ddrg/super_eurlex huggingface dataset:
1.

Where (i) a worker’s annual pay comprises of basic pay and commission payments made under a contractual right to commission (ii) the commission is paid by reference to sales made and contracts entered into by the employer in consequence of the worker’s work (iii) commission is paid in arrears and the amount of commission received in a given reference period fluctuates according to the value of sales achieved and contracts entered into and the time of such sales (iv) during periods of annual leave, the worker does not undertake any work that would entitle him to those commission payments and accordingly does not generate commission in respect of such periods (v) during the pay period which includes a period of annual leave, the worker is entitled to basic pay and will continue to receive commission payments based on commission earned earlier; and (vi) his average commission earnings over the course of the year will be lower than they would be if the worker had not taken leave, because, during the leave period, he will not have undertaken any work that would entitle him to commission payments does Article 7 of Directive 93/104/EC (1), as amended by Directive 2003/88/EC (2), require that Member States take measures to ensure that a worker is paid in respect of periods of annual leave by reference to the commission payments he would have earned during that period, had he not taken leave, as well as his basic pay?
EN Official Journal of the European Union C 26/36

Action brought on 20 November 2012 — European Commission v Federal Republic of Germany

(Case C-527/12)

2013/C 26/68

Language of the case: German

Parties

Applicant: European Commission (represented by: T. Maxian Rusche and F. Erlbacher, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to adopt all the measures necessary to ensure the immediate and effective implementation of the Commission’s decision by recovering granted aid, the Federal Republic of Germany has failed to fulfil its obligations resulting from Article 288 TFEU, Article 108(2) TFEU, the principle of effectiveness, Article 14(3) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) and Articles 1, 2 and 3 of Commission Decision 2011/471/EU of 14 December 2010 on State aid granted by Germany to the Biria group (C 38/05 (ex NN 52/04)); (2)

— order the defendant to pay the costs.

Pleas in law and main arguments

The Commission claims that the Federal Republic of Germany has failed to comply with its obligations resulting from Article 288 TFEU, Article 108(2) TFEU, the principle of effectiveness, Article 14(3) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty and Articles 1, 2 and 3 of Commission Decision 2011/471/EU of 14 December 2010 on State aid granted by Germany to the Biria group (C 38/05 (ex NN 52/04)) by failing to adopt all the measures necessary to ensure the immediate and effective implementation of the Commission’s decision by recovering granted aid.

The Commission takes the view that the instrument chosen by the defendant to recover the aid, namely the granting of civil law claim and a corresponding action for enforcement before the German civil law courts, is not appropriate to ensure the immediate and effective implementation of the Commission’s decision. In the alternative, it submits that, on the day the action was lodged, the defendant had not made use of the provisional basis provided to it by the judgment taken by default to implement the Commission’s decision.

(1) OJ 1999 L 83, p. 1.

(2) OJ 2011 L 195, p. 55.
(c)

If Question (a) is to be answered in the negative, must the second sentence of the first paragraph of Article 263 in conjunction with Article 256(1) and Article 274 of the Treaty on the Functioning of the European Union be interpreted as meaning that the General Court of the European Union or the competent court under national law has jurisdiction to hear and determine actions against decisions of the Monitoring Committee for the Estonia-Latvia Programme 2007-2013?
2.

Recital 2 in the preamble to Regulation No 1383/2003 mentions as one of the objectives of the regulation the protection of consumers, and according to recital 3 in the preamble a procedure should be set up to enable the customs authorities to enforce as effectively as possible the prohibition of the introduction into the Community customs territory of goods infringing an intellectual property right, without impeding the freedom of legitimate trade in accordance with recital 2 in the preamble to the regulation and recital 1 in the preamble to implementing regulation No 1891/2004. (2) Is it compatible with those objectives if the measures laid down in Article 17 of Regulation No 1383/2003 can be applied only if the right-holder initiates the procedure mentioned in Article 13(1) of the regulation for determination of an infringement of an intellectual property right, or must it also be possible, for the effective pursuit of those objectives, for the customs authorities to initiate the corresponding procedure?
3.

Are national rules which require, as a mandatory pre-condition for the entry of third-country nationals, the existence of a valid visa contained in a valid travel document compatible with Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)?
1.

Does the transfer of goods to Italy from another Member State for the purpose of verifying whether those goods may be adapted to other goods acquired within Italy, without anything being done to the goods brought into Italy, come within the notion of ‘work on the goods’ referred to in Article 17(2)(f) of Directive 2006/112/EC (1) and, in this connection, is it appropriate to assess the nature of the transactions which took place between F.B. ITMI and DR-IT?
2.

