ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 13/5

Reference for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 13 October 2011 — Laurence Prinz v Region Hannover

(Case C-523/11)

2012/C 13/09

Language of the case: German

Referring court

Verwaltungsgericht Hannover

Parties to the main proceedings

Applicant: Laurence Prinz

Defendant: Region Hannover

Question referred

Does it constitute a restriction of the right to freedom of movement and residence conferred on citizens of the European Union by Articles 20 and 21 TFEU, which is not justified under Community law, if pursuant to the Bundesausbildungsförderungsgesetz, a German national, who has her permanent residence in Germany and attends an education establishment in a Member State of the European Union, is only awarded an education grant for attending that education establishment abroad for one year because when she commenced her stay abroad she had not already had her permanent residence in Germany for at least three years?
EN Official Journal of the European Union C 13/6

Action brought on 28 October 2011 — European Commission v Italian Republic

(Case C-547/11)

2012/C 13/13

Language of the case: Italian

Parties

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

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— declare that: — by failing to take, within the prescribed period, all the measures necessary to recover the State aid declared unlawful and incompatible with the internal market by Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, respectively implemented by France, Ireland and Italy (‘Decision 2006/323’), the Italian Republic has failed to fulfil its obligations under Articles 5 and 6 of that decision and under the Treaty on the Functioning of the European Union; and — by failing to take, within the prescribed period, all the measures necessary to recover the State aid declared unlawful and incompatible with the internal market by Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, implemented by France, Ireland and Italy respectively (‘Decision 2007/375’), the Italian Republic has failed to fulfil its obligations under Articles 4 and 6 of that decision and under the Treaty on the Functioning of the European Union;

— order Italy to pay the costs.

Pleas in law and main arguments

The period for implementing Decision 2006/323 expired on 8 February 2006. The period for implementing Decision 2007/375 expired on 8 June 2007.

To date, the Italian Republic has not yet undertaken the full recovery of the aid declared unlawful by the decisions in question or informed the Commission that recovery has taken place. Moreover, the legal difficulties relied on by Italy as justification for the delay in implementing those decisions are not such as to make recovery absolutely impossible in accordance with the case-law of the Court.

The Commission complains next that, in breach of the obligation under the decisions in question to communicate information, Italy was late in informing it of the progress of the national procedures for implementing the decisions.
Appeal brought on 24 November 2011 by Omnicare, Inc. against the judgment of the General Court (First Chamber) delivered on 9 September 2011 in Case T-289/09: Omnicare, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Astellas Pharma GmbH

(Case C-587/11 P)

(2012/C 25/76)

Language of the case: English

Parties

Appellant: Omnicare, Inc. (represented by: M. Edenborough QC)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Astellas Pharma GmbH

Form of order sought

The appellant seeks an Order that the judgment under appeal be annulled. Further, the Appellant seeks an Order for its costs of this appeal and before the General Court.

Pleas in law and main arguments

The Appellant relies upon a single plea in law, namely that the General Court wrongly applied Article 8(1)(b) of Council Regulation (EC) № 207/2009 (1) (the ‘New Regulation’). This case involves an opposition brought by Astellas Pharma GmbH (formerly Yamanouchi Pharma GmbH) (the ‘Opponent’) based upon the Opponent's German trade mark registration № 394 01348 and an allegation of the existence of confusion pursuant to Article 8(1)(b) of the Council Regulation (EC) № 40/94 (2) (‘the Old Regulation’) (but which is identical to the pertinent parts of the New Regulation). As the earlier mark had been registered for more than five years before the Opposition was commenced, it was necessary for the Opponent to prove that the mark has been put to genuine use in order for it to be used as a basis for the Opposition.

It is submitted that the General Court wrongly held that the earlier trade mark upon which the Opponent relied had, as a matter of law, been put to genuine use. It is not disputed that the mark in question had actually been used in the course of trade by or with the consent of the Opponent in relation to the services for which it was registered. However, that use was in relation to the provision of services for which no charge was levied. Accordingly, as a matter of law, such use cannot be invoked to establish that the mark had been put to genuine use. This point has been the subject of some case law, which the Appellant submits (a) was mis-applied by the General Court, and (b) is inconsistent in any event. Accordingly, the matter of the legal consequences that ought to be drawn in such a factual scenario needs to be resolved by this Court.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1
Reference for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium), lodged on 31 October 2011 — Edgard Mulders v Rijksdienst voor Pensioenen

(Case C-548/11)

(2012/C 25/59)

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen

Parties to the main proceedings

Appellant: Edgard Mulders

Respondent: Rijksdienst voor Pensioenen

Question referred

Is Article 46 of Council Regulation (EEC) No 1408/71 (1) of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community infringed in the case where, in the calculation of the pension of a migrant worker, a period of incapacity for work during which a work incapacity benefit was awarded and contributions under the Netherlands General Law on Old-Age Pensions were paid is not regarded as being a ‘period of insurance’ within the meaning of Article 1(r) of Regulation (EEC) No 1408/71?

