ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 38/4

Appeal brought on 22 November 2010 by Quinta do Portal SA against the judgment of the General Court (Eighth Chamber) delivered on 8 September 2010 in Case T-369/09 Quinta do Portal v OHIM

(Case C-541/10 P)

2011/C 38/05

Language of the case: Portuguese

Parties

Appellant: Quinta do Portal (represented by Bolota Belchior, advogado)

Other parties to the proceedings: the Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallegre — Vinhos do Porto, SA

Form of order sought

— Setting aside of the judgment of the General Court in its entirety;

— a declaration allowing in full the appellant’s claims at first instance, namely, annulment of the decision of 18 June 2009 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (‘the Office’), which dismissed the appeal brought against the decision of the Community trade marks Cancellation Division which, in its turn, declared invalid the Community trade mark No 004009908 PORTO ALEGRE registered on 16 May 2006, published in Community Trade Marks Bulletin No 30/2005 of 25 July 2005 (Case R 1012/2008-1);

— an order that the respondent should pay the costs at both instances.

Pleas in law and main arguments

The words ‘Porto Alegre’ and ‘Vista Alegre’ are dissimilar conceptually, as regards the dominant element of the mark as a whole, and dissimilar graphically and phonetically, for the two words of the two trade marks are different.

The decisive factor in the distinctiveness of the Community trade mark applied for is the combination of the words ‘Porto’ and ‘Alegre’, which form, together, a single logical and conceptual unit.

The word ‘Alegre’ does not form the dominant element of the Community trade mark. Having regard to the effect of that issue in evaluating the similarity of signs, it must be noted that that is not so in the present case.

The judgment under appeal misinterpreted Article 8(1)(b) of both Regulation No 40/94 (1) and Regulation (EC) No 207/2009 (2) (the wording is the same in the two regulations), so infringing them.

The judgment under appeal failed to take into account those arguments raised in the action before the General Court, for it did not assess them.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).
—

to declare that, by failing to notify in full the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), or by failing fully to inform the Commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 55/18

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 29 November 2010 — Deli Ostrich NV v Belgische Staat

(Case C-559/10)

2011/C 55/32

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties to the main proceedings

Applicant: Deli Ostrich NV

Defendant: Belgische Staat

Question referred

The Rechtbank van eerste aanleg te Antwerpen asks the Court of Justice to give a ruling on which tariff subheading should be applied, as at the date of the declaration of 22 October 2007, in respect of import duties on meat from camels which, indisputably, are not kept in captivity.
2.

Is the clause conferring jurisdiction effective as against the sub-buyer and its subrogated insurers even if Article 5(1) of Regulation No 44/2001 of 20 December 2000 does not apply to the sub-buyer’s action against the manufacturer, as the Court held in its judgment of 17 June 1992 in Handte (2)?
EN Official Journal of the European Union C 72/9

Appeal brought on 13th December 2010 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 30th September 2010 in Case T-85/09: Yassin Abdullah Kadi v European Commission

(Case C-584/10 P)

2011/C 72/15

Language of the case: English

Parties

Appellant: European Commission (represented by: P. Hetsch, S. Boelaert, E. Paasivirta, and M. Konstantinidis, Agents)

Other parties to the proceedings: Yassin Abdullah Kadi, Council of the European Union, French Republic, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellants claims that the Court should:

— Set aside, in whole, the contested judgment;

— Dismiss Yassin Abdullah Kadi's application for the annulment of Commission adopted Regulation No 1190/2008 (1) insofar as it concerns him, as unfounded;

— Order that Yassin Abdullah Kadi pays the Commission's costs of this appeal and the proceedings before the General Court.

Pleas in law and main arguments

The Commission submits that the General Court's findings are vitiated by errors of law, as they are based on a legally erroneous standard for judicial review. The pleas of the Commission are as follows:

1. Pleas relating to the General Court's findings on the applicable standard of judicial review: The Commission submits that the standard of judicial review adopted by the General Court is legally erroneous because the Court of Justice has not settled the precise standard of judicial review applicable to this case and because the particular standard of judicial review adopted by the General Court cannot be required from the EU.

