ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 138/2

Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 6 February 2012 — BKK Mobil Oil, a body governed by public law v Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V.

(Case C-59/12)

2012/C 138/02

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant on a point of law: BKK Mobil Oil, a body governed by public law

Respondent on a point of law: Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V.

Question referred

Is Article 3(1), in conjunction with Article 2(d), of Directive 2005/29/EC (1) on unfair commercial practices to be interpreted as meaning that the action of a statutory sickness fund in making (misleading) statements to its members concerning the disadvantages that those members would suffer were they to move to another statutory sickness fund can also constitute an act by a trader in the form of a business-to-consumer commercial practice?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).
EN Official Journal of the European Union C 217/10

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 May 2012 — WIND Telecomunicazioni SpA v Autorità per le Garanzie nelle Comunicazioni and Others

(Case C-230/12)

2012/C 217/19

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: WIND Telecomunicazioni SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni and Others

Question referred

Are the Community provisions in the sector, and in particular the provisions of Directive No 2002/20/EC, (1) to be interpreted as precluding the national rules referred to, in particular Law No 266 of 2005, as those provisions are actually applied by regulation included.

(1) Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive); OJ 2002 L 108, p. 21.
2.

Can the efforts to prevent the infringement of an existing, in itself undisputed and very specific contractual framework between a legal person governed by public law and a private law undertaking, not controlled by itself, or the conclusion of a transaction or a settlement aimed at the resolution of an existing interpretation dispute regarding the aforementioned contractual framework, where that settlement is based on the rights of the parties in accordance with a provisional decision of a judge hearing an application for interim relief and where, without such a settlement, the relevant activity of the authority can incur serious damage and depreciation, with the consumers, in the meanwhile, remaining deprived of services, be regarded as an overriding reason in the public interest, or at least an objective ground of justification, justifying the fact that legal persons governed by public law, by way of exception and contrary to the principle of equal treatment and the prohibition of discrimination on the grounds of nationality, which are laid down in Articles 49 and 56 TFEU and the obligation of transparency to which it gives rise, do not organise an invitation to bid and award the tender directly?
EN Official Journal of the European Union C 217/12

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 24 May 2012 — WIND Telecomunicazioni SpA v Autorità per le Garanzie nelle Comunicazioni

(Case C-254/12)

2012/C 217/25

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: WIND Telecomunicazioni SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni

Question referred

Are the Community provisions in the sector, and in particular the provisions of Directive No 2002/20/EC, (1) to be interpreted as precluding the national rules referred to, in particular Law No 266 of 2005, as those provisions are actually applied by regulation included.

(1) Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive); OJ 2002 L 108, p. 21.
EN Official Journal of the European Union C 151/24

Action brought on 14 March 2012 — European Commission v Council of the European Union

(Case C-137/12)

2012/C 151/37

Language of the case: French

Parties

Applicant: European Commission (represented by: E. Cujo, I. Rogalski and R. Vidal Puig, agents)

Defendant: Council of the European Union

Form of order sought

— Annul Council decision 2011/853/EU of 29 November 2011 on the signing, on behalf of the Union, of the European Convention on the legal protection of services based on, or consisting of, conditional access (1)

— Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

By its first plea, the Commission claims that Article 114 TFEU is not an appropriate legal basis for the adoption of the contested decision. According to the applicant, the decision should have been based on Article 207(4) TFEU which authorises the Council to conclude international agreements in the field of the common commercial policy, as defined in Article 207(1) TFEU. The present convention does not aim to ‘improve the functioning of the internal market’, its principal objective being to ‘facilitate’ or ‘promote’ the provision of services based on conditional access between the European Union and other European countries. It would have a direct and immediate effect on the provision of services based on conditional access and on the trade in illicit devices and on the services relating to those devices. Consequently, the convention falls within the scope of the common commercial policy.

By its second plea, the applicant claims that the European Union’s exclusive external competence (Article 2(1) and 3(1) and (2) TFEU) has been infringed because the Council considered that the conclusion of the convention did not fall within the European Union’s exclusive competence whereas the convention falls within the common commercial policy or, in any case, that the conclusion of the convention is capable of affecting common rules or of altering their scope.

