ddrg/super_eurlex huggingface dataset:
1.

Must Article 2(i) and (k) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, (1) in conjunction with Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, (2) and with point D10 of Annex IIA and point R1 of Annex IIB to that directive, be interpreted to the effect that the first of the criteria defined by the Court of Justice in its judgment of 13 February 2003 in Case C-458/00 Commission v Luxembourg [2003] ECR I-1553 for it to be possible for the incineration of waste to be regarded as the recovery of waste to generate energy within the meaning of point R1 of Annex IIB to that directive (that is, the main purpose of the operation must be to enable waste to fulfil a useful function, namely the generation of energy) may also be satisfied in a case in which none of the circumstances is present which the Court of Justice mentioned in that judgment as factors testifying to recovery of waste, that is to say, where the operator of the installation in which waste is to be incinerated does not make a payment for the operation to the supplier of the waste and the installation is not technically adapted to be capable of operation on the basis of primary energy sources in the event of a shortage of waste?
EN Official Journal of the European Union C 267/48

Action brought on 11 September 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-363/09)

2009/C 267/80

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: L. Parpala and F. Jimeno Fernández, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that by maintaining in force Article 38 of Law 43/2002 of 20 November 2002 on plant health, the Kingdom of Spain has failed to fulfil its obligations under Article 13 of Directive 91/414/EEC (1)

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Directive 91/414/EEC responds to the need to harmonise the provisions of national law relating to the marketing of plant protection products. For that purpose it lays down uniform rules on the conditions and procedures for the authorization of such products.

Article 13 of that Directive sets out the rules relating to (i) the data which must be submitted by applicants for the authorisation of a particular plant protection product and (ii) the use and protection of that data, safeguarding, apart from specified exceptions, the confidentiality of that data.

The Directive is a complete harmonisation and, consequently, a Member State cannot adopt legislation at national level which requires economic operators to share data submitted by the first applicant for authorisation, except on the conditions laid down in Article 13(7).

Nevertheless, Article 38 of Law 43/2002 permits access to data obtained from studies and experiments in circumstances other than those expressly provided in the Directive.

The Commission considers that since the Kingdom of Spain has no discretion in relation to the transposition into national law of Article 13 of Directive 91/414/EEC and since it has not brought an action for the annulment of that provision, the introduction of an exception to the rules relating to access to data accompanying an application for authorisation of plant protection products, when that exception is not provided for in the Directive concerned, is an infringement of Community law.

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, p. 1)
1.

Is it compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport, where fixed stopping points are called at regularly in accordance with a timetable, to lay down the following as conditions for such authorisation: (a) that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority before commencing operation of the service and in particular at the time the licence is granted; (b) that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority at the latest from the time operation of the service commences?
2.

Does it affect the answer to question 1 that: (a) In some cases the contractual rights are acquired in return for the customer depositing with MRL pre-existing rights of occupation held by the customer in timeshare accommodation at a particular place for one or more fixed weeks? (b) the customer may in any year decide not to redeem his or her Points entitlement for that year in whole or in part for any rights of occupation and may instead elect to augment his or her entitlement in the following year, or, subject to the contractual conditions of the scheme in any year, may augment that year's entitlement by ‘borrowing’ from his or her entitlement to Points in the following year; (c) the properties comprising the pool of accommodation may change between the time when Points Rights are acquired and the time when Points are redeemed for the right to occupy a property; (d) the number of Points to which the customer is entitled each year may be varied by the supplier in accordance with the contractual conditions of the scheme; (e) The Appellant may from time to time arrange for persons holding Points Rights to have access to an external timeshare programme; (f) The Appellant may from time to time make arrangements for persons holding Points Rights to exchange their Points for accommodation in hotels operated by the Appellant or for other benefits provided by the Appellant?
EN Official Journal of the European Union C 297/18

Reference for a preliminary ruling from the Amtsgericht Bonn (Germany) lodged on 9 September 2009 — Pfleiderer AG v Bundeskartellamt

(Case C-360/09)

2009/C 297/23

Language of the case: German

Referring court

Amtsgericht Bonn

Parties to the main proceedings

Applicant: Pfleiderer AG

Defendant: Bundeskartellamt

Question referred

Are the provisions of Community competition law — in particular Articles 11 and 12 of Regulation No 1/2003 (1) and the second paragraph of Article 10 EC, in conjunction with Article 3(1)(g) EC — to be interpreted as meaning that parties adversely affected by a cartel may not, for the purpose of bringing civil-law claims, be given access to leniency applications or to information and documents voluntarily provided in that connection by applicants for leniency which the national competition authority of a Member State has received, pursuant to a national leniency programme, within the framework of proceedings for the imposition of fines which are (also) intended to enforce Article 81 EC?

(1) OJ 2003 L 1, p. 1.
1.

Is Article 3(1)(c) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, (1) as amended by Directive 2002/73/EC, to be interpreted — in the context of a system of employment law in which the general protection of employees against dismissal is determined by their social (financial) dependence on the job — as precluding a provision of a collective agreement offering special protection against dismissal, over and above the statutory general protection against dismissal, only until that point in time at which, in a typical case, there is a social (financial) safety net in the form of an old-age pension if men and women become entitled to that old-age pension at different times?
4.

