ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 113/7

Reference for a preliminary ruling from the Tribunale di Ivrea (Italy) lodged on 4 February 2011 — Criminal proceedings against Lucky Emegor

(Case C-50/11)

2011/C 113/14

Language of the case: Italian

Referring court

Tribunale di Ivrea

Party to the main proceedings

Lucky Emegor

Question referred

In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude a third-country national staying unlawfully in national territory from being sentenced to a term of imprisonment of up to four years in the event of failure to comply with the initial order issued by the Questore for removal from national territory within five days of notification, and a term of between one and five years’ imprisonment for failure to comply with subsequent orders, with the police authorities under an obligation to arrest those engaged in the commission of this offence, solely on account of his failure to cooperate in the deportation procedure and in particular failure to comply with the removal order issued by the administrative authorities?

(1) OJ 2008 L 348, p. 98.
EN Official Journal of the European Union C 130/13

Action brought on 21 February 2011 — European Commission v Republic of Austria

(Case C-75/11)

2011/C 130/23

Language of the case: German

Parties

Applicant: European Commission (represented by: V. Kreuschitz and D. Roussanov, Agents)

Defendant: Republic of Austria

Forms of order sought

— declare that the Republic of Austria has failed to fulfil its obligations under Article 18 TFEU in conjunction with Articles 20 and 21 TFEU and Article 24 of Directive 2004/38/EC (1) of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, by granting reduced fares on means of public transport in principle only to students in respect of whom Austrian family assistance is granted;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Union citizens have the right to move freely within the territory of the Member States subject to the conditions and limits defined by the Treaties and by the measures adopted thereunder. In so far as Union citizens exercise that right they must in principle be treated in the same way as citizens of the host Member State.

The linkage of the fare reduction for students at issue in the present dispute to the receipt of family assistance in Austria is by nature such as to disadvantage nationals of other Members States compared to Austrian citizens and therefore infringes the principle of equal treatment of Union citizens and a Member State’s own nationals.

Contrary to the view of the Austrian Government, the price reduction does not constitute a contribution in kind to compensate for family burdens, as it is clearly a benefit which can be claimed only by matriculated students at a college or university.

The unequal treatment of students whose parents cannot claim Austrian family assistance is also not covered by the exception contained in Article 24(2) of Directive 2004/38, according to which a host Member State may in certain circumstances refuse to grant aid for studies consisting in student grants or student loans to students from other Member States.

Exceptions from the equality principle must be interpreted strictly. Therefore reduced travel fares for students cannot be regarded as aid for studies consisting in student grants or student loans. The exclusion of students whose parents do not receive Austrian family assistance from the fare reduction at issue in the present case therefore infringes European Union law.

(1) OJ 2004 L 158, p. 77.
EN Official Journal of the European Union C 145/8

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium), lodged on 16 February 2011 — Connoisseur Belgium BVBA v Belgische Staat

(Case C-69/11)

2011/C 145/11

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brugge

Parties to the main proceedings

Applicant: Connoisseur Belgium BVBA

Defendant: Belgische Staat

Question referred

Does Article 26 of the Wetboek van de BTW (the Belgian VAT Code) infringe Article 11.A(1)(a) of the Sixth VAT Directive, (1) now incorporated in Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006 on the common system of value added tax, and the principle of the neutrality of VAT, if that provision is interpreted as meaning that VAT is due on costs or amounts which could contractually be charged to the other contracting party but which are not so charged?

(1) 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 (OJ 1977 L 145, p. 1).

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

Do Article 49 TFEU and Article 54 TFEU require that the acquiring company is entitled to deduct in its taxation losses incurred in previous years by a company merging with it, which has resided in another Member State where it has incurred the losses in connection with business activities, when the acquiring company will not have a fixed place of business in the resident state of the acquired company and when, under national legislation, the acquiring company is entitled to deduct the losses of an acquired company, if the acquired company was Finnish or if the losses had been incurred in a fixed place of business located in this state?
5.

