ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 24/9

Appeal brought on 15 November 2013 by Intra-Presse against the judgment of the General Court (First Chamber) delivered on 16 September 2013 in Case T-437/11: Golden Balls Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-582/13 P)

2014/C 24/16

Language of the case: English

Parties

Appellant: Intra-Presse (represented by: P. Péters, advocaat, T. de Haan, avocat, M. Laborde, avocate)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Golden Balls Ltd

Form of order sought

The appellant claims that the Court should:

— annul the judgment of the General Court of the European Court of 16 September 2013 in Case T-437/11;

— refer the case back to the General Court of the European Union to rule on the action brought by Intra-Presse under Article 8(5) of Regulation No 207/2009 (1);

— order that the costs be reserved.

Pleas in law and main arguments

Appellant submits that the contested judgment should be annulled on the following grounds.

Firstly, the General Court infringed Article 8(1)(b) CTMR in defining the relevant public and in assessing the degree of conceptual similarity between marks by adding a requirement of ‘intellectual process of translation’, ‘begin by translating’ or ‘prior translation’. Secondly, the General Court infringed Article 8(5) CTMR by failing to carry out a global assessment and omitting to examine the relevance of the reputation of Appellant’s earlier mark and the existence of a possible link.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1
EN Official Journal of the European Union C 39/12

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 December 2013 — Criminal proceedings against Miguel M.

(Case C-627/13)

2014/C 39/19

Language of the case: German

Referring court

Bundesgerichtshof

Party to the main proceedings

Miguel M.

Question referred

Are medicinal products, as defined in Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, (1) which contain scheduled substances listed in Regulations (EC) No 273/2004 (2) and (EC) No 111/2005 (3) always excluded from the scope of those regulations in accordance with Article 2(a) of both those regulations, or is that to be presumed only where the medicinal products are compounded in such a way that the scheduled substances cannot be easily used or extracted by readily applicable or economically viable means?

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

(2) Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors (OJ 2004 L 47, p. 1).

(3) Council Regulation (EC) No 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors (OJ 2005 L 22, p. 1).
EN Official Journal of the European Union C 39/13

Request for a preliminary ruling from the Cour de cassation (France) lodged on 2 December 2013 — Jean-Bernard Lafonta v Autorité des marchés financiers

(Case C-628/13)

2014/C 39/20

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellant: Jean-Bernard Lafonta

Respondent: Autorité des marchés financiers

Question referred

Must Article 1(1) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (1) and Article 1(1) and (2) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards the definition and public disclosure of inside information and the definition of market manipulation (2) be interpreted as meaning that only information in respect of which it may be determined, with a sufficient degree of probability, that, once it is made public, its potential effect on the prices of the financial instruments concerned will be in a particular direction may constitute inside information?

(1) OJ 2003 L 96, p. 16.

(2) OJ 2003 L 339, p. 70.
EN Official Journal of the European Union C 61/3

Appeal brought on 27 November 2013 by British Telecommunications plc against the judgment of the General Court (Eighth Chamber) delivered on 16 September 2013 in Case T-226/09: British Telecommunications plc v European Commission

(Case C-620/13 P)

2014/C 61/05

Language of the case: English

Parties

Appellant: British Telecommunications plc (represented by: J. Holmes, Barrister, H. Legge QC)

Other parties to the proceedings: European Commission, BT Pension Scheme Trustees Ltd

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal as it relates to the first and second pleas of the appellant’s application before the General Court;

— uphold those pleas as well founded;

— set aside Commission Decision 2009/703/EC of 11 February 2009 (1); and

— grant the appellant its costs of the present appeal and of the application to the General Court.

Pleas in law and main arguments

The appellant puts forward three pleas in law in support of its appeal.

By its first ground of appeal, the appellant submits that in the judgment under appeal the General Court set out its own reasons, which are not contained in the Commission Decision, for disregarding certain special liabilities in its assessment of selectivity. The General Court thereby impermissibly sought to substitute its own reasoning for that of the Commission in assessing whether there was any selective advantage to the appellant.

By its second ground of appeal, the appellant submits that, in any event, the General Court’s own reasons contain errors of law because in disregarding the special liabilities: the legal standard the General Court applied was incorrect; and the reasons it relied upon were in each case either irrelevant from the legal perspective or distorted the clear sense of the evidence.

By its third ground of appeal, the appellant maintains that the General Court erred in law in its review of the Commission’s reasons for disregarding the special liabilities by upholding those reasons as legally relevant and sufficient to sustain the Commission Decision. The General Court’s review is inadequate. In some instances, it is unclear whether or not the General Court accepts the Commission’s reasoning and, if so, on what basis. In other instances, the General Court takes into account factors that are legally irrelevant and substitutes its own reasoning for that of the Commission.

(1) Commission Decision of 11 February 2009 concerning the State aid C-55/07 (ex NN-63/07, CP-106/06) implemented by the United Kingdom of Great Britain and Northern Ireland — Crown guarantee to BT (notified under document C(2009) 685).

OJ L 242, p. 21
EN Official Journal of the European Union C 45/19

Appeal brought on 27 November 2013 by Zucchetti Rubinetteria SpA against the judgment of the General Court (Fourth Chamber) delivered on 16 September 2013 in Case T-396/10 Zucchetti Rubinetteria v European Commission

(Case C-618/13 P)

2014/C 45/35

Language of the case: Italian

Parties

Appellant: Zucchetti Rubinetteria SpA (represented by: M. Condinanzi, P. Ziotti and N. Vasile, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment under appeal in so far as the General Court dismissed the action in Case T-396/10 with regard to the form of order seeking cancellation or reduction of the fine imposed on the applicant by Article 2 of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures);

— Give final judgment in the matter in accordance with Article 61 of the Statute of the Court of Justice of the European Union and cancel, or at least reduce, in the exercise of its unlimited jurisdiction, the fine imposed by the abovementioned Commission decision;

— In any event, order the Commission to pay the costs both of the present proceedings and of the proceedings in Case T-396/10.

Pleas in law and main arguments

Infringement of EU law with regard to the calculation of the fines and the assessment of the gravity of the infringement, contradictions and inadequate reasoning, as well as a failure by the General Court fully to exercise its power of review. In particular, infringement of Article 23(2) and (3) of Regulation No 1/2003 (1) and of the principles of personal responsibility, proportionality and equal treatment in the application of penalties in competition-law matters.

The appellant submits that, in the judgment under appeal, the General Court found the contested decision to be contradictory and unlawful in so far as it recognised that Zucchetti Rubinetteria SpA committed a less serious infringement than the multinational firms participating in the cartel, as it did not take part therein and was unaware of the extension of the agreement to markets other than the Italian market; however, the General Court did not draw from that the appropriate conclusions for the purposes of setting the fine. The appellant argues that the application of the same multipliers and the failure to take account of mitigating circumstances — with the consequent dismissal of the action, also in respect of cancellation or reduction of the fine imposed — thus amount to an infringement of the general principles mentioned above and of the provisions of points 25 and 29 of the Guidelines on the method of setting fines and of Article 23(2) of Regulation No 1/2003.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 3 December 2013 — Polska Izba Informatyki i Telekomunikacji v Prezes Urzędu Komunikacji Elektronicznej

(Case C-633/13)

(2014/C 71/11)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Polska Izba Informatyki i Telekomunikacji

Defendant: Prezes Urzędu Komunikacji Elektronicznej

Question referred

Must Article 13(1) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (1) be interpreted as meaning that, in the context of obligations relating to price controls, national regulatory authorities may impose on operators with significant market power an obligation consisting in a prohibition on the application of excessive voice call termination rates in the telephone network of such operators?

(1) OJ 2002 L 108, p. 7.
—

declare that the Hellenic Republic, — by not taking the necessary measures to ensure that (a) waste management at the Kiato landfill site is carried out without endangering human health and without harming the environment and (b) the abandonment, dumping or uncontrolled management of waste at said landfill site is prohibited, — by tolerating the operation of the said landfill site without agreed environmental conditions and a valid permit which comply with the prerequisites for the issue of such a permit and its content, and consequently not ensuring that only waste that has been subject to treatment is landfilled, the holder of the waste or the operator of the said landfill site not being able to show before or at the time of delivery that the waste in question can be accepted at that landfill site according to the conditions set out in the permit, and that it fulfils the acceptance criteria set out in Annex II, — by not ensuring that monitoring and control procedures during the operational phase meet the minimum legal requirements, has failed to fulfil its obligations under Articles 13, 23 and 36(1) of Directive 2008/98/EC (1) on waste and Article 6 (subparagraph (a)), Article 8, Article 9 (subparagaphs (a) (b) and (c)), Article 11(1) (subparagraph (a)) and Article 12 of Directive 99/31/EC (2) on the landfill of waste;
1.

Must the guarantee, that the transferee acquiring an undertaking in insolvency or a production unit of that undertaking will not take on liability for debts arising out of social security debts incurred before the award of the production unit or out of previous employment-related debts when the insolvency proceedings give rise to protection at least equivalent to that provided for in the Community directives, be considered to relate uniquely and exclusively to debts directly linked to employment contracts or employment relationships or, in the framework of overall protection of the rights of employees and the safeguarding of employment, must that guarantee be extended to employment-related or social security debts incurred before the award to a third party?
Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 19 November 2013 — F.E. Familienprivatstiftung Eisenstadt

(Case C-589/13)

(2014/C 71/05)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: F.E. Familienprivatstiftung Eisenstadt

Defendant authority: Unabhängiger Finanzsenat, Außenstelle Wien

Question referred

Is Article 56 EC (now Article 63 TFEU) to be interpreted as precluding a system for the taxation of the investment income and earnings from the disposal of holdings of an Austrian private foundation in the case where that system provides for a tax charge to be imposed on the foundation in the form of an ‘interim tax’ in order to ensure once-only national taxation only in the case where, on the basis of a double taxation convention, the recipient of donations from the private foundation is granted relief from the tax on capital gains which in principle is chargeable on donations?
4.

In the event that the answer to [Question 3] is that each Chamber and Division of the Council of State is recognised as having the power or the obligation to refer questions directly to the Court of Justice for a preliminary ruling, or in every case in which the Court of Justice has taken a position — especially if it has done so at a time subsequent to the plenary session of the Council of State — to the effect that the principle of law stated in the plenary session is not in conformity or not wholly in conformity with the correct interpretation of European Union law, may or must each Chamber and each Division of the Council of State, being ordinary courts applying European Union law and against whose decisions no appeal lies, immediately apply the correct interpretation of European Union law as provided by the Court of Justice or, instead, are they under an obligation, even in such cases, to make a reasoned order referring the decision on the appeal back to the plenary session of the Council of State, thereby deferring to the authority of the plenary session of the Council of State and to its discretion all assessment of the application of European Union law already declared binding by the Court of Justice?
2.

Must Article 12(3) of the Brussels IIa Regulation be interpreted as meaning that acceptance expressly or otherwise in an unequivocal manner includes also the situation in which the party who has not initiated proceedings makes a separate application for the initiation of proceedings in the same case but immediately on doing the first act required of him objects that the court lacks jurisdiction in the proceedings previously started on the application by the other party?
Action brought on 27 January 2014 — Kingdom of Spain v European Parliament and Council of the European Union

(Case C-44/14)

(2014/C 71/22)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: A. Rubio González, Agent)

Defendants: European Parliament and Council of the European Union

Form of order sought

The applicant claims that the Court should:

— annul Article 19 of Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 (1) establishing the European Border Surveillance System (Eurosur);

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

Pleas in law and main arguments

Infringement of Article 4 of the Schengen Protocol in conjunction with Article 5 thereof. Article 19 of the Eurosur Regulation establishes an ad hoc procedure for the participation of the United Kingdom and Ireland through cooperation agreements. It therefore establishes a procedure for the participation of those Member States distinct from that provided for in Article 4 of the Schengen Protocol, effectively placing the United Kingdom and Ireland in the position of a third country outside the European Union.

(1) OJ 2013 L 295, p. 11.
EN Official Journal of the European Union C 102/23

Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 5 February 2014 — Régie communale autonome du stade Luc Varenne v État Belge

(Case C-55/14)

2014/C 102/32

Language of the case: French

Referring court

Cour d’appel de Mons

Parties to the main proceedings

Applicant: Régie communale autonome du stade Luc Varenne

Defendant: État belge

Does the making available of the facilities of a sports installation used exclusively for footballing purposes, understood as being the right to use and exploit the football stadium playing surface (the pitch) and the players’ and referees’ changing rooms on an ad hoc basis for up to 18 days per season (a season starting on 1 July each calendar year and ending on 30 June the following year), constitute an exempt letting of immovable property for the purposes of Article 13B(b) of 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 (1) (Article 135(1)(l) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1)), (2) in so far as the party granting the right of use and exploitation:

— is fully entitled to confer identical rights on other natural or legal persons of its choice in respect of days other than the 18 days referred to above;

— has the right to access those facilities at any time, without the prior consent of the holder of the right of use and exploitation, in order, in particular, to satisfy itself of the proper use of the facilities and to pre-empt any damage, on the sole condition that it does not disrupt the smooth running of sports events;

— retains, in addition, a right of permanent control over access to those facilities, including during the period of their use by RFCT;

— seeks a flat-rate fee of EUR 1 750 per day for use of the playing surface, the changing rooms, the bar and the caretaking, surveillance and monitoring service for the facilities as a whole, it being understood that it has been agreed between the parties that, of the amount sought, 20% represents the right of access to the football pitch and 80% the consideration for various services connected with the maintenance, cleaning, upkeep (mowing, sowing, and so on) and regulatory compliance of the playing surface and ancillary services supplied by the party granting the right of use and exploitation (namely, RCA, the present appellant)?

(1) 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).
2.

If the answer to Question 1 is in the affirmative, in the assessment as to whether the effective tax burden for a non-resident is heavier than the tax burden for a resident, should a comparison be made between the Netherlands dividend tax withheld in respect of the non-resident and the Netherlands income tax payable by a resident, calculated in respect of the flat-rate income which, in the year in which the dividends were received, is attributable to the total holding of investment shares in Netherlands companies, or does European Union law require that a different standard of comparison be taken into account?
2.

Regarding the incompatibility of Article 10(1) and the end of the final subparagraph of Article 132(2) of Regulation No 73/2009, and the measures of EU law adopted on their basis, with the Act of Accession and European Union principles: a. Are the end of Article 10(1) of Regulation No 73/2009 (‘… taking into account any reductions applied under Article 7(1)’) and the end of the final subparagraph of Article 132(2) (‘… taking into account, from 2012, the application of Article 7 in conjunction with Article 10’), as well as Commission working document DS/2011/14/REV 2 and Commission Implementing Decision C(2012) 4391 final which were adopted on their basis, contrary to the Act of Accession, which does not prescribe the modulation of direct payments and the reduction of complementary national direct payments in the new EU Member States and/or the year in which equalisation of direct payments in the new and old EU Member States is presumed? b. Are Article 10(1) and the final subparagraph of Article 132(2) of Regulation No 73/2009, as well as Commission working document DS/2011/14/REV 2 and Commission Implementing Decision C(2012) 4391 final, inasmuch as, in accordance with their content and objectives, the modulation of direct payments and the reduction of complementary national direct payments are applied in 2012 in the new EU Member States, which receive considerably less support than the old EU Member States, contrary to principles of EU law, inter alia the principles of the protection of legitimate expectations, of fair competition and of non-discrimination, and to the objectives of the common agricultural policy, which are laid down in Article 39 TFEU, in particular the objective of increasing agricultural productivity? c. Does the amendment of the final subparagraph of Article 132(2) of Regulation No 73/2009 (‘taking into account, from 2012, the application of Article 7 in conjunction with Article 10’), which was carried out under the corrigendum procedure (OJ 2010 L 43, p. 7) (an amendment by which an alteration of a nontechnical nature was made, and the content of the provision was fundamentally amended as it was laid down that equalisation of direct payments in the new and old EU Member States was presumed in 2012), infringe principles of EU law, inter alia the principles of the protection of legitimate expectations, of legal certainty, of sound administration and of non-discrimination? d. Does the word ‘dydis’ [‘level’] used in Article 1c set out in point 27(b) of Chapter 6.A (‘Agriculture’) of Annex II to the Act of Accession have the same meaning as the word ‘lygis’ [‘level’] in the final subparagraph of Article 132(2) of Regulation No 73/2009?
—

declare that, by failing to take, within the prescribed periods, all the measures necessary to recover from the recipient the State aid declared illegal and incompatible with the internal market by Article 2(1) of Commission Decision 2013/435/EU of 2 May 2013 on State aid SA.22843 implemented by France in favour of Société Nationale Maritime Corse-Méditerranée and the Compagnie Méridionale de Navigation, (1) in not having annulled, within the prescribed periods, all the aid payments referred to in that Article 2(1) and in not having informed the Commission, within the prescribed period, of the measures taken to comply with that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 3, 4 and 5 of that decision;
2.

Is it significant for the answer to that question that it was not the intention of the competent institution to issue an E 101 certificate, yet for administrative reasons it consciously and deliberately used documents which, judging by their format and content, appear to be E 101 certificates, while the interested party believed, and was also reasonably entitled to believe, that he had received such a certificate?