Must Article 2(2)(c) of Directive 2006/54/EC, which provides that any less favourable treatment related to maternity leave constitutes discrimination, be interpreted as affording female workers protection, which is absolute and cannot be affected by divergent interests, against any substantial inequality (Case C-136/95 Thibault [1998] ECR I-2011), so as to preclude national legislation which, by requiring dismissal from a professional training course and at the same time guaranteeing the option of enrolling on the following course, pursues the objective of providing adequate training but deprives the female worker of the opportunity to take up, at an earlier date, a new post together with male colleagues from the competition and course, and thus to receive the corresponding pay?
EN Official Journal of the European Union C 225/53

Appeal brought on 29 November 2012 by Erusalim Baleanu against the order of the General Court (Fourth Chamber) delivered on 25 September 2012 in Case T-311/12: Baleanu v Commission

(Case C-566/12 P)

2013/C 225/94

Language of the case: English

Parties

Appellant: Erusalim Baleanu (represented by: R. Neagu, avocat)

Other party to the proceedings: European Commission

By order of 27 June 2013 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.
1.

Is it the case that Article 3(2) 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 and, in particular, the requirement of a ‘specific purpose’ for a particular levy (a) must be interpreted as requiring that the purpose pursued is not capable of being achieved by means of another harmonised levy? (b) must be interpreted as meaning that there is a purely budgetary purpose when a particular levy has been established simultaneously with the transfer of certain competences to certain Autonomous Communities to which, in turn, are transferred the proceeds of the levy with the aim of covering, in part, the costs associated with the competences transferred, it being permissible to lay down rates of levy that vary as between Autonomous Communities? (c) If the previous question is answered in the negative, must the term ‘specific purpose’ be interpreted as meaning that the purpose must be exclusive or, on the contrary, that it permits the attainment of various differentiated aims, among which is also included the merely budgetary aim of obtaining financing for certain competences? (d) If the answer to the previous question is that the attainment of various aims is permitted, what degree of relevance must be displayed by a particular objective, for the purposes of Article 3(2) of Directive 92/12, in order to fulfil the requirement that the levy should meet a ‘specific purpose’ in the sense accepted by the case-law of the Court of Justice and what would be the criteria for defining the principal purpose as compared with the ancillary purpose?
1.

Must Article 2d(4) of Directive 2007/66/EC (1) be construed as meaning that if, before awarding the contract directly to a specific economic operator, selected without prior publication of a contract notice, an awarding authority published the notice for voluntary ex ante transparency in the Official Journal of the European Union and waited at least 10 days before concluding the contract, the national court is — always and in any event — precluded from declaring the contract to be ineffective, even if it is established that there has been an infringement of the provisions permitting, subject to certain conditions, the award of a contract without a competitive tendering procedure?
—

Declare that, by failing to adopt all the laws, regulations and administrative measures necessary to comply with Directive 2009/73/EC (1) of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, (2) or in any case by failing to notify the Commission of such measures, the Republic of Slovenia has failed to fulfil its obligations under Article 54(1) of that directive;
EN Official Journal of the European Union C 147/3

Request for a preliminary ruling from the Tribunale ordinario di Aosta (Italy) lodged on 30 January 2013 — Rocco Papalia v Comune di Aosta

(Case C-50/13)

2013/C 147/06

Language of the case: Italian

Referring court

Tribunale ordinario di Aosta

Parties to the main proceedings

Applicant: Rocco Papalia

Defendant: Comune di Aosta

Question referred

Must Directive 1999/70/EC (1) (Article 1, along with Clause 5 of the annexed framework agreement, as well as any other provision in any way connected or linked) be interpreted as permitting a situation in which a worker who has been recruited by a public body on a fixed-term contract, without the requirements laid down by the above Community rules being satisfied, is entitled to compensation in respect of damage only if he proves that such damage actually exists, and thus only if he provides positive, including presumptive, evidence, but at any rate specific evidence, that he has had to forgo other, better, employment opportunities?

(1) OJ 1999 L 175, p. 43.
1.