In conclusion, is it possible to assert — in the light of recital 10 [in the preamble to Directive 2008/115/EC], the earlier version of Article 23 of the Convention implementing the Schengen Agreement, the recommendations and guidelines referred to in the preamble to Directive 2008/115/EC, and Article 5 of the ECHR — that Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1), (4), (5) and (6) confer the status of a binding rule on the principles that the restriction of freedom for the purposes of repatriation falls to be regarded as an extreme measure (extrema ratio) and that no custodial measure is justified where it is linked to a deportation procedure in relation to which there is no reasonable prospect of return?
EN Official Journal of the European Union C 173/8

Reference for a preliminary ruling from the Tribunale di Frosinone (Italy) lodged on 7 April 2011 — Criminal proceedings against Patrick Conteh

(Case C-169/11)

2011/C 173/16

Language of the case: Italian

Referring court

Tribunale di Frosinone

Party to the main proceedings

Patrick Conteh

Question referred

Are Articles 15 and 16 of Directive 2008/115/EC (1) to be interpreted as precluding a Member State from applying to an illegally staying third country national who does not cooperate in the administrative return procedure measures involving deprivation of liberty, on the basis of measures which are other than detention measures and as defined by national law, without the pre-conditions and safeguards laid down in Articles 15 and 16 of Directive 2008/115, on grounds of failure to comply with a removal order issued by the competent administrative authority in accordance with Article 8(3) of that directive?

(1) OJ 2008 L 348, p. 98.
2.

If the answer to Question 1 is in the affirmative: is Article 5 of, in conjunction with Annex II to, Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure [and safety certification] (2) to be interpreted, in the light of Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007, as meaning that the infrastructure manager is under an obligation to make real-time data on other railway undertakings’ trains available to railway undertakings in a non-discriminatory manner, in so far as those trains constitute main connecting services within the meaning of Annex II, Part II, to Regulation (EC) No 1371/2007?
1.

Does European Union law as currently applicable, in particular in Article 21 of the Charter of Fundamental Rights (in conjunction with Article 6(1) TEU), the general legal principle of European Law (Article 6(3) TEU) relating to the prohibition of age discrimination, and Articles 1, 2 and 6 of Directive 2000/78/EC, (1) preclude a national collective agreement which, in making grade classifications under the collective agreement, and thus determining the level of remuneration, discriminates indirectly against older workers by taking account only of their skills and knowledge which they have acquired as air stewards or stewardesses with one airline but not the substantively identical skills and knowledge which they have acquired with another airline within the same group? Does this also apply to an employment relationship which was entered into before 1 December 2009?
EN Official Journal of the European Union C 179/12

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 7 April 2011 — Maurice Robert Josse Marie Ghislain Lippens and Others v Hendrikus Cornelis Kortekaas and Others, other party: Ageas NV, previously Fortis N.V

(Case C-170/11)

2011/C 179/22

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicants:

Maurice Robert Josse Marie Ghislain Lippens

Gilbert Georges Henri Mittler

Jean Paul François Caroline Votron

Defendants:

Hendrikus Cornelis Kortekaas

Kortekaas Entertainment Marketing B.V.

Kortekaas Pensioen B.V.

Dirk Robbard De Kat

Johannes Hendrikus Visch

Euphemia Joanna Bökkerink

Laminco Gld N-A

Other party: Ageas NV, previously Fortis N.V

Question referred

Must the EC Evidence Regulation, (1) in particular Article 1(1) thereof, be interpreted as meaning that a judge wishing to hear a witness who resides in another Member State must always, for that form of the taking of evidence, use the methods put in place by the EC Evidence Regulation, or does he have the power to use the methods provided by his own national procedural law such as summoning the witness to appear before him?

(1) Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p.1).
1.

