ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 38/29

Action brought on 12 November 2015 — European Commission v Portuguese Republic

(Case C-583/15)

(2016/C 038/42)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Guerra Andrade and J. Hottiaux, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing to create its national electronic register of road transport undertakings and interconnecting it with the national electronic registers of the other Member States, the Portuguese Republic has failed to fulfil its obligations under Article 16(1) and (5) of Regulation (EC) No 1071/2009 (1) of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC.

— order Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 16(1) of Regulation No 1071/2009 provides that each Member State is to keep a national electronic register of road transport undertakings which have been authorised by the competent national authority to engage in the occupation of road transport operator.

Article 16(1) establishes that the data contained in the register, in particular the mandatory data referred to in Article 16(2), must be processed under the supervision of a public authority designated for that purpose. That data must be accessible to all the competent authorities of the Member State in question.

However, it is apparent from the answer given by the Portuguese State to the additional letter of formal notice that the Portuguese Administration has not yet succeeded in obtaining an agreement among the three national authorities involved in the system, namely the Autoridade Nacional de Segurança Rodoviária (National Road Safety Authority), the Autoridade para as Condições do Trabalho (Employment Conditions Authority) and the Direção-Geral da Administração da Justiça (Directorate-General for the Administration of Justice).

Accordingly, not only is there no national register, as individual registers run by three national authorities continue to operate, but the data in question are not accessible to the competent authorities of the Portuguese State.

It follows that the Portuguese State has failed to comply with Article 16(1) of Regulation No 1071/2009.

Under Article 16(5) of Regulation No 1071/2009, the Member States are required to take all necessary measures to ensure that the national electronic registers are interconnected and accessible throughout the European Union.

As it does not even have a national register, there can be no doubt that the Portuguese Administration has not taken the measures necessary to interconnect its national register (which it does not have) with other national registers.

That being the case, the Portuguese State has failed to comply with Article 16(5) of Regulation No 1071/2009.

(1) OJ 2009 L 300, p. 51.
EN Official Journal of the European Union C 38/29

Request for a preliminary ruling from the Rechtbank van eerste aanleg West-Vlaanderen, afdeling Brugge (Belgium) lodged on 9 November 2015 — Johannes Van der Weegen, Anna Pot v Belgische Staat

(Case C-580/15)

(2016/C 038/41)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg West-Vlaanderen, afdeling Brugge

Parties to the main proceedings

Applicants: Johannes Van der Weegen, Anna Pot

Defendant: Belgische Staat

Question referred

Does Article 21(5) of the 1992 Belgian Income Tax Code (WIB 1992), as amended by Article 170 of the Law of 25 April 2014 laying down various provisions, infringe the provisions of Articles 56 TFEU and 63 TFEU and Articles 36 and 40 of the EEA Agreement, inasmuch as the provision in question, although applicable without distinction to domestic and foreign service providers, requires compliance with conditions similar to those included in Article [2] of the Royal Decree implementing the 1992 Income Tax Code (KB/WIB 1992) which are de facto specific to the Belgian market and consequently amount to a serious obstacle to foreign service providers offering their services in Belgium?
EN Official Journal of the European Union C 48/10

Request for a preliminary ruling from the Tribunale di Varese (Italy) lodged on 9 November 2015 — Criminal proceedings against Mauro Scialdone

(Case C-574/15)

(2016/C 048/18)

Language of the case: Italian

Referring court

Tribunale di Varese

Criminal proceedings against

Mauro Scialdone

Questions referred

1. May EU law, and more particularly Article 4(3) TEU, in conjunction with Article 325 TFEU and Directive 2006/112/EC (1), which lay down for the Member States the duty of equal treatment so far as concerns policies relating to penalties, be interpreted as precluding the enactment of a provision of national law providing that the penal consequences of failure to pay VAT follow once a financial threshold is crossed greater than the threshold provided for in the case of failure to pay income tax?

2. May EU law, and more particularly Article 4(3) TEU in conjunction with Article 325 TFEU and Directive 2006/112/EC, which oblige the Member States to provide effective, dissuasive and proportionate penalties to protect the financial interests of the European Union, be interpreted as precluding the enactment of a national provision which exempts the defendant (whether a director, legal representative, person to whom responsibility for fiscal matters has been delegated or an accessory to the offence) from liability to punishment, if the entity with legal personality concerned has made late payment both of the tax itself and of the administrative penalties owed in connection with VAT, even though the tax assessment has already been made, criminal proceedings and indictment initiated, and the establishment of inter partes proceedings duly confirmed, but before trial proceedings have been declared opened, in a system that does not impose on that director, legal representative, or delegate and accessory to the offence any other penalty, not even an administrative penalty?

3. Must the concept of fraud governed by Article 1 of the PFI Convention be interpreted as encompassing cases of failure to pay or of partial or late payment of VAT and, consequently, does Article 2 of that Convention require the Member State to punish with a term of imprisonment failure to pay or partial or late payment of VAT in relation to sums in excess of EUR 50 000?

If the answer is in the negative, it will be necessary to determine whether the rule under Article 325 TFEU, which requires the Member States to provide penalties, including criminal penalties, which are dissuasive, proportionate and effective, must be interpreted as precluding national legislation which exempts from criminal and administrative liability the directors and legal representatives of legal persons, or the persons to whom the functions of those legal persons are delegated and persons who are accessories to the offence, for failure to pay or partial or late payment of VAT in relation to sums equivalent to three or five times the minimum threshold laid down in case of fraud, that is to say, EUR 50 000.

(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 48/10

Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 2 November 2015 — Georg Rolof, Markus Heimann v TUIfly GmbH

(Case C-561/15)

(2016/C 048/17)

Language of the case: German

Referring court

Amtsgericht Hannover

Parties to the main proceedings

Applicants: Georg Rolof, Markus Heimann

Defendant: TUIfly GmbH

The case was removed from the Register of the Court of Justice by order of the Court of 27 November 2015.
3.

In this regard, the Commission argues, first, that Article 218 (9) TFEU applies to positions to be adopted on the Union's behalf in a situation as the one at hand where the European Union has a status in the international organisation concerned, namely that of a Sector member which, in accordance with Article 3(2) of the ITU Constitution, provides the European Union certain rights of activities in the organisation.
1.

Is Article 1(3) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (1) (2002/584/JHA) to be interpreted as meaning that extradition for the purposes of prosecution is impermissible where there are strong indications that detention conditions in the issuing Member State infringe the fundamental rights of the person concerned and the fundamental legal principles as enshrined in Article 6 of the Treaty on European Union, or is it to be interpreted as meaning that, in such circumstances, the executing Member State can or must make the decision on the permissibility of extradition conditional upon an assurance that detention conditions are compliant? To that end, can or must the executing Member State lay down specific minimum requirements applicable to the detention conditions in respect of which an assurance is sought?
5.

If Question 4 is answered in the affirmative: Does the term ‘construction’ in Point 7(b) of Annex I to the EIA Directive presuppose a minimum length with regard to the road section in question? If so, must this involve a continuous section of road? If so, is the minimum length more than a continuous length of 2,6 kilometres or, where the lengths of multiple separate sections of road are to be added together, more than a total of 4,4 kilometres?
EN Official Journal of the European Union C 106/24

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Piemonte (Italy) lodged on 28 December 2015 — MB srl v Società Metropolitana Acque Torino (SMAT)

(Case C-697/15)

(2016/C 106/25)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Piemonte

Parties to the main proceedings

Applicant: MB srl

Defendant: Società Metropolitana Acque Torino (SMAT)

Question referred

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

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

Must Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) be interpreted as meaning that the expressions ‘main subject matter of the contract’ and ‘the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other’ cover a term in a credit agreement denominated in a foreign currency concluded between a seller or a supplier and a consumer, which was not the subject of individual negotiation, and which provides, in respect of the loan repayment instalments, that the debtor alone must bear the ‘currency risk’, that is to say the potential negative effect of an increase in the monthly repayment instalments caused by fluctuations in the exchange rates of the currency, which the consumer must bear as a consequence of concluding the loan agreement and the requirement to repay the amounts disbursed under the agreement in a currency other than the national currency of Romania?
EN Official Journal of the European Union C 326/6

Appeal brought on 23 July 2015 by Harper Hygienics S.A. against the judgment delivered by the General Court on 13 May 2015 in Case T-363/13, Harper Hygienics v European Union Intellectual Property Office — Clinique Laboratories (CLEANIC natural beauty)

(Case C-474/15 P)

(2016/C 326/08)

Language of the case: Polish

Parties

Appellant: Harper Hygienics S.A. (represented by: D. Rzążewska, radca prawny)

Other parties to the proceedings: European Union Intellectual Property Office and Clinique Laboratories, LLC

By order of the Court of Justice (Tenth Chamber) of 7 April 2016, the appeal was declared inadmissible in part and was dismissed as to the remainder.
EN Official Journal of the European Union C 270/13

Appeal brought on 4 June 2015 by The Royal County of Berkshire Polo Club Ltd against the judgment of the General Court (Ninth Chamber) delivered on 26 March 2015 in Case T-581/13: Royal County of Berkshire Polo Club v OHIM

(Case C-278/15 P)

(2016/C 270/17)

Language of the case: English

Parties

Appellant: Royal County of Berkshire Polo Club Ltd (represented by: J. Maitland-Walker, Solicitor)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

By order of 14 January 2016 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 98/25

Request for a preliminary ruling from the Rechtbank Den Haag zittingsplaats Haarlem (Netherlands) lodged on 13 January 2016 — K v Staatssecretaris van Veiligheid en Justitie

(Case C-18/16)

(2016/C 098/31)

Language of the case: Dutch

Referring court

Rechtbank Den Haag zittingsplaats Haarlem

Parties to the main proceedings

Applicant: K

Defendant: Staatssecretaris van Veiligheid en Justitie

Questions referred

Is Article 8(3) (a) and (b) of the Reception Directive (1) valid in the light of Article 6 of the Charter (2):

(1) in a situation where a third-country national is detained under Article 8(3)(a) and (b) of the Reception Directive and, under Article 9 of the Asylum Procedures Directive, (3) has the right to remain in a Member State until a decision on his asylum application has been made at first instance, and

(2) given the Explanation (OJ 2007 C 303, p. 17) that the limitations which may legitimately be imposed on the rights in Article 6 of the Charter may not exceed those permitted by the ECHR in the wording of Article 5(1)(f), and the interpretation by the European Court of Human Rights of the latter provision in, inter alia, the judgment of 22 September 2015, Nabil and Others v Hungary, 62116/12, that the detention of an asylum-seeker is contrary to the aforementioned Article 5(1)(f) if such detention was not imposed with a view to deportation?

(1) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013, L 180, p. 96).

(2) Charter of Fundamental Rights of the European Union (OJ 2007, C 303, p. 1).

(3) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013, L 180, p. 60).
2.

Must Article [14](1)(c) of Directive 2006/54/ЕC and Article 3(1)(c) of Directive 2000/78/EC, in conjunction with Articles 30, 47 and 52(1) of the Charter of Fundamental Rights, be interpreted as permitting, pursuant to Article 157(3) of the Treaty on the Functioning of the European Union, a national measure such as Article 21 of the Law on protection against discrimination (Zakon za zashtita ot diskriminatsia), read in conjunction with Article 106(1)(2) of the Civil Service Law (Zakon za darzhavnia sluzhitel), the provisions of which — in the circumstances described in the first question concerning the dismissal of a person employed in the public sector under a civil-service employment relationship (owing to abolition of a post on account of a reduction in a number of identical posts occupied by both men and women) — do not expressly lay down, as part of the right to dismiss staff, any selection obligations or criteria, which both administrative and legal practice permit only if the authority responsible for the dismissal made a discretionary decision to specify a procedure and criteria, in contrast to identical circumstances involving the dismissal of a public-sector worker employed under an employment-law relationship, for which selection obligations and criteria in respect of the dismissal are laid down by law as part of that authority’s right to dismiss staff?
1.

Must Article 56 of the Treaty on the Functioning of the European Union (‘the TFEU’) be interpreted as precluding a national measure in accordance with which the legislation of a Member State which, at the time of issue of a call for tenders for the award of a concession or of acceptance of a tender submitted in order to obtain such a concession, as the case may be, guarantees the theoretical possibility that any operator fulfilling the legal requirements — including an operator established in another Member State — may obtain the concession for the provision of non-liberalised online games of chance, by virtue either of a public call for tenders or of the submission of a tender, with the result that the Member State in question is not actually calling for tenders for the award of the concession and the service provider likewise, in practice, has no opportunity of submitting a tender, and yet the authorities of the Member State declare that the service provider infringed legal rules by providing the service without holding a licence based on the concession and impose on that provider the administrative penalty provided for in the legislation (temporary blocking of access and the imposition of a fine in the event of repeated infringements)?
1.