Should Article 2 of Regulation (EEC) No 2081/92 (1) be interpreted as precluding a producers’ association from being able to claim the right exclusively to use, within the [European Union], a designation of geographical origin used within a Member State to designate a specific type of salami sausage, without having first obtained a legally binding measure from that Member State establishing the boundaries of the geographical area of production, the rules and regulations governing production, and any requirements which producers may have to satisfy in order to be entitled to use that designation?
EN Official Journal of the European Union C 141/13

Request for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 7 February 2013 — Fortuna Russo v Comune di Napoli

(Case C-63/13)

2013/C 141/22

Language of the case: Italian

Referring court

Tribunale di Napoli

Parties to the main proceedings

Applicant: Fortuna Russo

Defendant: Comune di Napoli

Questions referred

1. When is an employment relationship to be regarded as being for the public service of the ‘State’, for the purposes of Clause 5 of [the framework agreement set out in the annex to] Directive 1999/70/EC (1) and, in particular, within the meaning of the expression ‘specific sectors and/or categories of workers’, and thus capable of justifying results that are different from those which ensue from employment relationships in the private sector?

2. Having regard to the explanations contained in Article 3(1)(c) of Directive 2000/78/EC (2) and in Article 14(1)(c) of Directive 2006/54/EC, (3) does the notion of employment conditions contained in Clause 4 of [the framework agreement set out in the annex to] Directive 1999/70/EC also include the consequences of the unlawful interruption of an employment relationship? If the answer to the preceding question is affirmative, is the difference between the consequences normally provided for in national law for the unlawful interruption of fixed-term employment relationships and for the unlawful interruption of employment relationships of indefinite duration justifiable under Clause 4?

3. By virtue of the principle of sincere cooperation, is a State precluded from presenting to the Court of Justice of the European Union in a request for a preliminary ruling a deliberately untrue description of a national legislative framework and are the national courts obliged, in the absence of any alternative interpretation of national law that also satisfies the obligations deriving from membership of the European Union to the same degree, to interpret, where possible, national law in accordance with the interpretation given by the State?

(1) Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

(2) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

(3) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).
EN Official Journal of the European Union C 164/8

Appeal brought on 1 March 2013 by the Federal Republic of Germany against the order of the General Court (Eighth Chamber) of 18 December 2012 in Case T-205/11 Germany v Commission

(Case C-102/13 P)

2013/C 164/13

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: T. Henze and J. Möller, acting as Agents)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the order of the General Court of the European Union of 18 December 2012 in Case T-205/11;

— declare the action admissible and refer it back to the General Court for a decision on the merits; and

— order the European Commission to pay the costs of the proceedings before the General Court and before the Court of Justice.

Pleas in law and main arguments

The appeal has been brought against the order of the General Court of the European Union of 18 December 2012 in Case T-205/11, by which the General Court dismissed the action brought by the Federal Republic of Gemany for annulment of Commission Decision 2011/527/EU of 26 January 2011 on State aid C-7/10 (ex CP 250/09 and NN 5/10) implemented by Germany (Sanierungsklausel).

The Federal Government’s appeal is based on two grounds of appeal, each of which concerns a complaint as to insufficient reasoning:

— Breach of the principle of the efficient administration of justice, which is a special manifestation of the general legal principle of legal certainty, in that the General Court erred in its classification of the Commission’s chosen notification procedure in respect of the decision at issue, and did not establish any requirements as to the formalities to be observed in order for notification, with a form for acknowledgement of receipt, of a decision under Article 7 of Council Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) to be effective.

— Breach of the principle of the efficient administration of justice, which is a special manifestation of the general legal principle of legal certainty, in that the General Court found that the Commission was not, in relation to the complaint of late submission of the application, required to adduce evidence of receipt of mail by an identifiable person or of the fact that the person concerned was authorised to accept notification.

(1) OJ 1999 L 83, p. 1.
EN Official Journal of the European Union C 129/6

Appeal brought on 21 February 2013 by Electrabel SA against the judgment of the General Court (Third Chamber) delivered on 12 December 2012 in Case T-332/09 Electrabel v Commission

(Case C-84/13 P)

2013/C 129/12

Language of the case: French

Parties

Appellant: Electrabel SA (represented by: M. Pittie and P. Honoré, avocats)

Other party to the proceedings: European Commission

Form of order sought

— Declare the appeal admissible and well founded;

— in consequence, set aside the judgment under appeal in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million;

— in consequence: — either refer the case back to the General Court for a fresh decision, — or give final judgment granting the form of order sought by the applicant at first instance and annulling the decision at issue in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million or significantly reducing the amount of that fine;

— order the European Commission to pay all the costs.