In a situation where, in 2005 and 2006, goods from a non-Member State of the European Union (Ukraine) were placed in a public customs warehouse in the territory of a Member State of the European Union by an importer from that Member State, were subsequently processed in an inward processing suspension procedure in that customs warehouse, and the resulting product was not immediately exported within the meaning of Article 114 of Regulation No 2913/92 but instead was sold in that same warehouse by the processor of the goods to another company from that Member State, which did not to release it from the customs warehouse for free circulation, but subsequently returned it to the customs warehousing procedure, is the said sale of goods within the same customs warehouse still subject solely to Community customs rules, or has the legal situation been changed by the said sale to the extent that the transaction is now subject to the system under the Sixth Council Directive of 17 May 1977 (77/388/EEC), (1) i.e. is it possible, for the purpose of the system of value added tax under the Sixth Directive, to regard a public customs warehouse located in the territory of a Member State as part of the territory of the Community, or the territory of that Member State, in accordance with the definitions provided in Article 3 of the Sixth Directive?
EN Official Journal of the European Union C 211/13

Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 28 April 2011 — Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele v Flemish Government

(Case C-197/11)

2011/C 211/25

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele

Defendant: Flemish Government

Intervening parties: Collège de la Commission communautaire française, Gouvernement de la Communauté française, Conseil des ministres

Questions referred

Are Articles 21, 45, 49, 56 and 63 TFEU and Articles 22 and 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) to be interpreted as precluding the scheme established by Book 5 of the Decree of the Flemish Region of 27 March 2009 on land and real estate policy, entitled ‘Living in your own region’, which, in certain communes referred to as ‘target communes’, makes the transfer of land and buildings thereon conditional upon the purchaser or the lessee demonstrating a sufficient connection with those communes for the purposes of Article 5.2.1., §2 of the Decree?

(1) OJ 2004 L 158, p. 77.
1.

Are Articles 6(2)(a) and 13B(b) of 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) to be interpreted as precluding the private use by the mangers, administrators or members and their families of a company with legal personality that is liable to tax of all or part of a property forming part of the assets of the company and thus treated as forming, in its entirety, part of the assets of the business, from being treated as an exempt supply of services, on the basis that it constitutes a leasing or letting of immovable property within the meaning of Article 13B(b), where there is no provision for payment of rent in money as consideration for that use, which amounts to a benefit in kind that is taxed as such for the purpose of the managers’ income tax and such use is therefore regarded for tax purposes as the consideration for a proportion of the work performed by the managers, administrators or members?
4.

On a correct interpretation of Article 7(2)(c) of Regulation No 1896/2006, where the law of a Member State does not provide for the automatic addition of interest is it possible, in a European order for payment procedure, to demand in addition to the principal: (a) all interest, including that known as ‘open interest’ (calculated from the day on which it falls due expressed as a specific date to a day of payment not specified by date, for example, ‘from 20 March 2011 to the day of payment’); (b) only interest calculated from the day on which it falls due expressed as a specific date to the day on which the application is submitted or the order for payment is issued; (c) only interest calculated from the day on which it falls due expressed as a specific date to the day on which the application is submitted?
EN Official Journal of the European Union C 219/7

Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gdańsku (Republic of Poland), lodged on 11 May 2011 — Forta Sp. z o.o. v Dyrektor Izby Celnej w Gdyni

(Case C-217/11)

2011/C 219/09

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Gdańsku

Parties to the main proceedings

Applicant: Forta Sp. z o.o.

Defendant: Dyrektor Izby Celnej w Gdyni

Question referred

Must Article 1(11) of Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (1) and of rules on Information Society services be interpreted as meaning that the term ‘technical regulation’, the draft of which must be communicated to the Commission pursuant to Article 8(1) of that directive, includes a legislative measure which prohibits the issuing of authorisations to carry on an activity involving gaming on low-value-prize machines?

(1) Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 217, p. 18).
2.

If the Court of Justice answers Question 1 in the affirmative: In the light of the provisions of Article 45 TFEU, as specifically implemented by Article 7(4) of Regulation (EEC) No 1612/68, are provisions of this kind in collective agreements, such as Point 8.3 of the general works council agreement of 24 July 2000 and Paragraph 7 of the collective agreement of 23 November 2004, to be interpreted as meaning that, in the case of frontier workers, the top-up amount is not to be calculated in accordance with the table set out in the Order on Minimum Net Pay?
EN Official Journal of the European Union C 226/17

Action brought on 31 May 2011 — European Commission v Kingdom of Sweden

(Case C-270/11)

2011/C 226/33

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: C. Tufvesson and F. Coudert, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

