ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 301/29

Order of the President of the Court of 10 July 2008 — Commission of the European Communities v Hellenic Republic

(Case C-117/08) (1)

(2008/C 301/45)

Language of the case: Greek

The President of the Court has ordered that the case be removed from the register.

(1) OJ C 116, 9.5.2008.
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 concerning environmental liability with regard to the prevention and remedying of environmental damage (1), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;
EN Official Journal of the European Union C 327/15

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 7 October 2008 — Elektrownia Pątnów II sp. z o.o. v Dyrektor Izby Skarbowej w Poznaniu

(Case C-441/08)

(2008/C 327/25)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Elektrownia Pątnów II sp. z o.o.

Respondent: Dyrektor Izby Skarbowej w Poznaniu

Questions referred

In the light of Community law (in particular the provisions of Directive 69/335/EEC) (1), are tax authorities obliged when charging capital duty on an increase in capital to take into account transactions relating to the same component of capital which were liable to a capital duty before the date of Poland's accession to the European Union?

In particular, does the mechanism provided for in the second indent of Article 5(3) of Directive 69/335/EEC apply to situations in which the conversion of loans granted to a capital company that are referred to in Article 4(2)(c) of the directive takes place after accession, but those loans have, on the basis of the national legislation in force until the date of accession, previously been taxed in accordance with the principles set out in the Polish Law on civil law transactions tax?

(1) Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English Special Edition 1969 (II), p. 412).
EN Official Journal of the European Union C 313/16

Action brought on 24 September 2008 — Commission of the European Communities v Italian Republic

(Case C-423/08)

(2008/C 313/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu and A. Caeiros, acting as Agents)

Defendant: Italian Republic

Form of order sought

— declare that the Italian Republic has failed to fulfil its obligations under Articles 2, 6, 9, 10 and 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC on the system of the Communities' own resources (1), Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (2), and Article 220 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (3), owing to failure to comply with the time-limits for entry of the Communities' own resources in the event of subsequent recovery and consequent delay in the payment of the same to the Communities;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission complains that the Italian authorities failed to comply, in the event of subsequent recovery of customs resources, with the time-limits for entry of the own resources laid down by the relevant Community rules applicable, in so far as those authorities grant an extension (of sixty days) to taxable persons for the purposes of consultation of the minutes relating to the challenge before calculating the import duties, with the result that delays are caused to the crediting of the Communities' own resources in question. That instance emerged during an inspection of own resources carried out in Italy from 6 to 10 November 2000.

According to the Commission, that operating practice is incompatible with the Community provisions in force concerning subsequent recovery. In fact, the conditions for verification of the duties are satisfied as soon as the national authorities draw up the minutes in which the amount of the duties to be collected is communicated to the taxable person, since that document indicates at the same time the name of the debtor and the amount of the duties to be collected. In so far as in Italy duties are verified and registered only on expiry of the time-limit granted to taxable persons for challenging the correction of the duties communicated to them, the national rules concerned are inconsistent with the relevant Community provisions, and may give rise to delays, in the present case so far as concerns the date on which the Communities' own resources are made available.

(1) OJ L 155, p. 1.

(2) OJ L 130, p. 1.

(3) OJ L 302, p. 1.
2.

Is the correct application of Articles 39, 43, 49 and 81 of the Treaty establishing the European Community impeded by the provisions of national law laid down in Article 36(5) of Legislative Decree No 163 of 12 April 2006, as amended by Legislative Decree No 113 of 31 July 2007, under which: — where a member of a consortium participates in a tendering procedure for a public contract, the consortium itself is automatically excluded from participation solely on the ground that it has a particular legal form (that of a permanent consortium) rather than another, essentially identical, legal form (a grouping of producers' and workers' cooperatives or a grouping of artisan/handicraft businesses), and — where a permanent consortium participates in a tendering procedure for a public contract, and where it has declared that it is competing on behalf of other companies and that it will entrust the works to other companies if it is awarded the contract, a company is automatically excluded from participation solely on the formal ground that it is a member of that consortium?
3.

