ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 258/10

Appeal brought on 30 May 2012 by Cadila Healthcare Ltd against the judgment of the General Court (Fifth Chamber) delivered on 15 March 2012 in Case T-288/08: Cadila Healthcare Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-268/12 P)

2012/C 258/17

Language of the case: English

Parties

Appellant: Cadila Healthcare Ltd (represented by: S. Malynicz, Barrister)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Novartis AG

Form of order sought

The appellant seeks the following Order:

— The judgment of the General Court in case T-288/08 dated 15 March 2012 shall be annulled.

— The Office and intervener shall bear their own costs and pay those of the applicant.

Pleas in law and main arguments

The appellant submits that the contested judgment shall be annulled on the following grounds:

The General Court breached Article 113 of the Rules of Procedure in that it should have ruled that the proceedings had become devoid of purpose in light of the fact that by the date of the judgment the earlier mark had not been renewed and further that the additional six months grace period under Article 47(3) CTMR (1) had expired.

On the question of phonetic similarity, the General Court distorted the evidence and incorrectly assessed the facts, and its decision contains a substantive inaccuracy in the findings attributable to the documents submitted to it.

The General Court failed to take into account of the involvement of professionals in the sale of pharmaceutical products.

On the question of visual similarity, the General court misapplied its own case law to the effect that the beginnings of marks are generally considered to be the most important and that in marks which are relatively short such as those in this case, the central elements are as important as the elements at the beginning and end of the sign.

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

OJ L 78, p. 1
1.

Is a provision such as that in Article 70(1)(2) of the Law on value added tax according to which a taxable person does not have a right to deduct value added tax on transport services, work clothing and protective gear received and on business travel expenses incurred because those goods and services are provided free of charge to natural persons, namely employees working for the taxable person’s benefit, compatible with Articles 168(a) and 176 of Council Directive 2006/112/ЕC (1) of 28 November 2006 on the common system of value added tax, if the following circumstances are taken into account: — the taxable person has not concluded any contracts of employment with the employees but engages them on the basis of a contractual relationship relating to the ‘provision of staff’ with another taxable person who is the employer of the personnel; — the transport services received are used to transport employees from certain collection points in various places to their place of work and back and there is no organised public transport available for staff to get to and around the place of work; — the provision of work clothing and protective gear is required under the Labour Code and the Law on health and safety at work; — the deduction of VAT would not be in dispute in relation to the transport services, work clothing, protective gear and business travel expenses if those goods and services had been provided by the employer of the staff; in the present case, however, the respective acquisitions were made by a taxable person who is not the employer but, on the basis of a contract for the provision of staff, draws the benefit of the work and bears the costs associated therewith?
1.

Is Article 206 of Council Regulation No 2913/92 92 of 12 October 1992 establishing the Community Customs Code (1) to be interpreted as meaning that the theft, in the circumstances of the present case, of goods held under the customs warehousing procedure constitutes the irretrievable loss of the goods and a case of force majeure, with the consequence that, in that situation, no customs debt on importation is deemed to have been incurred?
EN Official Journal of the European Union C 287/19

Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 27 June 2012 — Maria Albertina Gomes Viana Novo and Others v Fundo de Garantia Salarial, IP

(Case C-309/12)

2012/C 287/35

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Norte

Parties to the main proceedings

Appellants: Maria Albertina Gomes Viana Novo, Ezequiel Martins Dias, Gabriel Inácio da Silva Fontes, Marcelino Jorge dos Santos Simões, Manuel Dourado Eusébio, Alberto Martins Mineiro, Armindo Gomes de Faria, José Fontes Cambas, Alberto Martins do Alto, José Manuel Silva Correia, Marilde Marisa Moreira Marques Moita, José Rodrigues Salgado Almeida, Carlos Manuel Sousa Oliveira, Manuel da Costa Moreira, Paulo da Costa Moreira, José Manuel Serra da Fonseca, Ademar Daniel Lourenço Dias, Ana Mafalda Azevedo Martins Ferreira