2. Pleas relating to the General Court's findings on the infringement of the rights of the defence and the right to effective judicial protection and to the infringement of the principle of proportionality: The Commission argues that the General Court erroneously held that the procedures applied by the Commission did not fulfil the fundamental rights requirements for this type of restrictive measures regime; that the GC erroneously dismissed the Commission's argument regarding the domestic proceedings brought by Mr Kadi in the United States; and that the GC erroneously dismissed the Commission's arguments regarding the administrative review and re-examination procedures established pursuant to UNSC Resolutions 1822(2008) and 1904(2009) – including the Focal Point procedure and the Office of the Ombudsperson.

(1) OJ L 322, p. 25
Is it relevant to the answer to that question:

that the person acquiring the goods was a trader with its seat in a third State, which admittedly dispatched the object of the supply in the course of a chain transaction from one Member State to another Member State, but is not registered for VAT purposes in any Member State,

and

whether the taxable person has proved that the person acquiring the goods submitted a tax return concerning the intra-Community acquisition.
3.

Does the limitation period for claims in respect of interest begin to run when an irregularity is committed or when a continuous or repeated irregularity ceases even if the claims in respect of interest relate to later periods and therefore do not arise until a later date? In the case of continuous or repeated irregularities, is commencement of the limitation period postponed under the second subparagraph of Article 3(1) of the Regulation until the day on which the irregularity ceases in the case of claims in respect of interest as well?
EN Official Journal of the European Union C 72/14

Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 23 December 2010 — Insinööritoimisto InsTiimi Oy

(Case C-615/10)

2011/C 72/23

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Appellant: Insinööritoimisto InsTiimi Oy

Other party: Puolustusvoimat

Question referred

Is Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts applicable, having regard to Article 10 of that directive and to Article 346(1)(b) of the Treaty on the Functioning of the European Union and to the list of arms, munitions and war material adopted by decision of the Council on 15 April 1958, to a procurement which otherwise falls within the scope of the directive, when according to the contracting entity the intended purpose of the object of procurement is specifically military, but there also exist largely identical technical applications of the object of procurement in the civilian market?

(1) OJ 2004 L 134, p. 114.
EN Official Journal of the European Union C 103/11

Appeal brought on 29 January 2010 by Antoni Tomasz Uznański against the order of the Court of First Instance (Eighth Chamber) made on 27 November 2009 in Case T-348/09 Uznański v Poland

(Case C-143/10 P)

2011/C 103/18

Language of the case: Polish

Parties

Appellant: Antoni Tomasz Uznański (represented by: A. Nowak, adwokat)

Other party to the proceedings: Republic of Poland

By order of 19 November 2010, the Court of Justice (Seventh Chamber) dismissed the appeal.
3.

If Question 2 is answered in the negative: Is the office responsible for paying the refund entitled, in circumstances such as those of the main proceedings, to take the words in box 2 of the export declaration literally and to refuse an application for an export refund on the ground that the applicant for the refund is not the exporter of the goods covered by that application, or is the responsible office obliged, when there is a contradiction between the description of the exporter in box 2 of the export declaration and the previous document to which reference is made in box 40 and/or the holder of the export licence registered in box 44, to consult the applicant for a refund and, if necessary, to amend of its own motion the words in box 2 of the export declaration?
EN Official Journal of the European Union C 95/5

Reference for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 11 January 2011 — Maria das Dores Meira da Silva v Zurich — Companhia de Seguros SA

(Case C-13/11)

2011/C 95/08

Language of the case: Portuguese

Referring court

Tribunal da Relação de Guimarães

Parties to the main proceedings

Applicant: Maria das Dores Meira da Silva

Defendant: Zurich — Companhia de Seguros SA

Questions referred

1. In a road-traffic accident involving a motor vehicle and a pedestrian crossing the road, in which the pedestrian suffers personal and material damage, is the exclusion of compensation for such loss where the loss-causing event is due to the conduct of the pedestrian — in accordance with Articles 505 and 570 of the Portuguese Civil Code as interpreted — contrary to Community law and in particular to Articles 3(1) of the First Directive (72/166/EEC), (1) 2(1) of the Second Directive (84/5/EEC) (2) and 1a of the Third Directive (90/232/EEC), (3) inserted by Article 4 of the Fifth Directive (2005/14/EC) (4) (all relating to insurance against civil liability in respect of the use of motor vehicles), in the light of the case-law of the Court of Justice concerning the circumstances in which compensation on the basis of compulsory motor vehicle insurance may be excluded?

