ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 24/38

Appeal brought on 25 November 2009 by Holland Malt B.V. against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 September 2009 in Case T-369/06: Holland Malt B.V. v Commission of the European Communities

(Case C-464/09 P)

2010/C 24/67

Language of the case: English

Parties

Appellant: Holland Malt B.V. (represented by: O. W. Brouwer, A.C.E. Stoffer, P. Schepens, advocaten)

Other parties to the proceedings: Commission of the European Communities, Kingdom of the Netherlands

Form of order sought

The appellant claims that the Court should:

— Set aside paragraphs 168 to 180 of the judgment of the court of First Instance;

— Refer the case back to the CFI or annul the decision of the Commission; and

— Order the Commission to pay the costs of the proceedings

Pleas in law and main arguments

The appeal is directed against the judgment of the Court of First Instance of 9 September 2009 in case T-369/06, Holland Malt B.V. v. Commission (the Judgment), dismissing the application brought by Holland Malt against the decision of the Commission declaring that a subsidy conditionally granted to the Appellant constitutes incompatible aid. The Appellant submits that the Court of First Instance made errors of law and a procedural error in dismissing the application brought by Holland Malt. In this regard, the Appellant has forwarded the following pleas:

A. The Court of First Instance erred in law in paragraphs 169 to 180 of the Judgment by incorrectly interpreting Article 87(3)(c) EC (1) and by incorrectly interpreting and applying the Community Guidelines on state aid in the agricultural sector. In this regard, the Judgment is moreover vitiated by an inconsistent and inadequate reasoning; and

B. The Court of First Instance committed a procedural error in paragraph 168 of the Judgment by misreading and misrepresenting one of the arguments submitted by the Appellant, which adversely affected the interests of the Appellant.

(1) OJ C 321 E, p. 76
EN Official Journal of the European Union C 37/2

Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland), lodged on 11 November 2009 — Zakład Ubezpieczeń Społecznych v Stanisława Tomaszewska

(Case C-440/09)

2010/C 37/03

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Appellant: Zakład Ubezpieczeń Społecznych

Respondent: Stanisława Tomaszewska

Question referred

Is Article 45(1) of Council Regulation (EEC) No 1408/71 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 (OJ, English Special Edition 1971 (II), p. 416), in conjunction with Article 15(1)(a) of Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159), to be interpreted as meaning that the competent institution of a Member State is required — on establishing that a worker has failed to satisfy the condition of having completed in that Member State a period of insurance which is sufficient under the law of that State for acquisition of entitlement to a retirement pension — to take account of a period of insurance completed in another Member State in such a way that it must recalculate the period of insurance on which acquisition of entitlement depends by applying the rules arising from national law and treating the period completed in the other Member State as a period completed in its own State, or must it add the period completed in the other Member State to the national period calculated previously on the basis of the rules in question?
8.

The proprietor contends on this appeal that: (i) The purpose of the deeming provisions in rule 77 is to provide that OHIM has discharged its obligations to notify a party when it sends a notification to a party's representative in relation to matters for which that representative has authority to act. OHIM is not then obliged to do anything further. But this is not a relevant consideration in the present case. (ii) The ‘cause of non-compliance’ with the time limit is removed, in the case of time limits for payment of renewal fees, when the trade mark proprietor itself, and/or the person specifically delegated by it as responsible for payment, actually becomes aware of the unintended failure to pay. Any other conclusion would render the relevant provision unworkable: in particular a professional representative will always know of and be expected to be aware of the relevant time limits so that the sending of a notification by OHIM to him/her would ordinarily be irrelevant anyway. (iii) Payment of renewal fees is a simple financial transaction that does not require legal representation. So a party can pay the fees itself or delegate any other person to do so. Where the ‘representative’ of a party — who acted for the party in proceedings before the Office — is not also under a separate responsibility to pay renewal fees, then notification of non-payment to that representative is not relevant; it is not notice to the party and it cannot be so deemed. That representative is not legally responsible for acting on such notification (though may transmit it to his client as a matter of professional courtesy). (iv) On facts such as the present facts, a representative for other purposes is not a ‘duly authorized representative’ for the purpose of payment of renewal fees. Notice to him/her therefore does not satisfy rule 77 and does not bring the ‘deeming’ provision into play. (v) In summary, the relevant person to be considered is the one with responsibility for taking the act in question. Only when that person becomes aware of the non-compliance can the relevant time period for an application begin to run. (vi) While the provisions of the EPC are not strictly binding in community law, they must clearly be highly persuasive. Where there is EPO case law on the same wording, it is highly desirable that it be construed in the same way. If interpreted differently, then one or the other interpretation must be wrong. The appellant submits that the parallel decisions in the EPO are correct and that their reasoning is correct.
EN Official Journal of the European Union C 37/3

Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 23 November 2009 — Claude Chartry v État belge

(Case C-457/09)

2010/C 37/05

Language of the case: French

Referring court

Tribunal de première instance de Liège

Parties to the main proceedings

Applicant: Claude Chartry

Defendant: État belge

Question referred

‘Do Article 6 [EU] and Article 234 [EC] preclude national legislation, such as the Law of 12 July 2009 amending Article 26 of the Law [on the Constitutional Court], from requiring the national court to make a reference to the Constitutional Court for a preliminary ruling, if it finds that a citizen taxpayer has been deprived of the effective judicial protection guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated into Community law, by another national law, [namely] Article 49 of the Law … of 9 July 2004, without that national court being able to ensure immediately the direct [effect] of Community law [in the] proceedings before it and without being able also to carry out a review of its compliance with the Convention where the Constitutional Court has recognised the compatibility of the national legislation with the fundamental rights guaranteed by Title II of the [Belgian] Constitution?’
EN Official Journal of the European Union C 37/30

Action brought on 18 December 2009 — European Commission v Hellenic Republic

(Case C-534/09)

2010/C 37/37

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M Patakia and A. Alcover San Pedro)

Defendant: Hellenic Republic

Form of order sought

— declare that, by failing to take the necessary measures to ensure that the competent national authorities see to it, by means of permits in accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007, without prejudice to specific Community legislation, the Hellenic Republic has failed to fulfil its obligations under Article 5(1) of Directive 2008/1/EC (1) of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

It follows from Article 5(1), in conjunction with Article 2(4), of Directive 2008/1 (‘the IPPC Directive’) that the Member States are obliged to ensure that their competent authorities see to it, by means of permits in accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of the directive not later than 30 October 2007.

According to the response of the Greek authorities to the Commission’s reasoned opinion, roughly 47 % of existing installations operating in Greece (148 out of 317) do not have an IPPC permit. Consequently, the Hellenic Republic admits that it continues to allow a large number of IPPC installations to operate without appropriate permits being granted.

It should be noted that the Hellenic Republic has provided no justification or further explanation regarding the increase in the facilities in question, and no further development has been notified since the date upon which the abovementioned response to the reasoned opinion was sent.

(1) OJ L 24, 29.1.2008, p. 8.
1.

Is Article 1(a) of 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 (1) to be interpreted as meaning that it also covers — for a period of six months — a person who, following the end of the two-year statutory suspension of her employment relationship following the birth of a child, agrees a further six-month period of unpaid leave with her employer in order to draw childcare allowance or a corresponding compensatory benefit for the maximum statutory period, and then terminates the employment relationship?
1.

Does Article 4 of Community Regulation No 882/2004, (1) in conjunction with Article 6 thereof, establish an individual right for citizens to be subject to controls on foodstuffs and beverages only by staff who fulfil the requirements laid down in that regulation, and may such a right be relied on in legal proceedings and used as a defence to enforcement action by the Member States?
EN Official Journal of the European Union C 148/11

Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 29 December 2009 — Generalbundesanwalt beim Bundesgerichtshof v E and F

(Case C-550/09)

2010/C 148/18

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Prosecutor: Generalbundesanwalt beim Bundesgerichtshof

Defendants: E, F

Questions referred

1. Taking account, if appropriate, of the amended procedure resulting from the decision of the Council of the European Union of 28 June 2007 (2007/445/EC), (1) is the listing on the basis of Article 2 of Council Regulation (EC) No 2580/2001 (2) of 27 December 2001 of an organisation which has not brought proceedings contesting the decisions concerning it to be regarded as effective from the outset even if basic procedural guarantees were infringed in listing it?