Respondent: Fundo de Garantia Salarial, IP

Question referred

Is European Union law in the specific context of guarantees covering wage claims in the event of the employer’s insolvency, in particular Articles 4 and 10 of Directive 80/987/EEC, (1) to be interpreted as precluding provisions of national law which guarantee only claims falling due in the six months preceding the initiation of insolvency proceedings against the employer, even where the employees have brought an action against their employer before the Tribunal do Trabalho (Labour Court) with a view to obtaining a judicial determination of the amount outstanding and an enforcement order to recover those sums?

(1) Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23).
1.

Do paragraphs 1 and 5 of Article 40 of Council Regulation (EC) No 1782/2003 of 29 September 2003, (1) regard being had to their wording, but also to their purpose, authorise Member States to base the right to revalorisation of the reference amount for farmers whose production has been seriously affected by reason of agri-environmental commitments to which they have been subject, for all or part of the reference period, on a comparison between the amounts of the direct payments received during the years affected by such commitments and those received during years which were not affected by such commitments?
EN Official Journal of the European Union C 287/22

Action brought on 10 July 2012 — European Commission v Portuguese Republic

(Case C-325/12)

2012/C 287/41

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Hetsch, P. Guerra e Andrade and L. Nicolae, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2009/136/EC (1) of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, or, in any event, by not notifying those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under Article 4 of Directive 2009/136/EC;

— in accordance with Article 260(3) TFEU, order the Portuguese Republic to pay a penalty in the amount of EUR 22 014,72 per day, starting from the day the Court delivers its judgment, for having failed to communicate all the measures adopted to transpose Directive 2009/136/EC;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Portuguese State has failed to adopt all the measures necessary to transpose Directive 2009/136/EC or, in any event, to communicate such measures to the Commission.

The Portuguese State attempted to transpose Directive 2009/136/EC into national law only in so far as it amends Directive 2002/22/EC. The part of Directive 2009/136/EC which amended Directive 2002/58/EC (Privacy and Electronic Communications) still needed transposing.

Pursuant to Article 260(3) TFEU, the Commission may request the Court, when bringing an action for failure to act under Article 258 TFEU, to order, in its judgment finding that the Member State has failed to comply with its obligation to notify the Commission of measures transposing a directive adopted under a legislative procedure, the Member State at issue to pay a lump sum or a penalty payment

Pursuant to the Communication from the Commission on the implementation of Article 260(3) TFEU, (2) a periodic penalty payment proposed by the Commission is calculated in accordance with the method set out in the Communication regarding reform of the implementation of Article 228 of the EC Treaty.

Consequently, the calculation of the fine is based on the severity of the infringement, the duration of the infringement and the need to ensure the deterrent effect of the sanction.

The Commission proposes that the coefficient for severity be set at 8, taking account of the importance of the provisions of European Union law which have been infringed and the consequences of the infringement in terms of general and particular interests.

(1) OJ 2009 L 337, p. 11.

(2) OJ 2011 C 12, p. 1.
2.

Is it relevant to the assessment of what constitutes ‘non-commercial carriage’: (a) that the driver makes the journey only for his own purposes? (b) that no payment is made for the carriage per se? (c) how large the financial contribution is and/or how large the financial contribution is in relation to the total cost of the hobby activity?
EN Official Journal of the European Union C 287/25

Reference for a preliminary ruling from the Østre Landsret lodged on 16 July 2012 — Ministeriet for Forskning, Innovation og Videregående Uddannelser v Manova A/S

(Case C-336/12)

2012/C 287/47

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Ministeriet for Forskning, Innovation og Videregående Uddannelser

Defendant: Manova A/S

Question referred

Does the EU law principle of equal treatment mean that a contracting authority, following expiry of the time-limit for applying to take part in a tendering procedure, may not obtain information required in the call for tenders concerning a tenderer’s most recent published balance sheet, when the tenderer in question did not provide such a balance sheet in its application for pre-qualification?
2.