(1) OJ, English Special Edition 1971(II), p. 416.
Reference for a preliminary ruling from the Simvoulio tis Epikrateias lodged on 3 November 2011 — Enosis Epangelmation Asfaliston Ellados (EEAE), Sillogos Asfalistikon Praktoron Nomou Attikis (SPATE), Panellinios Sillogos Asfalistikon Simboulon (PSAS), Sindesmos Ellinon Mesiton Asfaliseon (SEMA), Panellinios Sindesmos Sintoniston Asfalistikon Simboulon (PSAS) v Ipourgos Anaptixis and Omospondias Asfalistikon Sillogon Ellados

(Case C-555/11)

(2012/C 25/61)

Language of the case: Greek

Referring court

Simvoulio tis Epikrateias (Council of State)

Parties to the main proceedings

Applicants: Enosis Epangelmation Asfaliston Ellados (Hellenic Association of Insurance Professionals, EEAE), Sillogos Asfalistikon Praktoron Nomou Attikis (Attica Association of Insurance Agents, SPATE), Panellinios Sillogos Asfalistikon Simboulon (Hellenic Association of Insurance Advisors, PSAS), Sindesmos Ellinon Mesiton Asfaliseon (Hellenic Insurance Broker Association, SEMA), Panellinios Sindesmos Sintoniston Asfalistikon Simboulon (Hellenic Association of Insurance Advisor Coordinators, PSAS).

Defendants: Ipourgos Anaptixis (Minister for Development), Omospondias Asfalistikon Sillogon Ellados (Federation of Hellenic Insurance Associations)

Question referred

Does the provision of the second subparagraph of Article 2(3) of Directive 2002/92/EC, which states: ‘These activities (those listed in the first subparagraph of that provision) when undertaken by an insurance undertaking or an employee of an insurance undertaking who is acting under the responsibility of the insurance undertaking shall not be considered as insurance mediation’, mean that an employee of an insurance undertaking who does not have the qualifications required under Article 4(1) of that directive is permitted to pursue the activity of insurance mediation on an incidental basis, and not as his main professional activity, even if that employee does not have an employment relationship with the undertaking, which however supervises his actions, or does the directive permit that activity to be pursued only within the framework of an employment relationship?
Appeal brought on 25 November 2011 by Alliance One International, Inc. against the judgment of the General Court (Third Chamber) delivered on 9 September 2011 in Case T-25/06: Alliance One International, Inc. v European Commission

(Case C-593/11 P)

(2012/C 25/78)

Language of the case: English

Parties

Appellant: Alliance One International, Inc. (represented by: C. Osti, A. Prastaro, G. Mastrantonio, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside, in its entirety, the judgment of the General Court of 9 September 2011 in case T-25/06 Alliance One v. Commission; and, in case the state of the proceedings so permits,

— annul Article 1(1) of the Contested Decision, in so far it relates to SCC, Dimon and Alliance One; and accordingly

— reduce the fines imposed on Transcatab and Dimon Italia (Mindo) so that the fines do not exceed 10 % of their turnover in the last fiscal year; and

— reduce the fine imposed on Transcatab and Dimon Italia (Mindo) as the multiplying factor is not applicable anymore since it was based on the group size;

— in any event, order the Commission to pay all the costs, including those incurred by Alliance One before the General Court.

Pleas in law and main arguments

Alliance One seeks: (i) the annulment, in its entirety, of the Contested Judgment; and, in addition, (ii) the annulment of Article 1(1) of the decision of the Commission of 20 October 2005 in case COMP/C.38.281/B.2 — Raw tobacco — Italy, in so far it relates to Standard Commercial Corp. (‘SCC’), Dimon Inc. (‘Dimon’) and Alliance One; and accordingly (iii) a reduction of the fines imposed on Transcatab S.p.A. (‘Transcatab’) and Dimon Italia S.r.l. (‘Dimon Italia’; now Mindo) so that the fines do not exceed 10 % of their turnover in the last fiancial year; or alternatively (iv) a reduction of the fine imposed on Trancatab and Dimon Italia (now Mindo) as the multiplying factor is not applicable; (v) in any event, to order the Commission to pay all the costs, including those incurred by Alliance One before the General Court.