2. Are Articles 2 and 3 of Council Regulation (EC) No 2580/2001 of 27 December 2001 to be interpreted as meaning that funds, financial assets and economic resources are made available to a legal person, group or entity included in the list referred to in Article 2(3) of the regulation, that there is involvement in such provision or that there is participation in activities to circumvent Article 2 of the regulation even where the provider is, himself, a member of the legal person, group or entity?

3. Are Articles 2 and 3 of Council Regulation (EC) No 2580/2001 of 27 December 2001 to be interpreted as meaning that funds, financial assets and economic resources are made available to a legal person, group or entity included in the list referred to in Article 2(3) of the regulation, that there is involvement in such provision or that there is participation in activities to circumvent Article 2 of the regulation even where the asset to be provided already is, if only in the broader sense, accessible to the legal person, group or entity?

(1) Council Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58).

(2) Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).
EN Official Journal of the European Union C 80/11

Action brought on 23 December 2009 — European Commission v French Republic

(Case C-549/09)

2010/C 80/18

Language of the case: French

Parties

Applicant: European Commission (represented by: E. Gippini Fournier and K. Walkerová, Agents)

Defendant: French Republic

Form of order sought

— declare that, by failing to implement the Commission Decision of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (1) by recovering from the beneficiaries the aid which was declared unlawful and incompatible with the common market in Articles 2 and 3 of that decision, and by failing to inform the Commission of the measures taken to comply with that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 4 and 5 of that decision;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains that the defendant has still not taken the measures necessary to recover, ‘without delay’, from the beneficiaries the aid declared unlawful and incompatible with the common market or, in any event, has not communicated those measures to the Commission.

France was to inform the Commission, within a period of two months from notification of the decision, of the measures taken to comply with that decision. However, more than five years have elapsed since the French authorities received that decision and no reimbursement of the aid granted has been made.

The applicant recalls furthermore that, according to settled case-law, the only defence available to a Member State against infringement proceedings brought by the Commission on the basis of Article 108(2) TFEU is to plead that it was absolutely impossible to implement the decision. However, the French authorities have never pleaded exceptional and unforeseeable difficulties rendering implementation of the decision impossible. They have merely indicated that they intended to take the relevant recovery measures jointly with another matter concerning recovery of other incompatible aid.

(1) Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (OJ 2005 L 74, p. 49).
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/46/EC (1) of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 80/21

Appeal by the Republic of Austria brought on 28 January 2010 against the judgment of the Court of First Instance (Sixth Chamber) of 18 November 2009 in Case T-375/04 Scheucher-Fleisch GmbH and Others v Commission of the European Communities

(Case C-47/10 P)

2010/C 80/36

Language of the case: German

Parties

Appellant: Republic of Austria (represented by: E. Riedel, acting as Agent; M. Núñez-Müller and J. Dammann, lawyers)

Other parties to the proceedings: Scheucher-Fleisch GmbH, Tauernfleisch Vertriebs GmbH, Wech-Kärntner Truthahnverarbeitung GmbH, Wech-Geflügel GmbH, Johann Zsifkovics, European Commission

Forms of order sought

The Republic of Austria claims that the Court should:

— set aside the judgment of the Court of First Instance of 18 November 2009 in Case T-375/04 (Scheucher and Others v Commission);

— give final judgment in the case and dismiss the application as inadmissible or, in the alternative, as unfounded;

— order the applicants in the original proceedings to pay the costs on appeal and the costs of the first instance proceedings in Case T-375/04.