(1) OJ 2011 L 336, p. 1.
(a)

Does Article 21 of the Schengen Borders Code preclude national checks, such as those referred to in Article 50 of the Vreemdelingenwet 2000, from being carried out on the basis of general information and experience regarding the illegal residence of persons at the place where the check is to be carried out, as referred to in Article 4.17a(2) of the Vreemdelingenbesluit 2000, or should there be concrete indications, when such checks are carried out, that an individual on whom checks are to be carried out is illegally resident in the Member State concerned?
5.

As the suspension of payment of holiday and Christmas allowances is not the only possible measure and is not necessary and fundamental to the efforts to consolidate public finances in a serious economic and financial crisis in the country, is it contrary to the right laid down in Article 31(1) of the Charter of Fundamental Rights of the European Union to put at risk the standard of living and the financial commitments of employees and their families who did not reckon with a reduction in their annual income in the amount of two months’ salary?
EN Official Journal of the European Union C 273/5

Action brought on 14 June 2012 — European Commission v Kingdom of Belgium

(Case C-296/12)

2012/C 273/07

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: R. Lyal and W. Roels, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, by approving and maintaining in force tax relief on pension savings in so far as this applies only to payments to Belgian institutions and Belgian funds, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty on the Functioning of the European Union, and in particular Articles 56 and 63 thereof;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the failure to grant tax relief for payments to institutions which are established in another Member State, while tax relief is available for payments to institutions established in Belgium, constitutes an impediment to the free movement of services both for recipients of those services and for providers which are not established in Belgium.

Likewise the Commission takes the view that the failure to grant tax relief for deposits in individual or collective accounts or payments of premiums for life insurance contracts with and to institutions established in another Member State, while tax relief is available for similar deposits with and payments to institutions established in Belgium, constitutes an impediment to the free movement of capital in the sense that Belgian depositors and policyholders are discouraged from holding deposits or taking out life insurance with an institution that is not established in Belgium because those deposits or life insurance contracts do not attract tax relief and are consequently less advantageous.

Those impediments are, according to the Commission, not justified on any grounds.
2.

If the concept of bad faith in Article 4(4)(g) of Directive 2008/95/EC is a concept of European Union law, must the concept be understood as meaning that it may suffice that the applicant knew or should have known of the foreign mark at the time of filing the application, or is there a further requirement concerning the applicant’s subjective position in order for registration to be denied?
1.

Is Article 21(5) of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, (1) and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11-31;‘Directive 2009/103/EC’) to be interpreted to the effect that the powers of the claims representative include the authority to accept service for the insurance undertaking, with the result that, in an action for compensation for accidental damage brought by an injured party against the insurance undertaking, service by the court on the claims representative appointed by the insurance undertaking is effective against the insurance undertaking? If the first question is answered in the affirmative:
EN Official Journal of the European Union C 295/19

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 10 July 2012 — Ministero dello Sviluppo Economico and Autorità per la vigilanza sui Contratti Pubblici di lavori, servizi e forniture v Soa Nazionale Costruttori

(Case C-327/12)

2012/C 295/32

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Ministero dello Sviluppo Economico and Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture

Defendant: Soa Nazionale Costruttori — Organismo di Attestazione Spa

Question referred

Do the principles of Community competition law and Articles 101, 102 and 106 of the Treaty on the Functioning of the European Union preclude the application of the tariffs laid down by Presidential Decree No 34 of 25 January 2000 and by Presidential Decree No 207 of 5 October 2010 for the attestation activities carried out by [a specific category of company, namely,] the società organismi di attestazione (SOAs)?
4.

Is the requirement laid down in Article 29(1)(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) that the prospectus or the base prospectus must be easily accessible on the web-site, where these are made available, fulfilled: (a) if accessing, downloading as well as printing, require registration on the website on which access may subsequently take place, whereby registration requires acceptance of a disclaimer and communication of an e-mail address, or (b) if it is necessary to make a payment for that, or (c) if free of charge access to parts of a prospectus is restricted to two documents per month, but it is necessary to download at least three documents in order to obtain all the required information within the meaning of the third paragraph of Article 22(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation No 809/2004’)?
3.