Alliance One submits that the contested judgment should be set aside on the following grounds:

— Firstly the General Court infringed Article 296 TFEU and Articles 48 and 49 of the Charter of Fundamental Rights of the EU. The failure to conduct a concrete and full analysis of the relevant evidence produced by the Appellant in order to rebut the presumption of decisive influence and, consequently, to adequately substantiate its reasoning for the rejecting that evidence made the presumption of exercise of control all but rebuttable and this amounted to a breach of the principles of presumption of innocence, legality and individual liability.
EN Official Journal of the European Union C 39/9

Appeal brought on 15 November 2011 by ClientEarth against the order of the General Court (Sixth Chamber) delivered on 6 September 2011 in Case T-452/10: ClientEarth, supported by Kingdom of Denmark, Republic of Finland and Kingdom of Sweden, v Council of the European Union

(Case C-573/11 P)

2012/C 39/15

Language of the case: English

Parties

Appellant: ClientEarth (represented by: P. Kirch, avocat)

Other parties to the proceedings: Kingdom of Denmark, Republic of Finland, Kingdom of Sweden, Council of the European Union

Form of order sought

The applicant claims that the Court should:

— set aside the General Court's order of 6 September 2011 in Case T-452/10

— order the Council of the European Union to pay all costs.

Pleas in law and main arguments

The appellant submits that the General Court erred in law in its interpretation of the concepts of ‘independence’ and ‘third party’ in the context of the application of the first, third and fourth paragraphs of Article 19 of the Statute of the Court of Justice and Article 43(1) of the Rules of Procedure.
3.

In the event that the service provided in the terms described is not regarded as investment advice, does the mere fact of purchasing a complex financial instrument, into which category falls an interest rate swap arrangement, without the appropriateness test provided for in Article 19(5) of the MiFID Directive being carried out, for reasons imputable to the investment institution, give rise to fundamental nullity of the contract?
EN Official Journal of the European Union C 58/4

Action brought on 9 December 2011 — European Commission v Kingdom of the Netherlands

(Case C-635/11)

2012/C 58/05

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: J. Enegren and M. van Beek, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to ensure that, in the case of a company resulting from a cross-border merger which has its registered office in the Netherlands, the employees of establishments of that company that are situated in other Member States have the same entitlement to exercise participation rights as is enjoyed by the employees employed in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under subparagraph (b) of Article 16(2) (introductory sentence and second part of the sentence) of Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies; (1)

— order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

It is apparent from Article 16(2)(b) of Directive 2005/56/EC that the national law of the Member State in which the company resulting from the cross-border merger has its registered office must provide that employees of establishments of the company resulting from the cross-border merger that are situated in other Member States are to have the same entitlement to exercise participation rights in the company resulting from the cross-border merger as is enjoyed by those employees employed in the Member State in which that new company has its registered office.

Consequently, the national law transposing Directive 2005/56 must provide for all the situations envisaged in Article 16(2) of that directive.

This has not been the case in the Netherlands.

(1) OJ 2005 L 310, p. 1.
EN Official Journal of the European Union C 65/3

Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 28 November 2011 — ITV Broadcasting Limited e.a. v TV Catch Up Limited

(Case C-607/11)

2012/C 65/06

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: ITV Broadcasting Limited e.a.

Defendant: TV Catch Up Limited

Question referred

On the interpretation of Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (‘the InfoSoc Directivew’):

1. Does the right to authorise or prohibit a ‘communication to the public of their works by wire or wireless means’ in Article 3.1 of the Directive extend to a case where: (i) Authors authorise the inclusion of their works in a terrestrial free-to-air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State; (ii) A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream?

Does it make any difference to the answer to the above question if:

(a) The third party's sewer allows only a “one-to-one” connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?

(b) The third party's service is funded by advertising which is presented ‘pre-roll’ (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) ‘orin-skin’ (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?

(c) the intervening organisation is: (i) providing an alternative service to that of the original broadcaster, thereby acting in direct competition with the original broadcaster for viewers; or (ii) acting in direct competition with the original broadcaster for advertising revenues?

