ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 309/27

Request for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 16 June 2017 — Hüsken and Others v Lufthansa CityLine GmbH

(Case C-368/17)

(2017/C 309/34)

Language of the Case: German

Referring Court

Amtsgericht Düsseldorf

Parties to the main proceedings

Applicants: Hüsken and Others

Defendant: Lufthansa CityLine GmbH

The case was removed from the Register of the Court of Justice by order of the Court of 6 July 2017.
1.

Are Article 31 of the Charter of Fundamental Rights of the European Union and Article 7(1) of Directive 2003/88/EC (1) of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work affect the calculation of the payment for annual leave with the result that the worker receives a lower remuneration for annual leave for the duration of the period of annual leave of at least four weeks, or receives a lower allowance in lieu of leave after the employment relationship has ended, than he would receive if the calculation of the remuneration for annual leave were based on the average earnings which the worker would have received in the period of calculation without such reductions in earnings? If so, what is the maximum percentage, with reference to the worker’s full average earnings, that a collectively agreed reduction, permitted by national legislation, of the remuneration for annual leave may have as a result of short-time work in the period of calculation in order for the interpretation of that national legislation to be regarded as in conformity with EU law?
2.

If that question is answered in the affirmative: Has Article 3(3) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, in conjunction with points (b) and (c) of Annex A thereto, been directly applicable since 1 July 2004 to a supply undertaking incorporated under private law (as a German GmbH), because the abovementioned provisions of that directive are unconditional, so far as their subject matter is concerned, and can therefore be applied without any further implementing act, and confer rights on citizens vis-à-vis an organisation which, despite its private-law legal form, is subject to the authority of the State because the State is the sole shareholder in the undertaking?
1.

Do Article 67(2) TFEU and Articles 22 and 23 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Control) (1) preclude a provision of national law of a Member State which has the effect of requiring bus undertakings operating regular services across a Schengen internal border to check their passengers’ travel documents before crossing an internal border in order to prevent foreign nationals not in possession of a passport or residence permit from being brought into the territory of the Federal Republic of Germany? In particular: (a) Does the general statutory duty, or the administrative obligation directed at individual carriers, not to bring into federal territory foreign nationals not in possession of a passport or residence permit as required, which is properly discharged only if carriers check all passengers’ travel documents before crossing an internal border, constitute, or fall to be treated as, a check on persons at internal borders within the meaning of Article 22 of the Schengen Borders Code? (b) Is the imposition of the duties referred to in point 1 to be assessed by reference to Article 23(a) of the Schengen Borders Code, even though carriers do not exercise ‘police powers’ within the meaning of that provision and, moreover, do not formally enjoy any powers of public authority by virtue of the State-imposed obligation to carry out checks? (c) If the answer to Question 1(b) is in the affirmative, do the checks which carriers are required to carry out, taking into account the criteria laid down in the second sentence of Article 23(a) of the Schengen Borders Code, constitute an impermissible measure having an effect equivalent to border checks? (d) Is the imposition of the duties referred to in point 1, in so far as it concerns bus undertakings operating regular services, to be assessed by reference to Article 23(b) of the Schengen Borders Code, which provides that the absence of border control at internal borders is not to affect the power of carriers to carry out security checks on persons at ports and airports? Does it follow from this that checks within the meaning of Question 1 are impermissible even when carried out other than at ports and airports if they do not constitute security checks and are not also carried out on persons travelling within a Member State?
EN Official Journal of the European Union C 347/24

Action brought on 4 September 2017 — European Commission v Italian Republic

(Case C-526/17)

(2017/C 347/32)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: G. Gattinara, P. Ondrůšek and A. Tokár, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

— declare that, in deferring expiry of the works contract relating to the A12 Civitavecchia-Livorno motorway until 31 December 2046 without publishing any contract notice, the Italian Republic has failed to fulfil its obligations under Articles 2 and 58 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), as subsequently amended;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the extending until 31 December 2046 of the works contract relating to the A12 Civitavecchia-Livorno motorway constitutes an amendment to an essential term of that contract; being a substantial amendment to that contract, that extension is tantamount to concluding a new works contract and, as such, should have been made public through the publication of a contract notice. Since, however, no such publication has taken place, the Italian Republic has failed to fulfil its obligations under Articles 2 and 58 of Directive 2004/18/EC.
EN Official Journal of the European Union C 347/16