Can Clause 4 [of the Framework Agreement] on the principle of non-discrimination also be extended to various kinds of part-time contract, in view of the fact that, in the case of ‘horizontal’ part-time work, where the total number of hours worked and for which remuneration is paid in the calendar year is equal, all the weeks of the calendar year are taken into account under national legislation, whereas they are not in the case of ‘vertical’ part-time work?
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/65/EC (1) of the European Parliament and of the Council of 26 October 2005 on enhancing port security, or in any event by failing to communicate them to the Commission the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;
2.

In so far as, according to the definition of a public works contract in Article 1(2)(b) of Directive 2004/18/EC, the element of procurement is indispensable: Is procurement to be regarded as having taken place, in accordance with the second variant of the provision, if the intended works for the public contracting authority fulfil a particular public purpose (for example the development of part of a town) and the public contracting authority has the legal right under the contract to ensure that the public purpose is achieved and that the necessary works will be available?
EN Official Journal of the European Union C 19/16

Reference for a preliminary ruling from the Tribunal de Première Instance de Mons (Belgium) lodged on 11 November 2008 — Régie Communale Autonome du Stade Luc Varenne v Belgian State — SPF Finances

(Case C-483/08)

(2009/C 19/27)

Language of the case: French

Referring court

Tribunal de Première Instance de Mons

Parties to the main proceedings

Applicant: Régie Communale Autonome du Stade Luc Varenne

Defendant: Belgian State — SPF Finances

Question referred

Does Article 10 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1), preclude an interpretation of national statutory provisions and an administrative practice which consist in fixing the starting point for an action for recovery of VAT, and therefore the date from which the limitation period for that action is to be calculated, as the date on which the VAT return is lodged in which the taxable person claims a right to deduct?

(1) OJ 1977 L 145, p. 1.
EN Official Journal of the European Union C 19/19

Appeal brought on 25 November 2008 by Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 September 2008 in Case T-75/06 Bayer CropScience AG and Others v Commission

(Case C-517/08 P)

(2009/C 19/34)

Language of the case: English

Parties

Appellants: Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA (represented by: C. Mereu, K. Van Maldegem, avocats)

Other parties to the proceedings: Commission of the European Communities, Bayer CropScience AG, European Crop Protection Association (ECPA), Kingdom of Spain

Form of order sought

The appellant claims that the Court should, following an oral hearing:

— set aside the judgment of the Court of First Instance in Case T-75/06; and

— annul Commission Decision 2005/864/EC (1) of 2 December 2005 concerning the non-inclusion of endosulfan in Annex I to Directive 91/414/EEC (2) and the withdrawal of authorisations for plant protection products containing that substance; or

— alternatively, refer the case back to the Court of First Instance for judgment; and

— order the Respondent to pay all the costs of these proceedings (including the costs before the Court of First Instance).

Pleas in law and main arguments

The Appellants submit that, in dismissing their application for annulment in respect of Commission Decision 2005/864/EC of 2 December 2005 concerning the non-inclusion of endosulfan in Annex I to Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance, the Court of First Instance breached Community law. In particular, the Appellants contend that the Court of First Instance committed a number of errors in its interpretation of the facts and of the legal framework as applicable to the Appellants' situation. That resulted in it making a number of errors in law, in particular:

(i) in failing to find that the Appellants had been placed in a situation of force majeure by the conduct of the competent authorities such that the failure of the competent authorities to defer the procedural deadlines amounted to a manifest error of assessment; and

(ii) in holding that the Appellants' legal and procedural rights had not been infringed.

(1) OJ L 317, p. 25.

(2) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, p. 1).
EN Official Journal of the European Union C 32/13

Action brought on 5 November 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-475/08)

(2009/C 32/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and B. Schima, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that, by failing to designate the systems operators as required under Article 7 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 (1), by providing for not only a regulated access but also a negotiated access of third parties to the system contrary to Article 18 of Directive 2003/55/EC, in conjunction with Article 25(2) thereof, by failing to transpose Article 22(3)(d) and (e) and (4) of Directive 2003/55/EC, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission raises three complaints in support of its action.

First, it alleges that the defendant has not designated the systems operators for the transmission and storage of gas and liquefied natural gas terminals, as provided for in Articles 7 and 11 of Directive 2003/55/EC.

It is then alleged that the defendant creates legal uncertainty with regard to new entrants in so far as it gives the impression that the negotiated access to the system is an alternative to the regulated access. However, it is clear from Articles 18 and 25(2) of Directive 2003/55/EC that regulated access is the only possible means of access for third parties to the system and that the regulatory authority alone is responsible for fixing or approving prior to their entry into force, at least the methodologies used to calculate or establish the tariffs.

Finally, the Commission points out that, by exempting new large natural gas facilities from the application of the directive, the defendant has not correctly transposed Article 22(3)(d) of the directive, with respect to the requirement to publish the decision, and Article 22(3)(e) of the directive, concerning the obligation to consult the other Member States or regulatory authorities concerned by the interconnection of those infrastructures. Furthermore, the defendant has not made provision in its national law for the obligation to notify without delay such an exemption decision to the Commission, together with all the other relevant information with respect to that decision, as is provided for in Article 22(4) of the directive.

(1) OJ 2003 L 176, p. 57.
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) and, in any event, by failing to notify the Commission thereof, the Grand Duchy of Luxemburg has failed to fulfil its obligations under that directive;
4.

If the answer to question 3 is in the affirmative, is that sufficient to release the air carrier from its obligation to pay compensation, or is further evidence required that the cancellation, that is to say, the fact of the relevant aircraft being taken out of operation and the cancelling of the flight owing to the lack of a replacement aircraft, would also not have been avoided by the taking of all reasonable measures?
1.

Is Article 21(1)(a) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration (1) to be interpreted as meaning that a right within the meaning of that provision exists, (a) if, without any intention to use it for goods or services, a trade mark is acquired only for the purpose of being able to register in the first phase of phased registration a domain corresponding to a German-language generic term? (b) if the trade mark underlying the domain registration and coinciding with a German-language generic term deviates from the domain in so far as the trade mark contains special characters which were eliminated from the domain name although the special characters were capable of being rewritten and their elimination has the effect that the domain differs from the trade mark in a way which excludes any likelihood of confusion?
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declare that the Kingdom of Spain has failed to fulfil its obligations, — in accordance with Article 2(1), Article 3(1) and (2) as the case may be, Article 4 and Article 5 of Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment in relation to separate projects for widening and/or upgrading the M-501 road corresponding to sections 1, 2 and 4; in accordance with Article 6(2) and Article 8 of Council Directive 85/337/EEC in relation to separate projects for widening and/or upgrading the M-501 road corresponding to sections 2 and 4; and in accordance with Article 9 of Directive 85/337/EEC in relation to separate projects for widening and/or upgrading the M-501 road corresponding to sections 1, 2 and 4; — in accordance with Article 6(3) and (4) of Council Directive 92/43/EEC (2) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, read in conjunction with Article 7 thereof, with respect to the separate projects for widening and/or upgrading the M-501 road corresponding to sections 1, 2 and 4 of the special protection area for birds ES 0000056 ‘Encinares del río Alberche y río Cofio’; — in accordance with Directive 92/43/EEC, interpreted by the judgments of the Court of Justice of 13 January 2005 in Case C-117/03 and 14 September 2006 in Case C-244/05, and the obligations resulting from Article 12(1)(b) and (d) of the directive, with respect to separate projects for widening and/or upgrading the M-501 road corresponding to section 1 as regards the site proposed as a site of Community importance ES 3110005 ‘Cuenca del río Guadarrama’, and sections 2 and 4 regarding the proposed site of Community interest ES 3110007 ‘Cuenca de los ríos Alberche y Cofio’;
EN Official Journal of the European Union C 141/22

Appeal brought on 3 June 2008 by Mr Ammayappan Ayyanarsamy against the order of the Court of First Instance (Fifth Chamber) delivered on 1 April 2008 in Case T-412/07 Ammayappan Ayyanarsamy v Commission of the European Communities and the Federal Republic of Germany

(Case C-251/08 P)

2009/C 141/38

Language of the case: German

Parties

Appellant: Ammayappan Ayyanarsamy (represented by: H. Kotzur, Rechtsanwalt)

Other party to the proceedings: Commission of the European Communities, Federal Republic of Germany

By order of 17 March 2009 the Court (Eighth Chamber) dismissed the appeal and ordered Mr Ayyanarsamy to bear his own costs.
EN Official Journal of the European Union C 69/21

