ddrg/super_eurlex huggingface dataset:
Request for a preliminary ruling from the Amtsgericht Kassel Zweigstelle Hofgeismar (Germany) lodged on 27 April 2018 — Petra Breyer, Heiko Breyer v SUNDAIR GmbH

(Case C-292/18)

(2019/C 93/25)

Language of the case: German

Referring court

Amtsgericht Kassel Zweigstelle Hofgeismar

Parties to the main proceedings

Applicant: Petra Breyer, Heiko Breyer

Defendant: Sundair GmbH

By order of 6 December 2018, the Court ruled:

Article 3(5) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in conjunction with Article 2(a) thereof, must be interpreted as meaning that an undertaking, such as that at issue in the main proceedings, which had lodged an application for an operating licence which was not issued to it at the time for the performance of scheduled flights cannot fall within the scope of that regulation, so that the passengers concerned have no right to compensation under Article 5(1)(c) and Article 7(1) of the regulation.
3.

Does EU law, in particular Article 9 of Directive 2000/78/EC, (1) preclude an arrangement which cancels a right to compensation for age-related discriminatory payment after two months if: — the time limit starts with the delivery of the judgment of 8 September 2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560 although the person concerned is not covered by the Bundesangestelltentarifvertrag (Federal Collective Agreement for contractual employees), but his personal situation is the same as in the judgment of 19 June 2014, Specht and Others (C-501/12 to C-506/12, C-540/12 and C-541/12, EU:C:2014:2005); — the aforementioned judgment can be obtained from the officials and judges concerned (employees) only from general public sources; — the employers have denied transferability to officials following the delivery of the abovementioned judgment, thereby denying the existence of age discrimination, whereby that legal opinion has also been communicated externally, at least partially; — the case-law of the administrative courts at first instance has, for the most part, denied the existence of age discrimination within the time limit referred to and also subsequently, until delivery of the judgment in Specht and Others; — the case-law of the higher courts did not exist within the time limit and the first decision at highest instance was only taken following the delivery of the judgment in Specht and Others; — in the civil service or judicial relationship (employment relationship) exclusion periods apply only to the reimbursement of special costs and such periods are not shorter than six months; — Rights to salary (remuneration) are subject to a three-year limitation period, starting from the end of the year in which the right has become due and the beneficiary is aware of or ought to be aware of the right, or a limitation period of ten years runs; — national rights to salary (remuneration), which are not legally fixed in a timely manner, i.e. within the financial year for which it is sought, are to be asserted?
Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 4 September 2018 — Solvay Chemicals GmbH v Federal Republic of Germany

(Case C-561/18)

(2019/C 103/07)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Solvay Chemicals GmbH

Defendant: Federal Republic of Germany

By order of 6 February 2019, the Court (First Chamber) ruled as follows:

The second subparagraph of Article 49(1) of Commission Regulation (EU) No 601/2012 of 21 June 2012 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council (1) and point 20(B) of Annex IV to that regulation are invalid in so far as they systematically include the carbon dioxide (CO2) transferred to another installation for the production of precipitated calcium carbonate in the emissions of the installation for production of soda ash, regardless of whether that CO2 is released into the atmosphere.

(1) OJ 2012 L 181, p. 30.
1.

Do Articles 184 to 187 of the 2006 VAT Directive (1) preclude a national adjustment regime for capital goods which provides for an adjustment spread over a number of years, whereby in the year the goods enter into use — which year is moreover the first adjustment year — the total amount of the initial deduction for that capital good is adjusted (revised) in a single step, if, upon the entry into use thereof, it turns out that that initial deduction deviates from the deduction which the taxable person is entitled to apply on the basis of the actual use of the capital good?
2.

Are Articles 56, 57 and 52 of the Treaty on the Functioning of the European Union, the case-law of the Court of Justice on gambling and betting services, particularly the judgments in Gambelli (Case C-243/01), Placanica (Case C-338/04), Costa and Cifone (Joined Cases C-72/10 and C-77/10) and Laezza (Case C-375/14), and on tax discrimination, particularly the judgments in Lindman (Case C-42/02), Commission v Spain (Case C-153/08) and Blanco and Fabretti (Joined Cases C-344/13 and C-367/13), and the principles of equal treatment and non-discrimination under EU law, having regard also to the judgment of the Italian Constitutional Court of 23 January 2018, to be interpreted as precluding national legislation, such as the Italian legislation at issue, which makes national intermediaries transmitting gambling data on behalf of bookmakers established in a different EU Member State, and particularly those sharing the characteristics of the company Stanleybet Malta Ltd, and not the national intermediaries transmitting gambling data on behalf of State-licensed bookmakers involved in the same activity, liable to the single tax on betting and pools provided for in Articles 1 to 3 of Legislative Decree No 504 of 23 December 1998, as amended by Article 1(66)(b) of the Stability Law 2011?
Official Journal of the European Union