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2017 — Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider-Esleben

(Case C-476/17)

(2017/C 347/21)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellants on a point of law: Pelham GmbH, Moses Pelham, Martin Haas

Respondents in the appeal on a point of law: Ralf Hütter, Florian Schneider-Esleben

Questions referred

1. Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29/EC (1) to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram?

2. Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive 2006/115/EC (2)?

3. Can the Member States enact a provision which — in the manner of Paragraph 24(1) of the Gesetz über Urheberrecht und verwandte Schutzrechte (German Law on Copyright and Related Rights) — inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29/EC) and to distribute (Article 9(1)(b) of Directive 2006/115/EC) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent?

4. Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive 2001/29/EC if it is not evident that another person’s work or another person’s subject matter is being used?

5. Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29/EC and Article 9(1)(b) of Directive 2006/115/EC) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29/EC and Article 10(2), first sentence, of Directive 2006/115/EC) allow any latitude in terms of implementation in national law?

6. In what way are the fundamental rights set out in the Charter of Fundamental Rights of the European Union to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29/EC) and to distribute (Article 9(1)(b) of Directive 2006/115/EC) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29/EC and Article 10(2), first sentence, of Directive 2006/115/EC)?

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

(2) Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ 2006 L 376, p. 28.
2.

For a carrier to be exempted from the obligation to pay compensation under Article 5(3) 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, in conjunction with recital 14 of that regulation, is it sufficient to make out a probable case, or is it also necessary to prove, that the employees’ strike constitutes an extraordinary circumstance which could not have been avoided even if all reasonable measures at the carrier’s disposal had been taken?
3)

The third ground addresses how the General Court (i) violated the notion of ‘genuine use’, as provided in Regulation 207/2009, interpreted in the Ansul case (C-40/01, 11 March 2003) and (ii) applied a wrong methodology. The General Court failed to analyze the First Period solely and to take into account the projected sales figures agreed upon in an exclusive licence agreement. Besides, and in light of the very low and time limited quantitative use during First Period, genuine use was not established by reference to several factors not analyzed by the General Court (such as (i) the Parties’ projected sales figures in the licence agreement, (ii) the characteristics of the market (comprising 30 million customers), (iii) the nature of the goods (including breathalyzers) and (iv) the existence of UK trade mark No.2371210 filed in 2004). The General Court gave disproportionate consideration to some documents, including elements relating to services while the earlier mark was opposed for goods in class 9 only.
EN Official Journal of the European Union C 374/19

Request for a preliminary ruling from the Arbeidshof Antwerpen (Belgium) lodged on 21 August 2017 — Christa Plessers v Prefaco NV, Belgische Staat

(Case C-509/17)

(2017/C 374/27)

Language of the case: Dutch

Referring court

Arbeidshof Antwerpen

Parties to the main proceedings

Applicant: Christa Plessers

Defendants: Prefaco NV, Belgische Staat

Question referred

Is the right of option for the transferee under Article 61(4) (now Article 61(3)) of the Belgian Law of 31 January 2009 on the continuity of undertakings, as part of Chapter 4 of Title 4 of that law under which the ‘judicial reorganisation by transfer under judicial supervision’ is regulated, in so far as that ‘judicial reorganisation by transfer under judicial supervision’ is applied with a view to maintaining all or part of the transferor or its activities, consistent with Council Directive 2001/23/EC (1) on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, in particular with Articles 3 and 5 of that directive?

(1) Council Directive 2001/23/EC of 12 March 2001 (OJ 2001 L 82, p. 16).
(1)

Incorrect application of the principle of good faith in the performing of the agreement at issue — Infringement of the provisions concerning subcontracting under the financial regulation in force. — The General Court assessed Article 1134 of the Belgian Civil Code incorrectly, as regards application of the principle of good faith in the performing of the agreement. — The General Court erred as to the interpretation of the provisions concerning subcontracting, as laid down in Article 130 et seq. of Regulation (EU) No 2342/2002 and in contractual clauses I.II.2.4 and II.13.1 of the Framework Contract signed under number FP7/2009/1.
If, in the answer to the second question, the perspective of the consumer is relevant (Question 2(b)):

In connection with the question whether the consumer can expect to conclude a contract for the goods concerned at the trade fair in question, must regard be had to how the trade fair is presented to the public or to how the trade fair actually appears to the consumer when he makes the contractual declaration?
2.

In which way are the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account when ascertaining the scope of the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29/EC to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29/EC) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29/EC)?
1.

If the executing judicial authority cannot interpret the national provisions implementing a framework decision in such a way that their application leads to an outcome in conformity with the framework decision, must it then, in accordance with the principle of primacy, disapply those national provisions not in conformity with that framework decision?
2.

Are Articles 107 and 108 TFEU to be interpreted as encompassing the provision laid down in the national RdFunkBeitrStVtrBW law under which a contribution fee for the exclusive benefit of official/public service broadcasters is unconditionally levied in principle from every adult living in Baden-Württemberg, because this contribution fee contains preferential aid that infringes EU law with the effect that broadcasters from other EU countries are excluded from certain technology, as the contribution fees are used to set up a competing transmission method (DVB-T2 monopoly) whose use by foreign broadcasters is not provided for? Are Articles 107 and 108 TFEU to be interpreted as encompassing not only direct financial aid but also other privileges with economic relevance (right to issue enforcement instruments, authority to act both as an economic undertaking and also as an official body, better position in the calculation of debts)?
1.

In the circumstances of the present case, should Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, ( 1 ) as amended (‘Regulation No 2201/2003’), be interpreted as meaning that: the place of habitual residence of a child aged 18 months is the Member State in which the child demonstrates some degree of integration into the social and family environment through the nationality of the parent who has custody of the child on a daily basis, the use by the child of the official language of that Member State, the christening of the child in that country, visits, lasting up to three months, to that country by the child during holidays and that parent’s parental leave, and contact with that parent’s family, in a situation where the child resides with that same parent in another Member State for all remaining periods and that parent is employed in that State on the basis of an employment contract of indefinite duration and the child maintains in that State regular but temporally limited contact with its second parent and his family?
EN Official Journal of the European Union C 437/23

Request for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 19 October 2017 — Benoît Sauvage, Kristel Lejeune v État belge

(Case C-602/17)

(2017/C 437/28)

Language of the case: French

Referring court

Tribunal de première instance de Liège

Parties to the main proceedings

Applicants: Benoît Sauvage, Kristel Lejeune

Defendant: État belge

Question referred

Does Article 15(1) of the Convention to prevent double taxation between Belgium and the Grand Duchy of Luxembourg signed on 17 September 1970, interpreted as allowing a restriction on the power of taxation of the source State in respect of the remuneration of an employee residing in Belgium and performing his activity for a Luxembourgish employer in proportion to the activity performed on Luxembourgish territory, interpreted as allowing a power of taxation to be attributed to the State of residence in respect of the amount of remuneration relating to the activity performed outside Luxembourgish territory, interpreted as requiring the employee to be permanently and every day physically present at the seat of his employer when it is not disputed that he regularly travels there as the result of a judicial assessment, conducted with flexibility, on the basis of objective and verifiable evidence and interpreted as requiring courts and tribunals to evaluate the existence and relevance of the services provided there and elsewhere, day by day, with a view to establishing a proportion over 220 business days, infringe Article 45 of the Treaty on the Functioning of the European Union in that it constitutes a tax hindrance which discourages activities across borders and breaches the general principle of legal certainty in that it does not provide for a stable and secure regime of exemption of the entirety of the remuneration received by a Belgian resident employed by an employer whose actual seat is situated in the Grand Duchy of Luxembourg and places him at risk of double taxation of all or part of his income and subjects him to an unpredictable legally uncertain regime?
1.