Reference for a preliminary ruling from the Juzgado Contencioso-Administrativo de Granada (Spain) lodged on 18 December 2008 — Carlos Sáez Sánchez and Patricia Rueda Vargas v Junta de Andalucía and Manuel Jalón Morente and Others, co-defendants

(Case C-563/08)

(2009/C 69/37)

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo de Granada

Parties to the main proceedings

Applicants: Carlos Sáez Sánchez and Patricia Rueda Vargas

Defendants: Junta de Andalucía and Manuel Jalón Morente and Others

Question referred

Are Articles 2.3 and 2.4 of State Law 16/1997 of 25 April on pharmaceutical services, in so far as they define territorial and demographic limits on the opening of pharmacies, contrary to Article 43 of the Treaty establishing the European Economic Community, in that they constitute a disproportionate, even counterproductive, system for limiting the number of pharmacies, in terms of the objective of the proper provision of medicines in the relevant territory?
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declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (1) or, in any case, by not communicating all of them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
1.

Does Article 3(3) of Council Directive 92/12/EEC (1) of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products allow Member States to lay down a provision that excise duty be levied on the introduction of used motor vehicles into their territory, if that duty is not directly payable on the second-hand purchase of such vehicles which are already in the country and for which on first introduction into the territory of the Member State excise duty is paid?
EN Official Journal of the European Union C 82/13

Reference for a preliminary ruling from the Fővarosi Bíróság (Hungary) lodged on 19 January 2009 — Sió-Eckes Kft. v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

(Case C-25/09)

(2009/C 82/25)

Language of the case:Hungarian

Referring court

Fővarosi Bíróság

Parties to the main proceedings

Applicant: Sió-Eckes Kft.

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

Questions referred

1. May Article 2(1) of Council Regulation (EC) No 2201/96 (1) be interpreted as meaning that, in accordance with Annex I, the production aid scheme applies, not only to peaches in syrup and/or in natural fruit juice included in CN code ex 2008 70 61, but also to the products with other CN codes listed in that annex (ex 2008 70 69, etc)?

2. Does the processor which manufactures products under CN code ex 2008 70 92 comply with the provisions of Regulation No 2201/96?

3. May Article 2(1) of Commission Regulation (EC) No 1535/2003 (2) be interpreted as meaning that the products designated by CN codes ex 2008 70 61, ex 2008 70 69, ex 2008 70 71, ex 2008 70 79, ex 2008 70 92, ex 2008 70 94 and ex 2008 70 99 are also finished products within the meaning of the regulation?

4. In so far as, in accordance with the answers to the previous questions, the definition of finished products is applicable only to the peaches described in Article 3 of Commission Regulation (EEC) No 2320/89 (3), why are the CN codes of other products included in the regulations previously cited?

5. In accordance with the regulations cited above, may the products resulting from the separate phases of peach processing be regarded as finished products, regardless of whether they may be marketed (for example, the pulp)?

(1) Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products (OJ 1996 L 297, p. 29).

(2) Commission Regulation (EC) No 1535/2003 of 29 August 2003 laying down detailed rules for applying Council Regulation (EC) No 2201/96 as regards the aid scheme for products processed from fruit and vegetables (OJ 2003 L 218, p. 14).

(3) Commission Regulation (EEC) No 2320/89 of 28 July 1989 of minimum quality requirements for peaches in syrup and peaches in natural fruit juice for the application of the production aid scheme (OJ 1989 L 220, p. 54).
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/45/EC (1) of the European Parliament and of the Council of 7 September 2005 on the mutual recognition of seafarers' certificates issued by the Member States and amending Directive 2001/25/EC and, in any event, by failing to notify the Commission thereof, the Italian Republic has failed to fulfil its obligations under Article 5 of that directive.
1.

Are the provisions of the first and second subparagraphs of Article 3(3) of Directive 1999/44/EC (1) of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees to be interpreted as precluding a national statutory provision under which, in the event of a lack of conformity of the consumer goods delivered, the seller may refuse the form of remedy required by the consumer when the remedy would result in the seller incurring costs which, compared with the value the consumer goods would have if there were no lack of conformity, and with the significance of the lack of conformity, would be unreasonable (absolutely disproportionate)?