Must Article 56 et seq. and Article 102 of the Treaty on the Functioning of the European Union (or as the case may be Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (2) ) be interpreted as precluding the application of rules of national law which reserve the exercise of collective management of copyright in the territory of the State to only a single (monopoly) copyright collecting society and thereby do not allow recipients of services a free choice of a collecting society from another State of the European Union?
1.

Is Article 11(9) and the first sentence of Article 11(10) of Council Regulation (EC) No 384/1996 (1) of 22 December 1995 on protection against dumped imports from countries not members of the European Community (now Council Regulation (EC) No 1225/2009 (2) of 30 November 2009) (‘the Basic Regulation’) in conjunction with Article 2(8) and (9) of that regulation to be interpreted as meaning that, if no change in circumstances is proved for the purpose of Article 11(9), those provisions take precedence over any implicit powers of the institutions arising from Article 11(3) of the Basic Regulation for determining the export price, including — as in the case of Council Regulation (EC) No 1279/2007 (3) — the implicit power of the institutions to assess the reliability of the export prices of Severstal-Metiz in the future by making a comparison with the minimum prices according to the price undertaking and the selling prices in third countries? Is the reply to that question affected if, as in the case of Severstal-Metiz and Council Regulation (EC) No 1279/2007, the institutions decide, when exercising their powers in connection with assessing the stability of the change in circumstances regarding the existence of dumping in accordance with Article 11(3) of the Basic Regulation, to vary the anti-dumping measure (reduce the duty rate)?
6.

If the Romanian State were to reduce by 25 % the remuneration of employees paid from public funds, citing as justification the economic crisis and the need to balance the State budget, would that mean that, subsequently, in accordance with the second sentence of Article 17(1) of the Charter of Fundamental Rights of the European Union, the State would be under an obligation to pay those employees fair compensation in good time for the loss sustained?
EN Official Journal of the European Union C 343/9

Action brought on 28 August 2012 — Bundesrepublik Deutschland v Council of the European Union

(Case C-399/12)

2012/C 343/11

Language of the case: German

Parties

Applicant: Bundesrepublik Deutschland (represented by: N. Graf Vitzthum and T. Henze, Agents)

Defendant: Council of the European Union

Form of order sought

— Annul the Council decision of 18 June 2012; (1)

— Order the Council of the European Union to bear the costs.

Pleas in law and main arguments

By its action, the Bundesrepublik Deutschland (Federal Republic of Germany) challenges the Council decision of 18 June 2012‘establishing the position to be adopted on behalf of the European Union with regard to certain resolutions to be voted in the framework of the International Organisation for Vine and Wine (OIV)’.

According to the Federal Government, Article 218(9) TFEU was the incorrect legal basis for the adoption of the decision. Article 218(9) TFEU concerns in the first instance only the adoption of the positions of the Union in bodies, set up by international agreements, of which the Union is a member. Article 218(9) TFEU cannot however be applied in relation to the representation of the Member States in bodies of international organisations in which only the Member States participate by virtue of separate international treaties. Second, Article 218(9) TFEU covers only ‘acts having legal effects’, meaning acts binding under international law. OIV resolutions are however not acts in that sense.

Moreover no other legal basis for the adoption of the Council decision is apparent.

(1) Council Document No 11436 ‘establishing the position to be adopted on behalf of the European Union with regard to certain resolutions to be voted in the framework of the International Organisation for Vine and Wine (OIV)’.
3.