Should Article 132(1)(c) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax be interpreted as meaning that that provision reserves the exemption to which it refers, in the case of both conventional and non-conventional practices, to practitioners of a medical or a paramedical profession that is subject to national legislation governing the healthcare professions and who meet the requirements laid down by that national legislation, and that persons who do not meet those requirements, but who are affiliated to a professional association of chiropractors or osteopaths and who meet the requirements laid down by that association, are excluded from that exemption?
EN Official Journal of the European Union C 5/17

Appeal brought on 24 August 2017 by Uniwersytet Wrocławski against the order of the General Court (Eighth Chamber) made on 13 June 2017 in Case T-137/16, Uniwersytet Wrocławski v Research Executive Agency (REA)

(Case C-515/17 P)

(2018/C 005/24)

Language of the case: Polish

Parties

Appellant: Uniwersytet Wrocławski (represented by: A. Krawczyk-Giehsmann and K. Szarek, adwokaci)

Other party to the proceedings: Research Executive Agency (REA)

Form of order sought

The appellant claims that the Court should:

— set aside the order under appeal;

— declare that the action was properly brought;

— order the other party to the proceedings to pay all of the costs.

Grounds of appeal and main arguments

The first ground of appeal alleges infringement of Article 19 of the Statute of the Court of Justice of the European Union. That ground is based on the submission that the interpretation given by the General Court regarding the application of that provision is flawed and contrary to the principles of proportionality and subsidiarity, in so far as it does not take into consideration the fact that the legal relationship indicated between the legal adviser (radca prawny) and the university is based on the independence and equality of the parties, and that, by its very nature, the profession of legal adviser in the Polish legal system is characterised by independence and an absence of subordination in relation to third parties and is also a profession of public trust.

The second ground of appeal alleges that the General Court infringed Article 119 of the Rules of Procedure of 23 April 2015. That ground is based on the submission that the General Court did not properly set out the reasons for its decision, because, in the grounds of the order under appeal, it provided an abstract statement and failed to link the view expressed to the facts of the present case, thereby significantly limiting the possibility for the appellant to put forward a proper defence.
EN Official Journal of the European Union C 22/18

Appeal brought on 19 September 2017 by Ukraine against the order of the General Court (Sixth Chamber) delivered on 19 July 2017 in Case T-348/14 DEP: Yanukovych v Council

(Case C-551/17 P)

(2018/C 022/26)

Language of the case: English

Parties

Appellant: Ukraine (represented by: M. Kostytska, Advocate)

Other parties to the proceedings: Oleksandr Viktorovych Yanukovych, Council of the European Union, European Commission

By order of 23 November 2017 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 22/16

Request for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 31 July 2017 — Gabriela Verena Glanzmann, Sara Glanzmann, Loris Glanzmann v Deutsche Lufthansa AG

(Case C-456/17)

(2018/C 022/22)

Language of the case: German

Referring court

Oberlandesgericht Köln

Parties to the main proceedings

Applicants: Gabriela Verena Glanzmann, Sara Glanzmann, Loris Glanzmann

Defendant: Deutsche Lufthansa AG

By order of 6 October 2017, the case was removed from the Register of the Court of Justice.
EN Official Journal of the European Union C 42/5

Request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Coimbra (Portugal) lodged on 16 November 2017 — Luís Manuel dos Santos v Fazenda Pública

(Case C-640/17)

(2018/C 042/08)

Language of the case: Portuguese

Referring court

Tribunal Administrativo e Fiscal de Coimbra

Parties to the main proceedings

Applicant: Luís Manuel dos Santos

Defendant: Fazenda Pública

Question referred

Does the principle of free movement of goods between Member States, set out in Article 110 of the Treaty on the Functioning of the European Union (TFEU), preclude a rule of national law [Article 2(1)(b) of the CIUC (1)], interpreted as meaning that annual road tax should not take into account the date of first registration when it was allocated in another Member State and should only be based on the date of registration in Portugal, if that interpretation results in higher taxation of vehicles imported from another Member State?

(1) Código do Imposto Único de Circulação (Annual Road Tax Code)