Pleas in law and main arguments

The appellant argues that the contested judgment infringes Article 263(4) TFEU. The Court overlooked the fact that the applicants in the original proceedings were not individually or directly affected by the Commission decision in dispute. The contested decision did not lead to any noticeable prejudice to their market position, and the general sectoral aid rules of the Republic of Austria, approved by the Commission, did not lead to any distortions of competition since the granting of aid was dependent in each case on an individual decision by the relevant authorities. Finally, the applicants in the original proceedings do not have the necessary legal interest in bringing proceedings, as the contested decision of the Commission does not affect them themselves.

The appellant further argues that the contested judgment infringes Article 108(2) TFEU. The Court erred in law by assuming that, during the preliminary investigation procedure, the Commission encountered serious difficulties in assessing the disputed measures and was therefore obliged to initiate the formal investigation procedure.

The appellant also takes the view that the contested judgment infringes the rules on the burden of proof. The Court obliged the Commission to initiate the formal investigation procedure, even though the applicants had not produced the necessary evidence that they were affected.

In the appellant's submission, the contested judgment also infringes Article 81 of the Rules of Procedure of the Court for contradictory reasoning.

Finally, the appellant argues that the contested decision infringes Article 64 of the Rules of Procedure, because the Court failed to verify circumstances that were relevant for the decision by measures of organisation of procedure.
EN Official Journal of the European Union C 63/36

Appeal brought on 6 January 2010 by Giampietro Torresan against the judgment of the Court of First Instance (Second Chamber) delivered on 19 November 2009 in Case T-234/06 Torresan v Office for Harmonisation in the Internal Market (Trade marks and Designs) (OHIM) and Klosterbrauerei Weissenohe GmbH & Co. KG

(Case C-5/10 P)

2010/C 63/57

Language of the case: Italian

Parties

Appellant: Giampietro Torresan (represented by: G. Recher and R. Munarini, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Klosterbrauerei Weissenohe GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

— set aside the judgment in Case T-234/06, Reg. No 414968, notified by fax on 19 November 2009;

— uphold in their entirety the forms of order sought by Mr Torresan before the Court of First Instance (now ‘the General Court’) in Case T-234/06;

— in any event, order OHIM to pay the costs of the proceedings in their entirety, including the costs incurred before OHIM and in the proceedings before the General Court.

Pleas in law and main arguments

(i) Infringement and/or misapplication of the Community legislation concerning agriculture and foodstuffs;

(ii) Infringement and/or misapplication of the legislation on consumer protection, with regard to the notion of the average consumer;

(iii) Infringement of the language rules for proceedings;

(iv) Distortion of the facts or the evidence, all factors designed to confirm, as the sole and ultimate inference, the absolutely distinctive and non-descriptive character of the mark Cannabis, with a view to establishing the infringement or misapplication of Article 7(1)(c) of the Trade Mark Regulation (1) and the contradictory nature of the reasoning followed by the General Court in support of the finding that the mark Cannabis is descriptive. In consequence, it will be appropriate to declare that the judgment in Case T-234/06 — the judgment under appeal — is set aside in its entirety.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 100/28

Reference for a preliminary ruling from the Corta Suprema di Cassazione (Italy) lodged on 9 February 2010 — Ugo Cifone v Giudice delle indagini preliminari del Tribunale di Trani

(Case C-77/10)

2010/C 100/42

Language of the case: Italian

Referring court

Corta Suprema di Cassazione

Party to the main proceedings

Applicant: Ugo Cifone

Question referred

The Court of Justice is requested to interpret Articles 43 and 49 of the Treaty establishing the European Union with reference to freedom of establishment and freedom to provide services in the sector of betting on sports events in order to establish whether or not those Treaty provisions permit national rules establishing a State monopoly and a system of licences and authorisations which, within the context of a given number of licences: (a) tend generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded some operators; (b) in fact ensure the maintenance of commercial positions acquired following a procedure that unlawfully excluded certain operators (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence; (c) provide cases in which the licence may lapse with forfeiture of very large guarantee deposits, including the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence.