have not previously played games of chance to do so?
3.

Does Article 56 EC (now Article 63 TFEU) mean that an investment fund established outside the Netherlands cannot be refused a refund of Netherlands dividend tax which was withheld on dividends which it received from corporate bodies established in the Netherlands, on the ground that it does not distribute the proceeds of its investments in full to its shareholders or participants on an annual basis at the latest in the eighth month following the end of the financial year, even if, in the country in which that investment fund is established, under the legislation there applicable, the proceeds of its investments, to the extent to which they are not distributed, (a) are deemed to have been distributed, and/or (b) are taken into account in the tax levied in that country on the shareholders or participants as though those profits had been distributed, whereas such a refund is granted to a fiscal investment institution established in the Netherlands, which, subject to the withholding of Netherlands dividend tax, distributes the proceeds of its investments in full to its shareholders or participants on an annual basis?
2.

Does the exclusive right granted to Santa Casa da Misericórdia de Lisboa by Decree-Law No 322/91 of 26 August 1991, as amended by Decree-Law No 469/99 of 6 November 1999, by Decree No 12790 of 30 November 1926, by Decree-Law No 40397 of 24 November 1955, by Decree-Law No 84/85 of 28 March 1985, as amended and [republished] by Decree-Law No 317/2002 of 17 December 2002 and Decree-Law No 282/2003 of 8 November 2003, amount to an infringement of the principles and economic freedoms laid down in the Treaty?
EN Official Journal of the European Union C 213/15

Request for a preliminary ruling from the Verwaltungsgericht Minden (Germany) lodged on 25 January 2017 — Daher Muse Ahmed v Bundesrepublik Deutschland

(Case C-36/17)

(2017/C 213/18)

Language of the case: German

Referring court

Verwaltungsgericht Minden

Parties to the main proceedings

Applicant: Daher Muse Ahmed

Defendant: Bundesrepublik Deutschland

By order of 5 April 2017, the Court of Justice of the European Union (Third Chamber) ruled that the provisions and principles of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (1) which govern, directly or indirectly, the time limits for lodging an application for a take-back are not applicable in a situation, such as that at issue in the main proceedings, in which a third-country national has lodged an application for international protection in one Member State after being granted the benefit of subsidiary protection by another Member State.

(1) OJ 2013 L 180, p. 31.
EN Official Journal of the European Union C 231/5

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 31 March 2017 — Land Nordrhein-Westfalen v Dirk Renckhoff

(Case C-161/17)

(2017/C 231/06)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Land Nordrhein-Westfalen

Defendant: Dirk Renckhoff

Question referred

Does the inclusion of a work — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute a making available of that work to the public within the meaning of Article 3(1) of Directive 2001/29/EC (1) if the work is first copied onto a server and is uploaded from there to that person’s own website?

(1) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L 167, p. 10.
—

Give a final judgment in the matter that is the subject of this appeal and hold that the General Court was wrong in law to decline jurisdiction and order the respondent in case T-193/16 to pay the costs of the appellant in respect of the order of the General Court and of the Court of Justice of the European Union in this appeal;
(7)

If the answer to question 1 is in the negative, the answer to question 4 is in the affirmative and the answer to question 6 is in the negative, does Article 7(1) of Directive 2003/88 preclude a provision such as that contained in Article 122(3)(d) of Law No 272/2004 in a situation in which that law gives the employer discretion to decide whether to authorise separation from the minor during leave and, if so, is the inability de facto to take leave as a result of the application of that provision of the law an infringement of EU law that meets the conditions for the worker to be entitled to compensation? If so, must such compensation be paid by the State for infringement of Article 7 of that directive or by the public body, as employer, which has not provided for separation from the assisted minor during the period of leave? In that situation, must the worker, in order to be entitled to compensation, have requested permission to leave the minor and the employer have withheld permission?
1.

(a) Is Article 7(1) and (7) of Directive 2014/40/EU (1) in conjunction with Article 7(14) of Directive 2014/40/EU invalid on the ground of breach of the principle of legal certainty because it requires Member States to prohibit the placing on the market of particular tobacco products even though it is not clear precisely which of those tobacco products are to be prohibited from as early as 20 May 2016 and which only from 20 May 2020? (b) Is Article 7(1) and (7) of Directive 2014/40/EU in conjunction with Article 7(14) of Directive 2014/40/EU invalid on the ground of breach of the principle of equal treatment because it differentiates, as regards the prohibitions to be adopted by Member States, on the basis of sales volumes, without any valid reason for doing so? (c) Is Article 7(1) and (7) of Directive 2014/40/EU invalid on the ground of breach of the principle of proportionality and/or infringement of Article 34 TFEU because it requires Member States to prohibit, from as early as 20 May 2016, the placing on the market of tobacco products with a characterising flavour whose Union-wide sales volumes represent less than 3 % in a particular product category? (d) If the answers to Question 1(a) to 1(c) are in the negative, how is the term ‘product category’ in Article 7(14) of Directive 2014/40/EU to be construed? Must assignment to ‘product categories’ be based on the type of characterising flavour, on the type of (flavoured) tobacco product, or on a combination of both criteria? (e) If the answers to Question 1(a) to 1(c) are in the negative, how is it to be ascertained whether the 3 % limit in Article 7(14) of Directive 2014/40/EU has been reached, in the absence of any official and publicly accessible figures and statistics in that regard?
EN Official Journal of the European Union C 249/16