Appeal brought on 27 October 2018 by Adis Higiene, S.L. against the order of the General Court (Fourth Chamber) delivered on 10 August 2018 in Case T-309/18 Adis Higiene v EUIPO — Farecla Products (G3 Extra Plus)

(Case C-669/18 P)

(2019/C 131/22)

Language of the case: Spanish

Parties

Appellant: Adis Higiene, S.L. (represented by: M.J. Sanmartín Sanmartín, lawyer)

Other party to the proceedings: European Union Intellectual Property Office

By order of 27 February 2019, the Court of Justice (Sixth Chamber) dismissed the appeal and ordered Adis Higiene, S.L. to pay its own costs.
Official Journal of the European Union

Request for a preliminary ruling from the Judecătoria Orăștie (Romania) lodged on 20 November 2018 — EV v Inspectoratul General al Poliției Române-Brigada Autostrăzi și misiuni speciale — Biroul de Poliție Autostrada A1 Râmnicu Vâlcea — Deva (IGPR)

(Case C-723/18)

(2019/C 246/03)

Language of the case: Romanian

Referring court

Judecătoria Orăștie

Parties to the main proceedings

Applicant: EV

Defendant: Inspectoratul General al Poliției Române-Brigada Autostrăzi și misiuni speciale — Biroul de Poliție Autostrada A1 Râmnicu Vâlcea — Deva (IGPR)

By order of 8 May 2019, the Court of Justice of the European Union (Sixth Chamber) declared that it manifestly lacks jurisdiction to answer the questions referred by the Judecătoria Orăștie (Romania) by decision of 5 November 2018.
—

A literal interpretation does not lead either to the conclusion that Article 8(3) of Regulation 207/2009 applies only to identical marks. It is therefore enough if the signs at issue coincide in elements in which the earlier mark’s distinctive character essentially consists. On this basis the proper test for examining the conflicting marks under the Article 8(3) of Regulation 207/2009 is whether the EUTM application reproduces the essential elements of the earlier mark in such a way as to make it evident that the applicant is misappropriating the legitimate proprietor’s rights on its mark. In fact, the disloyal agent would be in a position to prevent not only any subsequent registration of the earlier mark by the original proprietor within the EU — but indeed any use thereof by the principal within the EU.
4.

Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device which systematically improves the performance of the vehicle emission control system during type-approval procedures in order to comply with the emission limits laid down by that regulation, and thus obtain the approval of those vehicles, cannot fall within the scope of the exception to the prohibition on such devices laid down in that provision, which relates to the protection of the engine against damage or accident and the safe operation of the vehicle, even if such a device helps to prevent the ageing or clogging up of the engine.
Official Journal of the European Union

Appeal brought on 19 December 2018 by Haskovo Chamber of Commerce and Industry against the judgment of the General Court (Eighth Chamber) delivered on 25 October 2018 in Case T-122/17: Devin v EUIPO — Haskovo

(Case C-800/18 P)

(2019/C 295/03)

Language of the case: English

Parties

Appellant: Haskovo Chamber of Commerce and Industry (represented by: I. Pakidanska and D. Dimitrova, advokati)

Other parties to the proceedings: Devin AD, European Union Intellectual Property Office

By order of 11 July 2019 the Court of Justice (Ninth Chamber) held that the appeal is dismissed as in part manifestly inadmissible and in part manifestly unfounded and that Haskovo Chamber of Commerce and Industry shall bear its own costs.
Appeal brought on 25 January 2019 by Prosegur Compañía de Seguridad, S.A. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-406/11 Prosegur Compañía de Seguridad v Commission

(Case C-55/19 P)

(2019/C 112/40)

Language of the case: Spanish

Parties

Appellant: Prosegur Compañía de Seguridad, S.A. (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, abogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant submits that the Court should:

— Set aside the judgment of the General Court of 15 November 2018;

— Uphold the application for annulment and definitively annul the contested decision; and

— Order the European Commission to pay the costs.

Grounds of appeal and main arguments

On 15 November 2018, the General Court gave judgment in Case T-406/11, Prosegur Compañía de Seguridad v European Commission, (1) against which this appeal is brought. The judgment dismissed the appellant’s action against the European Commission’s decision of 12 January 2011, (2) on ‘financial goodwill’ regulated by Article 12.5 of the Spanish Ley de Impuesto sobre Sociedades (Law on Corporation Tax).