Pleas in law and main arguments

The appellant relies on three pleas in law in support of its appeal against the judgment by which the General Court affirmed the Commission’s decision of 10 June 2009 ordering Electrabel to pay a fine of EUR 20 million for infringement of Article 7 of Regulation (EEC) No 4064/89 (1) on the control of concentrations.

In the first place, the appellant claims that the General Court infringed the provisions of Article 14(3) of the aforementioned regulation, in that it accepted the alleged ‘duration’ of the infringement as a factor relevant to the setting of the amount of the fine, whereas that article provides that the amount of the fine must be set solely on the basis of the ‘nature’ and ‘gravity’ of the infringement.

In the second place, the appellant claims that the General Court failed to have regard to the principle that the law should not be retroactive, in that it applied the provisions of Regulation (EC) No 139/2004 (2) to a concentration that predated the entry into force of that regulation, and which was therefore covered by the provisions of Regulation (EEC) No 4064/89.

Lastly, the appellant takes the view that the General Court erred in law and that its reasons were contradictory, in that it categorised the infringement that Electrabel was found to have committed as continuous, whereas it was a one-off infringement.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).

(2) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).
EN Official Journal of the European Union C 141/16

Appeal brought on 20 March 2013 by Reber Holding GmbH & Co. KG against the judgment of the General Court (Fifth Chamber) delivered on 17 January 2013 in Case T-355/09 Reber Holding GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-141/13 P)

2013/C 141/30

Language of the case: German

Parties

Appellant: Reber Holding GmbH & Co. KG (represented by: O. Spuhler and M. Geitz, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Wedl & Hofmann GmbH

Form of order sought

I. Set aside the judgment of 17 January 2013 in Case T-355/09 and the decision of the Fourth Board of Appeal of the respondent of 9 July 2009 in Case R 623/2008-4;

II. in the alternative, set aside the judgment referred to at I above and refer the case back to the General Court;

III. order the respondent to pay the costs of the proceedings.

Pleas in law and main arguments

The General Court interprets the element of ‘genuine use’ in the first sentence of Article 42(2) in conjunction with Article 42(3) of the Community Trade Mark Regulation as being dependent on the level of turnover and the number of sales outlets. This is incorrect for the simple reason that, according to the relevant case-law of the Court of Justice, there is no need at all for a particular level of turnover to be achieved in order for use to be genuine.

Even if the General Court had established that, in the present case, the mark cited in opposition, ‘Walzertraum’, had not been used for chocolate goods in such a way as to preserve the rights attached to it, the General Court should not simply have broken off its assessment.

The General Court ought to have moved on in its assessment to focus on handmade chocolates, taking into consideration the principles of the judgment of the Court of Justice of 19 June 2012 in Case C-307/10 (not yet published). Next it ought to have assessed whether the evidence of use submitted was sufficient to demonstrate use such as to preserve the rights attached to the mark cited in opposition, ‘Walzertraum’, in respect of handmade chocolates. That is clearly the case. The General Court failed, however, to proceed with that assessment.

Furthermore the contested decision also represents a breach of the general principle of equal treatment. The unequal treatment stems, in particular, from the fact that the General Court focused in relation to the mark cited in opposition also on chocolate goods generally, even though the mark cited in opposition is used for handmade chocolates. By using chocolate goods as a point of reference, the standards for use such as to preserve rights applied to the appellant are necessarily the same as those applied to a multinational corporation. That is contrary to the general principle of equal treatment.

The appeal should therefore be allowed in its entirety.
EN Official Journal of the European Union C 147/12

Request for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium) lodged on 11 March 2013 — Theodora Hendrika Bouman v Rijksdienst voor Pensioenen

(Case C-114/13)

2013/C 147/22

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen

Parties to the main proceedings

Appellant: Theodora Hendrika Bouman

Respondent: Rijksdienst voor Pensioenen

Question referred

Is the part of the AOW benefit which is paid to a Netherlands resident and which is based on an insurance period during which that Netherlands resident, simply by making an application, may refrain from joining the Netherlands scheme and thus from paying the premium, and in fact did so for a limited period, to be regarded as a benefit which is awarded on the basis of a voluntary or optional continued insurance within the meaning of Article 46a(3)(c) of Regulation 1408/71, (1) so that no account may be taken of it when applying the provision against overlapping as laid down in Article 52(1)(1) of the Belgian Koninklijk Besluit van 21 december 1967 tot vaststelling van het algemeen reglement betreffende het rust- en overlevingspensioen voor werknemers.

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2).