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 20 March 2017 — Manuela Maturi and Others v Fondazione Teatro dell’Opera di Roma

(Case C-142/17)

(2017/C 249/25)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicants: Manuela Maturi, Laura Di Segni, Isabella Lo Balbo, Maria Badini, Loredana Barbanera

Defendant: Fondazione Teatro dell’Opera di Roma

Question referred

Is the national legislation referred to in Article 3(7) of Decree Law No 64 of 30 April 2010, converted into Law No 100 of 29 June 2010, according to which ‘for workers in the performing arts belonging to the category of dancers, the retirement age is fixed for men and women at the forty-fifth year of chronological age, with the use, for workers to whom the contributory or mixed system applies in full, of the transformation coefficient referred to in Article 1(6) of the Law of 8 August 1995, No 335, relative to the higher age. For the two years following the date of entry into force of this provision, the workers referred to in this paragraph employed on contracts of indefinite duration, who have reached or passed the retirement age, are afforded the option, renewable annually, of remaining in service. This option must be exercised through a formal application to be presented to the ENPALS within two months of the date of entry into force of this provision, or at least three months before pension rights are fully vested, without prejudice to the maximum retirement age of forty-seven years for women and fifty-two for men’, contrary to the principle of non-discrimination on grounds of sex, as laid down in Directive 2006/54 (1) and in the Charter of Fundamental Rights of the European Union (Article 21)?

(1) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).
(a)

that an adult, who is also a national of a third country, loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, on the ground that, for an uninterrupted period of 10 years, that person had his or her principal residence abroad and outside the European Union, although there are possibilities for interrupting that 10-year period;
EN Official Journal of the European Union C 269/8

Request for a preliminary ruling from the Tatabányai Törvényszék (Hungary) lodged on 26 May 2017 — Éva Nothartová v József Boldizsár Sámson

(Case C-306/17)

(2017/C 269/11)

Language of the case: Hungarian

Referring court

Tatabányai Törvényszék

Parties to the main proceedings

Applicant: Éva Nothartová

Defendant: József Boldizsár Sámson

Question referred

Where there is a counterclaim arising from a contract or facts different from those on which the claim is based, for the purposes of determining jurisdiction to hear and determine the counterclaim:

(a) Does only Article 8(3) of Regulation (EU) No 1215/2012 (‘the Brussels Ia Regulation’) (1) apply because only that provision concerns the counterclaim, or

(b) Does Article 8(3) of the Brussels Ia Regulation refer solely to a counterclaim arising from the same contract or facts on which the claim is based, so that that regulation does not apply to a counterclaim which does not arise from the same contract or facts on which the claim is based, and for this reason must it be determined, in accordance with the other rules of jurisdiction under the Brussels Ia Regulation, that the court with jurisdiction to hear and determine the claim also has jurisdiction to hear and determine the counterclaim?

(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).
EN Official Journal of the European Union C 256/6

Request for a preliminary ruling from the Juzgado de lo Social No 2, Cádiz (Spain) lodged on 12 May 2017 — Moisés Vadillo González v Alestis Aerospace, S.L.

(Case C-252/17)

(2017/C 256/05)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 2, Cádiz

Parties to the main proceedings

Applicant: Moisés Vadillo González

Defendant: Alestis Aerospace, S.L.

Questions referred

1. Does Directive 2010/18/EU (1) preclude an interpretation of Article 37.4 ET (leave of absence of an hour every day until the child reaches nine months of age) to the effect that, regardless of the sex of either parent, such leave is not be granted to the person applying for it if the other parent is unemployed?

2. Does Article 3 of Directive 2006/54/EC, (2) which seeks to guarantee full equality between men and women in their working lives, preclude an interpretation of the said Article 37.4 ET to the effect that, if the male parent is working, he has no entitlement to such leave if his wife and fellow parent is unemployed?

(1) Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC

OJ 2010 L 68, p. 13

(2) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)

OJ 2006 L 204, p. 23
2.

Is the reference to ‘cash benefits’ in article 11(2) of the regulation to be interpreted as referring only to a period during which a claimant is in actual receipt of cash benefits, or does it mean any period during which a claimant is covered for a cash a benefit in the future, whether or not that benefit has been claimed at the time of application for family benefit?
1.

Having regard to Article 3(3) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, [p. 12]) and to the Nolan judgment (C-583/10, EU:C:2012:638), does the Court of Justice have jurisdiction to answer questions referred for a preliminary ruling by the courts of the Netherlands concerning the interpretation of certain provisions of that directive in proceedings relating to the right of residence of members of the family of sponsors who have Netherlands nationality, if that directive has been declared to be directly and unconditionally applicable under Netherlands law to those family members?
EN Official Journal of the European Union C 283/15

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 8 May 2017 — Legatoria Editoriale Giovanni Olivotto (LEGO) SpA v Gestore dei servizi energetici (GSE) SpA and Others

(Case C-242/17)

(2017/C 283/21)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Legatoria Editoriale Giovanni Olivotto (LEGO) SpA

Respondents: Gestore dei servizi energetici (GSE) SpA, Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Ministero dello Sviluppo Economico, Ministero delle Politiche Agricole e Forestali

Questions referred

1. Does EU law, and more specifically Article 18(7) of Directive 2009/28/EC, (1) in conjunction with Commission Decision 2011/438/EU of 19 July 2011, (2) preclude national provisions, such as the Ministerial Decree of 23 January 2012, and in particular Articles 8 and 12 thereof, which impose specific requirements that are both different from and more extensive than the requirements which are satisfied by signing up to a voluntary scheme which is the subject of a decision of the European Commission adopted in accordance with Article 18(4) of Directive 2009/28/EC?

2. If the answer to Question (a) is in the negative, must economic operators which are involved in the product supply chain, even though their role is merely that of a trader or intermediary and they do not possess physical availability of the product in question, be held to be subject to the provisions of EU law cited in Question (a)?

(1) Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

(2) Commission Implementing Decision of 19 July 2011 on the recognition of the ‘International Sustainability and Carbon Certification’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council (OJ 2011 L 190, p. 79).
I.

Misapplication and/or erroneous application of Articles 1134 and 1135 of the Belgian Civil Code in respect of the binding nature and execution in good faith of contracts. Misapplication and/or erroneous application of Articles 1156, 1157 and 1161 of the Belgian Civil Code in respect of the interpretation of contracts. Misapplication and/or erroneous application of the principles of EU law in respect of the binding nature of contracts, good faith in the performance and interpretation of contracts, legal certainty. By rejecting the third plea in law, the contested judgment infringed the rules of the Belgian Civil Code and EU law as regards the binding nature of the contracts, in that it failed to recognise the mutually binding nature of the clause set out on page 47 of the Amendment to the Ecolink+ contract and disregarded the fact that the reference contained therein to a methodology annexed to the contract was not referring to the methodology proposed by Meta and sent to the Commission on 21.12.2009.
6.

(a) Must Article 1(2) of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment, in conjunction with point 13(a) of Annex II to that directive, read, where appropriate, in the light of the Espoo and Aarhus Conventions, be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and 2 nuclear power stations? (b) If the answer to the question in point (a) is in the affirmative, must Articles 2 to 8 and 11 of Directive 2011/92/EU and Annexes I, II and III to that directive be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations? (c) Does the answer to the questions in points (a) and (b) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015? (d) If the answer to the question set out in point (a) is in the affirmative, must Article 2(4) of Directive 2011/92/EU be interpreted as permitting an exemption for the postponement of the deactivation of a nuclear power station from the application of Articles 2 to 8 and 11 of Directive 2011/92/EU for overriding reasons of public interest linked with the security of the country’s electricity supply?
1.

Must [CN] subheading 7307 19 10 (1) be interpreted as including fittings of spheroidal graphite cast iron which have the characteristics of the fittings at issue in the main proceedings, if it appears from their objective characteristics that their material is essentially different from malleable cast iron because the malleability of spheroidal graphite cast iron does not result from appropriate heat treatment and because the graphite in spheroidal graphite cast iron has a different shape to the graphite in malleable cast iron, namely, that of spheroidal graphite instead of temper carbon?
2.

Must the plainness and intelligibility of a contractual term, within the meaning of Article 4(2) of Directive 93/13, be understood to mean that the term must provide only for the grounds for its conclusion in the contract and its method of operation, or must it also provide for all the possible consequences of the term as a result of which the price to be paid by the consumer may vary, such as for example, foreign exchange risk?
3.

Are ‘non-profit organisations or associations’ within the meaning of Article 10(h) of Directive 2014/24/EU those whose mission is fulfilled in the achievement of tasks in the public good, which do not operate with a view to making a profit and which reinvest any profits in order to realise the mission of the organisation?