In support of its appeal, the appellant relies on a single ground of appeal, alleging that, in the judgment under appeal, the General Court erred in law in its interpretation of Article 107(1) of the Treaty on the Functioning of the European Union (TFEU), in relation to the concept of ‘selectivity’.

In particular, it is submitted that the General Court erred:

— In determining the reference system at the first stage of the selectivity analysis;

— In determining the objective forming the basis for comparing the separate legal and factual situations at the second stage of the selectivity analysis;

— Consequently, the General Court also erred in the attribution of the burden of proof and the application of the principle of proportionality;

— In the alternative, in its examination relating to the supposed lack of proof of a causal link between the companies’ inability to merge abroad and the acquisition of holdings abroad; and

— In the alternative, in ruling out the severability of the measure according to the control percentage;

— In addition to maintaining a legally incorrect line of reasoning, the General Court substituted its own reasoning for that of the Commission’s decision in relation to a number of the abovementioned points, thus giving rise to further errors of law.

(1) Judgment of 15 November 2018, Prosegur Compañía de Seguridad v Commission (T-406/11, not published, EU:T:2018:793).

(2) Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).
Official Journal of the European Union

Appeal brought on 25 January 2019 by Council of the European Union against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 15 November 2018 in Case T-316/14: Kurdistan Workers’ Party (PKK) v Council

(Case C-46/19 P)

(2019/C 103/18)

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: B. Driessen, S. Van Overmeire, Agents)

Other parties to the proceedings: Kurdistan Workers' Party (PKK), European Commission, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant claims that the Court should:

— set aside the contested judgment of the General Court;

— give final judgment in the matters that are the subject of this appeal and to dismiss PKK's application; and

— order the PKK to pay the costs of the Council arising from the present appeal and from Case T-316/14.

Pleas in law and main arguments

The Council submits that the General Court erred in the contested judgment on the following points:

— first plea: the General Court wrongly characterised the contested decisions as purely Article 1(6) decisions (1);

— second plea: the General Court wrongly concluded that the U.S. decisions cannot serve as a basis for the initial listing;

— third plea: the General Court wrongly found that the Council had failed to explain why it considered the U.S. decisions and the Order of the UK Home Secretary to be a decision of a competent authority within the meaning of Article 1(4) of CP931;

— fourth plea: the General Court wrongly applied the Court of Justice's LTTE (2) judgment, point 55, to the case at hand;

— fifth plea: the General Court wrongly applied LTTE, point 71 to the case at hand;

— sixth plea: the General Court wrongly applied Article 1(4) of CP931 and point 55 of the LTTE judgment;

— seventh plea: the General Court wrongly held that the Council could not respond to the PKK's letter in its own letter of 27 March 2015.

(1) Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001, L 344, p. 93).

(2) Case C-599/14 P, Council v. LTTE, EU:C2017:583
Appeal brought on 1 February 2019 by the Republic of Lithuania against the judgment of the General Court (Fourth Chamber) delivered on 22 November 2018 in Case T-508/15 Republic of Lithuania v European Commission

(Case C-79/19 P)

(2019/C 131/32)

Language of the case: Lithuanian

Parties

Appellant: Republic of Lithuania (represented by: R. Krasuckaitė)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court in Case T-508/15 (1) (‘the judgment under appeal’) in so far as, in that judgment, the General Court dismissed the action for annulment of European Commission Implementing Decision (EU) 2015/1119 of 22 June 2015;

— annul European Commission Implementing Decision (EU) 2015/1119 of 22 June 2015 (2) or refer the judgment under appeal back to the General Court for review;

— order the European Commission to pay the costs.

Grounds of appeal and main arguments

The Republic of Lithuania seeks annulment of the judgment of the General Court in Case T-508/15 on the following legal basis:

(1) The General Court erred in law in finding, in paragraph 83 of the judgment under appeal, that the derogation provided for in Article 33m(1) of Regulation No 1257/1999 (3) relates only to the age of the persons transferring the farm, since that provision is clearly related to the milk quota as evidence of commercial agricultural production.

(2) The General Court also distorted the facts in paragraphs 74 to 79 of the judgment under appeal by concluding that the Government of the Republic of Lithuania had failed to demonstrate that holding a milk quota meant that the applicant was engaged in commercial agricultural production, which in essence did not correspond to the documents of the case submitted to it.

(1) Judgment of the General Court (Fourth Chamber) of 22 November 2018, Republic of Lithuania v European Commission, T-508/15 (EU:T:2018:828).