In the event that the second question is also to be answered in the negative: Do the requirements relating to democracy and the rule of law on which Article 16 of the Charter of Fundamental Rights is clearly based and/or the requirement of fairness and efficiency under Article 47 of the Charter of Fundamental Rights and/or the obligation of transparency under Article 56 TFEU and/or the right not to be tried or punished twice under Article 50 of the Charter of Fundamental Rights preclude national rules like Paragraphs 52 to 54 of the GSpG, Paragraph 56a of the GSpG and Paragraph 168 of the StGB, the delimitation between which is not really foreseeable or predictable ex ante for a citizen, in the absence of clear legislative provision, and can be clarified in each specific case only through an expensive formal procedure, but which are associated with extensive differences in terms of competences (administrative authority or court), powers of intervention, the connected stigmatisation in each case and procedural position (e.g. reversal of the burden of proof)?
EN Official Journal of the European Union C 366/26

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy), lodged on 14 September 2012 — Anitrav v Roma Capitale

(Case C-420/12)

2012/C 366/46

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Associazione Nazionale Imprese Trasporto Viaggiatori (Anitrav)

Defendant: Roma Capitale

Question referred

Do Article 49 TFEU, Article 3 TEU, Articles 3 TFEU, 4 TFEU, 5 TFEU, 6 TFEU, 101 TFEU and 102 TFEU preclude the application of Articles 3(3), 8(3) and 11 of Law No 21 of 1992 [on the carriage of passengers by public non-scheduled car and coach services] in so far as the latter provisions respectively provide that ‘[t]he registered office of the carrier, and the garage, must be located, exclusively, within the territory of the municipality which issued the authorisation’, that ‘[i]n order to obtain and maintain an authorisation for a car- and driver-hire service it is necessary to have the use, pursuant to a valid legal title, of a registered office, a garage or a vehicle rank located in the territory of the municipality which issued the authorisation’ and that ‘[b]ookings for car- and driver-hire services shall take place at the garage. Each individual car- and driver-hire service must begin and end at the garage located in the municipality in which the authorisation was issued, returning to that garage, although the collection of the user and the user’s arrival at his destination may take place also in other municipalities’?
EN Official Journal of the European Union C 355/10

Action brought on 7 September 2012 — European Commission v Italian Republic

(Case C-411/12)

2012/C 355/16

Language of the case: Italian

Parties

Applicant: European Commission (represented by: B. Stromsky, S. Thomas and D. Grespan, acting as Agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by failing to adopt, within the prescribed period, all the measures necessary to abolish the State aid scheme found to be unlawful and incompatible with the common market by Commission Decision 2011/746/EU of 23 February 2011 on State aid granted by Italy to Portovesme Srl, ILA SpA, Eurallumina SpA and Syndial SpA (State aid measures C 38/B/2004 (ex NN 58/2004) and C 13/2006 (ex N 587/2005) (notified under document C(2011) 956 on 24 February 2012 and published in OJ 2011 L 309, pp. 1 to 22), the Italian Republic has failed to fulfil its obligations under Articles 3, 4 and 5 of that decision and under the TFEU Treaty;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period allowed by the decision for recovery of the State aid declared unlawful expired on 24 June 2011. Furthermore, the defendant was required to notify the Commission, by 24 April 2001, of the total amount of aid to be recovered and the measures taken and planned to comply with the decision.

At the date on which the present proceedings were brought, the defendant had not yet adopted the measures necessary to recover the aid granted to the recipient undertakings or communicated to the Commission all the information requested.
1.

Does the scope of Article 27 of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters extend also to cases in which two parties in one action each have the role of defendant because both parties have been sued by a third party, and in the other action have the roles of claimant and defendant? In such a situation are there proceedings ‘between the same parties’, or must the different claims raised by the claimant against the two defendants in the first action be examined separately, so that there cannot be taken to be proceedings ‘between the same parties’?
3.

If Question 2 is answered in the affirmative, what is the threshold for the reimbursement of expenses incurred by insured persons, in the event of a discrepancy in amount between the payments provided for under the legislation of the Member State of residence and the cost of the services provided for under the legislation of the Member State in which the treatment was carried out?
1.

Is heading 7321 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008, (2) to be interpreted as meaning that the stove pipe sets described in greater detail in the grounds can be regarded as parts of stoves, ranges, grates, and cookers?