(1) OJ L 167, p. 10
EN Official Journal of the European Union C 65/6

Appeal brought on 16 December 2011 by 3F, formerly Specialarbejderforbundet i Danmark (SID) against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 27 September 2011 in Case T-30/03 RENV: 3F formerly Specialarbejderforbundet i Danmark (SID) v European Commission

(Case C-646/11 P)

2012/C 65/11

Language of the case: English

Parties

Appellant: 3F, formerly Specialarbejderforbundet i Danmark (SID) (represented by: P. Torbøl, advokat, V. Edwards)

Other parties to the proceedings: European Commission, Kingdom of Denmark

Form of order sought

The appellant claims that the Court should:

— Set aside the Judgment of the General Court in its entirety,

— Give final judgment on the matter,

— Order the Commission to pay the costs.

Pleas in law and main arguments

The appellant submits that the contested judgment should be set aside on the following grounds:

— The General Court erred in law in its interpretation and application of the case-law related to the assessment of the length of a preliminary examination under Article 108(3) TFEU.

— The General Court erred in law in its interpretation and application of the case-law on the meaning of ‘serious difficulties’ and the determination of whether such difficulties exist.
2.

First the Appellant submits that the Commission and the General Court misapplied Article 101(1) of the TFEU Treaty and Article 23(2) of Regulation 1/2003 by holding AOI liable for the infringement committed by Agroexpansión. The Appellant submits that the General Court breached its rights of defence and Article 296 TFEU by clarifying in the judgment (and therefore ex post facto) the reasoning regarding the standard of proof applied in the Commission's decision. Consequently, the Appellant submits that the General Court erred in law in defining the method for attributing liability, in particular by adopting a dual basis method, which served to discriminate between companies on the strength of their case on appeal but otherwise failed to establish a standard. In addition, the General Court could not have ignored the fact that the Commission failed to support its views in the decision regarding the absence of a rebuttal.
1.

Does Article 10 of Regulation (EC) No 178/2002 of the European Parliament and of the Council (1) preclude rules of national law under which the public may be informed, and may be given the name of the food or animal feed product and of the food or animal feed business under the name or corporate name of which the food or animal feed product was produced or handled or placed on the market, if food that is not injurious to health but is unfit for consumption, particularly food that is nauseating, is or has been placed on the market in significant quantities or if, because of its particular nature, such food has been placed on the market only in small quantities but over a lengthy period of time?
—

lift the immunity enjoyed by the Commission and authorise him to serve a garnishee order, which may also be in the form, in so far as is legally possible, of an order for the attachment of the assets necessary to cover the claim relating to the debt owed to him by the European Commission, in accordance with the summary payment order issued by the Giudice di pace di Tricase on 1 February 2010;
4.

When assessing possible justification and whether the system is a mechanism inherent in the tax system, what importance must be given to the extent of the discretion of the tax authorities? Is it necessary, as regards the mechanism inherent in the tax system itself, that the body applying the law has no discretion and that the conditions for the application of the derogation are set out precisely in the legislation?
EN Official Journal of the European Union C 174/15

Reference for a preliminary ruling from the Finanzgericht des Landes Sachsen-Anhalt (Germany) lodged on 8 March 2012 — Magdeburger Mühlenwerke GmbH v Finanzamt Magdeburg

(Case C-129/12)

2012/C 174/23

Language of the case: German

Referring court

Finanzgericht des Landes Sachsen-Anhalt

Parties to the main proceedings

Applicant: Magdeburger Mühlenwerke GmbH

Defendant: Finanzamt Magdeburg

Question referred

Did Commission Decision C(1998) 1712 of 20 May 1998 (1) grant the German legislature discretion in relation to the formulation of point 4 of the second sentence of Paragraph 2 of the Investitionszulagengesetz (‘InvZulG 1996’) (Law on investment grants of 1996) in the version of the Steuerentlastungsgesetz 1999 (Law on tax relief of 1999) of 19 December 1998, whereby a scheme would be covered by that discretion if it promotes investments under that scheme, in relation to which the binding investment decision was made before the expiration of the period for the implementation of the Commission Decision or before the publication of the intended measures in the Bundessteuerblatt (Federal Tax Journal, ‘BStBl’), but the delivery of the capital asset and the determination and disbursement of the grant take place afterwards?

(1) 1999/183/EC: Commission Decision of 20 May 1998 concerning State aid for the processing and marketing of German agricultural products which might be granted on the basis of existing regional aid schemes (OJ 1999 L 60, p. 61).
—

Set aside in part the judgment of the General Court (Fourth Chamber) of 8 November 2011 in Case T-88/09 in so far as it: — failed to recognise that Idromacchine suffered material damage; — recognised that Idromacchine suffered only negligible non-material damage; — failed to recognise that Messrs Capuzzo suffered non-material damage; — accordingly, grant the forms of order sought by the appellants at first instance.