2. If the answer is in the affirmative, that is, that such an exclusion of compensation is contrary to Community law, is the interpretation of the abovementioned provisions of Portuguese civil law to the effect that such compensation may be limited or reduced having regard to the fault of the pedestrian, on the one hand, and the risk posed by the motor vehicle, on the other, in causing the accident, consistent with the Community directives referred to?

(1) Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360).

(2) Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17).

(3) Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).

(4) Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (OJ 2005 L 149, p. 14).
EN Official Journal of the European Union C 120/5

Reference for a preliminary ruling from the Tribunale di Rovereto (Italy) lodged on 11 February 2011 — Criminal proceedings against John Austine

(Case C-63/11)

2011/C 120/09

Language of the case: italian

Referring court

Tribunale di Rovereto

Party to the main proceedings

John Austine

Question referred

In the light of the principles of sincere cooperation and the effectiveness of directives, are Articles 15 and 16 of Directive 2008/115/EC (1) to be interpreted as precluding a Member State from providing that an illegally staying third country national who fails to cooperate in the administrative return procedure is to be subject to measures involving deprivation of liberty on the basis of measures, other than detention measures, as defined under national law, in the absence of the requirements and safeguards laid down in Articles 15 and 16, on grounds of failure to comply with a removal order issued by the competent administrative authorities in accordance with Article 8(3) of the directive?

(1) OJ 2008 L 348, p. 98.
3.

If Question (2) is answered in the negative, are the principles of freedom to provide services and the free movement of capital to be interpreted as precluding a Member State from imposing measures on credit institutions under which they may not, in consumer credit agreements, apply bank charges which are not on the list of permitted charges, unless those permitted charges have been defined in the legislation of the State concerned?
3.

If the answer to Question 1 is in the negative and a statement in the sense described in Question 2 is intended to cover at least also health-related well-being: Having regard to the freedom of expression and information under Article 6(3) TEU, in conjunction with Article 10 of the ECHR, is it consistent with the Community law principle of proportionality to include in the scope of the prohibition laid down in the first sentence of Article 4(3) of Regulation (EC) No 1924/2006 a statement that a particular beverage containing more than 1,2 % by volume of alcohol does not place a strain on or adversely affect the body or its functions?
Error on the part of the General Court in failing to state adequate reasons in the judgment under appeal.

Failure by the General Court, in delivering the judgment under appeal, to state reasons and to provide justification; and exceeding of its jurisdiction.
(b)

Is the reasoning of the Court of Justice in Case C-352/06 Bosmann [2008] ECR I-3827, paragraphs 31 to 33, relevant to the application of the abovementioned provisions? Does Article 15 of the Headquarters Agreement in conjunction with Article 36 of the Statute of the ESCB and ECB not deprive the Federal Republic of Germany of the power to grant family benefits to employees of the ECB resident in Germany?
1.

Does the fact that the personal scope of the first sentence of Article 14(2) 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 (1) covers ‘a person normally employed in the territory of two or more Member States’ — in respect of whom it is specified in Article 14(2)(b) that this is a person other than that referred to in Article 14(2)(a) — mean, in the case of an employed person who is employed in an employment relationship by a single employer, (a) that he is to be considered such a person if, on account of the nature of the employment, he performs work in different Member States at the same time (simultaneously), which also includes relatively short periods of time, and therefore frequently crosses State borders, and also (b) that he is to be considered such a person too if in the context of a single employment relationship he is obliged to perform work permanently (normally) in several Member States, including the State in which he resides, or in several Member States other than that of his State of residence — either irrespective of the length of the consecutive periods in which he performs his obligations in the individual Member States and the length of the intermissions between them, or with a temporal limit?
EN Official Journal of the European Union C 152/18

Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 25 March 2011 — Secretary of State for Work and Pensions v Margita Punakova

(Case C-148/11)

2011/C 152/32

Language of the case: English

Referring court

Upper Tribunal

Parties to the main proceedings

Applicant: Secretary of State for Work and Pensions

Defendant: Margita Punakova

Questions referred

In circumstances where a claimant:

(a) is a citizen of the Czech Republic;

(b) came to the United Kingdom before her country acceded to the EU;

(c) remained here following accession;

(d) thereafter established herself in self-employment under Article 49 TFEU (ex. Article 43 TEC);

(e) is no longer in self-employment; and

(f) is the primary carer of a child who entered general education while she was established in self-employment,

does the claimant have a right to reside in the United Kingdom on the basis that:

(a) Regulation 1612/68 (1) applies, together with the reasoning of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, London Borough of Harrow v Ibrahim (Case C-310/08) and Teixeira v London Borough of Lambeth (Case C-480/08);

(b) there is a general principle of EU law that equates the position of workers and the self-employed;

(c) it would impede or deter the freedom of establishment if the claimant did not have a right to reside; or

(d) some other basis?

(1) OJ L 257, p. 2
2.

If question 1 is to be answered in the affirmative: (a) Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there be an act of persecution, within the meaning of Article 9(1)(a) of Directive 2004/83/EC, also in cases where, in the country of origin, the practice of faith in public gives rise to a risk to life or limb or physical freedom and the applicant accordingly abstains from such practice? (b) If the core area of religious freedom can also comprise certain religious practices in public: — does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such practice of his faith is indispensable in order for him to preserve his religious identity, — or is it further necessary that the religious community to which the applicant belongs should regard that religious practice as constituting a central part of its doctrine, — or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin?
(a)

Does the general Community principle of non-discrimination and equality preclude national rules (such as that laid down by Article 2(1)a of Legislative Decree No 368/2001) which introduced into the national legal order an ‘acausal’ case that places at a disadvantage employees of Poste Italiane SpA, and, in relation to that company, other undertakings in the same sector or in other sectors?
2.

Is Article 168(1)(a) of Council Directive 2006/112/EC to be interpreted as meaning that the right of deduction on the purchase of an immovable property which is allocated to the business assets of a taxable person arises immediately in the tax period in which the tax became due, regardless of the fact that the property cannot be used in view of the absence of approval for its commissioning as required by law?
EN Official Journal of the European Union C 179/12

Action brought on 14 April 2011 — European Commission v Republic of Malta

(Case C-178/11)

2011/C 179/23

Language of the case: English

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro, K. Mifsud-Bonnici, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

— Declare that, by failing to establish strategic noise maps in respect of the major roads and agglomeration identified by Malta in its report under the second subparagraph of Article 7(1) of Directive 2002/49/EC (1), to make them available and disseminate them to the public, and to send the information from these strategic noise maps to the Commission, Malta has failed to fulfil its obligations under the first subparagraph of Article 7(1), Article 9(1) and Article 10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25 June relating to the assessment and management of environmental noise; and

— order Republic of Malta to pay the costs.

Pleas in law and main arguments

According to the report that Malta submitted in 2006 pursuant to the second subparagraph of article 7(1) of the directive, 1 agglomeration as well as 43 major roads within Malta's territory fall within the scope of the directive. It follows that strategic noise maps for this agglomeration as well as for the major roads in question should have been established by 30 June 2007 and should have been made available and disseminated to the public. Additionally, information from these strategic noise maps and summaries of the local action plans should have been sent to the Commission by 30 December 2007.

It is apparent that to date, due to internal obstacles relating to national tendering procedures, Malta has failed to fulfil its obligations to make strategic noise maps for the agglomeration and the major roads in question, to make available and disseminate the strategic noise maps to the public and to communicate the relevant information to the Commission.

(1) Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise — Declaration by the Commission in the Conciliation Committee on the Directive relating to the assessment and management of environmental noise

OJ L 189, p. 12