Should heading 9021 of the CN be interpreted as meaning that implant screws as described in 4 above, which are solely intended to be implanted in the human body for the treatment of fractures or the fixation of prostheses, may be classified thereunder?
1.

May a holding company which plays an active role in the management of certain affairs of its subsidiaries, or of the group of companies as a whole, but which does not pass on to its subsidiaries the cost of the services carried out in relation to its active holding activity or the corresponding VAT be regarded as a taxable person for the purpose of VAT in respect of those services?
—

Declare that the Hellenic Republic, by the adoption and retention in force of legislation which provides that a preferential inheritance tax rate for bequests of which the beneficiaries are non-profit-making bodies established in other Member States of the EU/EEA is subject to a condition of reciprocity, has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the EEA Agreement;
EN Official Journal of the European Union C 175/12

Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 14 March 2016 — Riksåklagaren v Zenon Robert Akarsar

(Case C-148/16)

(2016/C 175/14)

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicant: Riksåklagaren

Defendant: Zenon Robert Akarsar

Question referred

The question concerns the interpretation of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA (1)).

Can a Member State refuse to execute a European arrest warrant, which concerns the execution of a custodial sentence which was passed as a combined sentence for a number of offences, when one of those offences does not constitute an offence under the law of the executing Member State and it is not possible in the issuing Member State to order that the sentence be split?

The offence in question does not constitute such an offence covered by Article 2.2 of the Framework Decision in respect of which the requirement of double criminality cannot be applied.

(1) OJ 2002 L 190, p. 1.
EN Official Journal of the European Union C 165/7

Request for a preliminary ruling from the Tribunal de grande instance de Lyon (France) lodged on 19 February 2016 — Jean-Philippe Lahorgue v Ordre des avocats du barreau de Lyon, Conseil national des barreaux ‘CNB’, Conseil des barreaux européens ‘CCBE’, Ordre des avocats du barreau de Luxembourg

(Case C-99/16)

(2016/C 165/08)

Language of the case: French

Referring court

Tribunal de grande instance de Lyon

Parties to the main proceedings

Applicant: Jean-Philippe Lahorgue

Defendants: Ordre des avocats du barreau de Lyon, Conseil national des barreaux ‘CNB’, Conseil des barreaux européens ‘CCBE’, Ordre des avocats du barreau de Luxembourg

Question referred

Is the refusal to issue a secure router for accessing the Private Virtual Network for Lawyers (RPVA) to a lawyer duly registered at the Bar of a Member State in which he wishes to practise his profession as a free provider of services contrary to Article 4 of Directive 77/249/EC, (1) on the basis that it constitutes a discriminatory measure which could impede the practice of his profession as a free provider of services?

(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).
EN Official Journal of the European Union C 175/11

Request for a preliminary ruling from the Juzgado de Primera Instancia No 60 de Madrid (Spain) lodged on 29 February 2016 — Abanca Corporación Bancaria S.A. v Juan José González Rey and Others

(Case C-120/16)

(2016/C 175/12)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 60 de Madrid (Spain)

Parties to the main proceedings

Applicant: Abanca Corporación Bancaria S.A.

Defendants: Juan José González Rey, María Consuelo González Rey and Francisco Rodríguez Alonso

Question referred

Is the use of an agreed remunerative interest rate in a situation in which default interest is applicable in accordance with Directive 93/13 (1) or, on the contrary, does it presuppose an amendment of the contract which is not permitted under EU case-law?

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

Does the decision of the general shareholders’ meeting of COMPLEXUL ENERGETIC OLTENIA SA — adopted with the vote of the Romanian state, represented by the Ministerul Economiei — Departamentul pentru energie, which, as a shareholder, owns 77,17 % of that company’s share capital — by which it was agreed to extinguish SC ELECTROCENTRALE GRUP SA’s debt, totalling RON 28 709 475,13, to COMPLEXUL ENERGETIC OLTENIA SA, by way of transfer of an asset in lieu of payment, consisting of property registered under No 70301 in the land register for the municipality of Chișcani, Brăila district, and by which it was agreed at the same that ELECTROCENTRALE SC GRUP SA would be paid the difference between the market value of the asset and the sum owed to COMPLEXUL ENERGETIC OLTENIA SA, constitute State aid within the meaning of Article 107 of the Treaty on the Functioning of the European Union, that is to say: (i) does it constitute a measure financed by the State or through State resources, (ii) is it selective in nature, and (iii) may it affect trade between the Member States?