(2) (OJ 2015 L 182, p. 39)

(3) Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).
Action brought on 25 January 2019 — European Commission v Portuguese Republic

(Case C-49/19)

(2019/C 112/34)

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court of Justice should:

— Declare that, by instituting an extraordinary contribution for the purposes of sharing the net cost of universal service obligations, from 2007 to the start of the provision of universal services, by the undertaking(s) designated under Article 99(3) of Law No 5/2004, as provided for in Articles 17 and 18 of Law No 35/2012 on the Compensation Fund, the Portuguese Republic has failed to fulfil its obligations under Article 13(3) and Part B of Annex IV to Directive 2002/22/EC of the European Parliament and of the Council on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive); (1) and

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

In accordance with the combined provisions of Article 13(3) and Part B of Annex IV to the Universal Service Directive, any mechanism for sharing the net cost of universal service obligations by electronic communications network operators and service providers is to respect the principles of transparency, least market distortion, non-discrimination and proportionality.

Portuguese Law No 35/2012 establishes a compensation fund in respect of universal electronic communications services, intended to finance the net costs arising from compliance with universal service obligations, and guarantee that those costs are shared between the undertakings that are required to contribute.

Under Article 6 of that Law, the compensation fund is intended to finance the net costs of universal services, determined in the context of the public procurement procedures referred to in Article 99(3) of Law No 5/2004 of 10 February 2004, and found to be excessive by the ICP-ANACOM. The fund is also intended to finance the net costs of universal services incurred up until the start of the provision of universal services by the undertaking(s) designated under the abovementioned provision, through the institution of an extraordinary contribution levied on undertakings that are required to contribute, in respect of each of the years 2013, 2014 and 2015.

The Commission takes the view that by levying an extraordinary contribution which was intended to cover the costs of universal services during the period prior to the adoption of Law No 35/2012, the Portuguese Republic has failed to comply with the principles of transparency, least market distortion, non-discrimination and proportionality, as required by Article 13(3) and Part B of Annex IV to the Universal Service Directive.

(1) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).
Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 31 January 2019 — Belgische Staat, vertegenwoordigd door de Minister van Werk, Economie en Consumenten, belast met Buitenlandse handel, Belgische Staat, vertegenwoordigd door de Directeur-Generaal van de Algemene Directie Economische Inspectie, Directeur-Generaal van de Algemene Directie Economische Inspectie v Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV

(Case C-73/19)

(2019/C 139/35)

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Appellants: Belgische Staat, vertegenwoordigd door de Minister van Werk, Economie en Consumenten, belast met Buitenlandse handel, Belgische Staat, vertegenwoordigd door de Directeur-Generaal van de Algemene Directie Economische Inspectie, Directeur-Generaal van de Algemene Directie Economische Inspectie

Respondents: Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV

Question referred

Is an action concerning a claim aimed at determining and stopping infringing market practices and/or commercial practices towards consumers, instituted by the Belgian Government in respect of Dutch companies which from the Netherlands, via websites, focus on a mainly Belgian clientele for the resale of tickets for events taking place in Belgium, pursuant to Article 14 of the wet van 30 juli 2013 betreffende de verkoop van toegangsbewijzen tot evenementen (Law of 30 July 2013 regarding the sale of admission tickets to events) and pursuant to Article XVII.7 WER, a civil or commercial matter within the meaning of Article 1(1) of the European Regulation 1215/2012 (1) of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and can a judicial decision in such a case, for that reason, fall within the scope of that Regulation?

(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).
1.

Do the provisions of the Schengen Convention, including, in particular, the provisions on the systematic consultation of the SIS and the Schengen Borders Code and including, in particular, the requirement to hold a valid passport laid down therein, constitute obstacles to the grant of residence permits on the basis of applications which were submitted in Sweden and which are not based on grounds of protection or humanitarian grounds, when the identity is unclear?
1.

Do the provisions of Council Directive 93/13/EEC [of 5 April 1993] on unfair terms in consumer contracts, (1) in particular recitals 12, 21 and 23 and Article 6(1), Article 7(2) and Article 8 thereof, preclude national courts from adopting an interpretation according to which a consumer may not, in the context of opposing enforcement (which in national law is a special action that may be brought only under certain restrictive conditions and within a certain time limit after enforcement proceedings have been commenced), rely on the existence of unfair terms in a credit agreement which he has concluded with a seller or supplier (that credit agreement constituting, under national law, the enforceable instrument on the basis of which the enforcement proceedings have been commenced against the consumer) for the reason that such a ground is inadmissible in that type of action, the national legislation providing instead for an action pursuant to ordinary law, not subject to any time limit, by means of which a consumer may at any time apply for a declaration of the existence of unfair contractual terms, which will thus not be binding, even though the judgment on such an action may not have any direct consequences for the enforcement proceedings, there being a risk that enforcement will be completed before the judgment in the action pursuant to ordinary law is obtained?