Having regard to — Articles 2 and 3 TEU and the provisions of Part Three, Title VIII TFEU, and in particular Articles 119, 120, 121, 122, 123, 125, 126, and 127 TFEU; — the exclusive competence of the Union in monetary policy as set out in Article 3(1)(c) TFEU and in concluding international agreements falling within the scope of Article 3(2) TFEU; — the competence of the Union in coordinating economic policy, in accordance with Article 2(3) TFEU and Part Three, Title VIII TFEU; — the powers and functions of Union Institutions pursuant to principles set out in Article l3 TEU; — the principle of sincere cooperation laid down in Article 4(3) TEU; — the general principles of Union law including in particular the general principle of effective judicial protection and the right to an effective remedy as provided under Article 47 of the Charter of Fundamental Rights of the European Union and the general principle of legal certainty; is a Member State of the European Union whose currency is the euro entitled to enter into and ratify an international agreement such as the ESM Treaty?
Articles 21, 23, 33 and 34 of the Charter of Fundamental Rights of the European Union

Is Directive 2006/54/EC, and in particular Articles 4 and 14 thereof, to be interpreted as meaning that there is discrimination on the ground of sex where a woman — whose genetic child has been born through a surrogacy arrangement, and who is responsible for the care of her genetic child from birth — is refused paid leave from employment equivalent to maternity leave and/or adoptive leave?
EN Official Journal of the European Union C 343/7

Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 22 August 2012 — RLvS Verlagsgesellschaft mbH v Stuttgarter Wochenblatt GmbH

(Case C-391/12)

2012/C 343/08

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant on a point of law: RLvS Verlagsgesellschaft mbH

Respondent on a point of law: Stuttgarter Wochenblatt GmbH

Question referred

Do Article 7(2) and point 11 of Annex I, in conjunction with Articles 4 and 3(5), of the Directive (1) preclude the application of a national provision (in this case, Paragraph 10 of the Landespressegesetz Baden-Württemberg (Law governing the Press of the Land of Baden-Württemberg)) which is intended not only to protect consumers against misleading practices but also to protect the independence of the press and which, in contrast to Article 7(2) and point 11 of Annex I to the Directive, prohibits any publication for remuneration, irrespective of the purpose thereby pursued, if that publication is not identified by the use of the term ‘advertisement’, unless it is already evident from the arrangement and layout of the publication that it is an advertisement?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).
2.

If, on the basis of the answer to the question raised in 1 above, it can be established that the elimination of impurities within the meaning of HS Note 1 to Chapter 25 has occurred, on the basis of what criteria should an assessment then be made as to whether an extracted mineral product such as decolorising earth, after being washed successively with sulphuric acid and water, can remain classified under heading 2508 40 00 of the CN on the basis of the aforementioned Note, and should not rather be regarded as a chemical product as referred to in Chapter 38 of the HS?
—

The Cypriot authorities themselves acknowledge that, of the 115 sites for the uncontrolled landfill of waste (which because of the ‘uncontrolled’ nature of the waste disposal and management, do not fulfil the criteria of Article 14 of Directive 99/31 so as to be able to continue to operate) formerly operating on Cypriot territory, two remain in operation in the districts of Nicosia and Limassol and they are not expected to be decommissioned before the middle of 2015 or the beginning of 2016.
EN Official Journal of the European Union C 355/9

Reference for a preliminary ruling from the Tribunale di Fermo (Italy) lodged on 29 August 2012 — Criminal proceedings against M

(Case C-398/12)

2012/C 355/15

Language of the case: Italian

Referring court

Tribunale di Fermo

Party/parties to the main proceedings

M

Question referred

Does a final judgment of no case to answer given by a Member State of the European Union party to the Convention implementing the Schengen Agreement (CISA), (1) following an extensive preliminary investigation as part of investigations in connection with proceedings which could be re-activated in the event of fresh evidence, preclude the initiation or conduct of proceedings in respect of the same facts and the same person in another Contracting State.

(1) Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders; OJ 2000 L 239, p. 19.
EN Official Journal of the European Union C 399/10

Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 24 September 2012 — Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili v SC Rafinăria Steaua Română SA

(Case C-431/12)

2012/C 399/17

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Appellants in cassation: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili

Respondent in cassation: SC Rafinăria Steaua Română SA

Question referred

Is it contrary to Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) if Article 124 of the Romanian Tax Procedure Code is interpreted as meaning that the State is not liable for payment of interest on amounts claimed under VAT declarations in respect of the period between the date of set-off of those amounts and the date on which those set-off decisions are annulled by a national court?

(1) OJ 2006 L 347, p. 1.
1.

Can Article 2(2)(c) of Directive 2004/38 (1) be interpreted as meaning that a Member State, on certain conditions, can require a direct descendant who is 21 years old or older — in order to be regarded as dependent and thus come within the definition of a family member under Article 2(2)(c) of Directive 2004/38 — to have tried to obtain employment, help with supporting himself from the authorities of his country of origin and/or otherwise support himself but that that has not been possible?
2.

Does Article 71 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude an interpretation of a convention by which an action for a declaration decided in one Member State does not preclude an action for performance brought later in another Member State, where that convention also makes an interpretation possible in that respect under Article 27 of Regulation No 44/2001?
1.

Does Article 4(1) of Directive 87/344/EEC (1) allow a legal expenses insurer which stipulates in its policies that legal assistance in inquiries or proceedings will in principle be provided by employees of the insurer also to stipulate that the costs of legal assistance provided by a lawyer or legal representative chosen freely by the insured person will be covered only if the insurer takes the view that the handling of the case must be subcontracted to an external legal representative?
EN Official Journal of the European Union C 26/20

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 22 October 2012 — Schiebel Aircraft GmbH v Bundesminister für Wirtschaft, Familie und Jugend

(Case C-474/12)

2013/C 26/37

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Schiebel Aircraft GmbH

Defendant: Bundesminister für Wirtschaft, Familie und Jugend

Question referred

Does Union law, and in particular Articles 18, 45 and 49, in conjunction with Article 346(1)(b) TFEU, preclude a national provision such as the rule applicable in the main proceedings, whereby the members of the statutorily appointed bodies or shareholders of commercial undertakings authorised to manage and represent companies wishing to carry on the business of trading in military arms and munitions and the brokering of the sale and purchase of military arms and munitions, must possess Austrian nationality, the possession of the nationality of another Member State of the EEA not being sufficient?
1.

Are Article 38 of the Charter of Fundamental Rights of the European Union and Articles 6(1) and 7(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts to be interpreted as precluding legislation of a Member State, such as that at issue in this case, preventing a national court, when adjudicating, on the application of a supplier, on a time-barred claim against a consumer from taking limitation of the action into account of its own motion, even when unfair contract terms are being enforced against the consumer?
2.

Must the provisions of European Union directives such as Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees and Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings, which when goods supplied are ascertained to be faulty limits a restitutionary claim such as a claim to recovery of the proceeds of unjust enrichment solely to the period from the last reading of the water meter carried out before the submission of the request is incompatible with them?
EN Official Journal of the European Union C 26/34

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 November 2012 — CTP v Regione Campania

(Case C-517/12)

2013/C 26/64

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: CTP — Compagnia Trasporti Pubblici SpA

Defendant: Regione Campania

Question referred

Does the right to compensation arise, for the purposes of Article 4 of Regulation No 1191/69, (1) only where, following the submission of an appropriate application, the competent authorities have not terminated the public service obligation which imposes an economic disadvantage on the transport undertaking, or is that provision applicable only in respect of service obligations which are to be terminated and cannot be maintained under the regulation?

(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, (OJ 1969 L 156, p. 1).
If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?

Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?