— Declare that Sweden failed to fulfil its obligations under Article 260(1) TFEU in that it has not adopted the measures necessary to comply with the judgment of the Court of Justice in Case C-185/09;

— Order Sweden to pay the Commission, to the account ‘European Union own resources’, a daily penalty of EUR 40 947,20 for each day that the necessary measures are not taken to comply with the judgment of the Court in Case C-185/09, from the day on which the judgment in the present case is delivered until the day on which the judgment in Case C-185/09 is complied with inclusive;

— Order Sweden to pay the Commission, to the same account, a fixed daily amount of EUR 9 597 for each day that the necessary measures are not taken to comply with the judgment of the Court in Case C-185/09, from the day on which the judgment in Case C-185/09 was delivered until the day on which judgment is delivered in the present case or until the day on which the measures necessary to comply with that judgment in Case C-185/09 are taken, if that is earlier; and

— Order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In the judgment of the Court of 4 February 2010 (Case C-185/09 Commission v Kingdom of Sweden), the Court held:

‘By failing, within the period prescribed, to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, the Kingdom of Sweden has failed to fulfil its obligations under that directive.’

The Kingdom of Sweden has still not adopted any measures to comply with the judgment of the Court in Case C-185/09. The Commission has therefore brought proceedings in accordance with Article 260(2) of the Treaty on the Functioning of the European Union and claims that the Kingdom of Sweden should pay financial penalties.
1.

In the light of Articles 167 and 168 of Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, can the purchase, by a commercial company liable for VAT, of a number of buildings scheduled for demolition, together with a plot of land, with a view to developing a residential complex on that land constitute a preparatory activity, that is to say, investment expenditure for the purposes of developing a residential complex, entitling that company to deduct the VAT on the purchase of the buildings?
2.

Is Article 80(1)(a) and (b) of Directive 2006/112 to be interpreted as meaning that, if the supplier has exercised the right to deduct in full the input tax on goods and services which are the subject of subsequent supplies between connected persons at a value lower than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive and the supply is not subject to a tax exemption within the meaning of Articles 132, 135, 136, 371, 375, 376, 377, 378(2) or 380 to 390 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?
EN Official Journal of the European Union C 238/11

Action brought on 14 June 2011 — European Commission v Hellenic Republic

(Case C-297/11)

2011/C 238/16

Language of the case: Greek

Parties

Applicant: European Commission (represented by: I. Chatzigiannis and A. Margelis, Agents)

Defendant: Hellenic Republic

Form of order sought

The Commission requests that the Court:

— declare that the Hellenic Republic, by not having produced river basin management plans (either for those river basin districts falling wholly within its territory or for international river basin districts) by 22 December 2009, and by not having sent copies of the river basin management plans to the Commission by 22 March 2010, failed to fulfil its obligations under Articles 13(1), (2), (3) and (6) and 15(1) of Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. Further, by not having commenced a procedure for public information and the related consultations in connection with the draft river basin management plans by 22 December 2008, the Hellenic Republic failed to fulfil its obligations under Article 14(1)(c) of that directive;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

First, under Articles 13(1), (2), (3) and (6) and 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, Member States were obliged to produce, by 22 December 2009, river basin management plans (either for those river basin districts falling wholly within their territory or for international river basin districts) and to send copies of those plans to the Commission by 22 March 2010.

On the information currently provided by the Hellenic Republic to the Commission it appears that the Hellenic Republic has not yet produced any river basin management plan (either for those river basin districts falling wholly within its territory or for international river basin districts) and consequently has not sent any copy to the Commission. The Commission therefore considers that the Hellenic Republic failed to fulfil both its obligations under Article 13(1), (2), (3) and (6) of the directive and its obligations under Article 15(1) of the directive.

Secondly, under Article 14(1)(c) of the directive, Member States were obliged to make available the draft river basin management plans for public consultation by no later than 22 December 2008.

On the information currently provided by the Hellenic Republic to the Commission, it appears that the procedure concerned has not yet commenced. The Commission therefore considers that the Hellenic Republic failed to fulfil its obligations under Article 14(1)(c) of the directive.

(1) OJ 2000 L 327, p. 1