Is it only the risk that the consumer/end user might be misled into assuming that the trade mark proprietor is responsible for the repackaging which is of significance in answering Question 1, or are other considerations regarding the trade mark proprietor also relevant, for example (a) that the entity which undertakes the importation and physical repackaging and (re)affixes the trade mark proprietor’s trade mark on the product’s outer packaging potentially on its own account infringes the trade mark proprietor’s trade mark by so doing, and (b) that it may be due to factors for which the entity that physically carried out the repackaging is responsible that the repackaging affects the original condition of the product or that the presentation of the repackaging is of such a kind that it must be assumed to harm the trade mark proprietor’s reputation (see, inter alia, Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova)?
EN Official Journal of the European Union C 11/18

Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 5 November 2009 — Shirley McCarthy v Secretary of State for the Home Department

(Case C-434/09)

2010/C 11/30

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: Shirley McCarthy

Defendant: Secretary of State for the Home Department

Questions referred

1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a ‘beneficiary’ within the meaning of Article 3 of Directive 2004/38/EC (1) of the European Parliament and of the Council (‘the Directive’)?

2. Has such a person ‘resided legally’ within the host Member State for the purpose of Article 16 of the Directive in circumstances where she was unable to satisfy the requirements of Article 7 of Directive 2004/38/EC?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

OJ L 158, p. 77
—

declare that, by not implementing in full Commission Directive 2005/28/EC of 8 April 2005 laying down principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use, as well as the requirements for authorisation of the manufacturing or importation of such products, (1) or in any event by not informing the Commission of the provisions adopted to that end, the Republic of Poland has failed to fulfil its obligations under Article 31 of that directive;
1.

Is Article 239 CCC to be interpreted as meaning that, in a case such as that at issue here, where the Member State takes the view that the European Commission cannot be criticised for having committed any irregularity and none of the other circumstances contemplated in Article 905(1) (of Regulation No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code)(‘ICCC’) obtain, that same Member State may decide independently on an application for repayment to the debtor within the meaning of Article 899(2) ICCC?
EN Official Journal of the European Union C 24/28

Reference for a preliminary ruling from the Juzgado Contencioso Administrativo no 3 de La Coruna (Spain) lodged on 16 November 2009 — Rosa María Gaviero Gaviero v Consellería de Educación e Ordenación Universitaria

(Case C-444/09)

2010/C 24/52

Language of the case: Spanish

Referring court

Juzgado Contencioso Administrativo No 3 of La Coruna

Parties to the main proceedings

Applicant: Rosa María Gaviero Gaviero

Defendant: Consellería de Educación e Ordenación Universitaria (Galicia)

Question referred

What is the meaning of the phrase ‘different length-of service qualifications’ in Clause 4(4) of the Framework agreement in the Annex to Directive 1999/70/EC (1), and is the mere fact of the temporary nature of the employment relationship of those serving as public employees an ‘objective ground’ which may justify a difference in treatment as regards receipt of the length of service increment?

(1) Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ L 175, 10.7.1999)
—

Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2007/63/EC (1) of the European Parliament and of the Council of 13 November 2007 amending Council Directives 78/855/EEC and 82/891/EEC as regards the requirement of an independent expert’s report on the occasion of merger or division of public limited liability companies 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 37/22

Action brought on 2 December 2009 — European Commission v Hellenic Republic

(Case C-500/09)

2010/C 37/27

Language of the case: Greek

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and D. Triantafillou, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

— declare that, by continuing to apply Ministerial Decision A1/44351/3608 of 12 October 2005, the Hellenic Republic is in breach of its obligations under Directive 97/67/EC (1) (as amended), as they result in particular from Article 9(1) and (2);

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Hellenic Republic is hindering the liberalisation of postal services, the objective of Directive 97/67, which provides in that connection for the grant of general authorisations and individual licences in an open manner and without discrimination.

The Greek legislation requires of authorised carriers, when licences are issued for postal transport vehicles, that they should themselves be postal undertakings entered in the appropriate register as holders of a general authorisation. That necessitates radical restructuring of postal networks and makes it impossible for the principal undertakings to employ franchisees, unless they opt to convert themselves into undertakings leasing vehicles with the costs that that implies.

Moreover, the Greek legislation allows the transport of heavy loads only by certain commercial vehicles, reserved to a regulated profession, which prevents other undertakings from providing the same service.

The Hellenic Republic has not submitted sufficient justification for those restrictions.

(1) OJ L 15 of 21.1.1998, p. 14.
1.

The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude an order to recover the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) which relates to the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision. The Court of First Instance erred in law by failing to comply with the procedural rules relating to the assessment of evidence by disregarding the substantive content of documents submitted for the purposes of the written procedure. Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates. By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons. The CFI erred in law by holding that the Commission's attitude with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the case file, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.
EN Official Journal of the European Union C 63/32

Action brought on 23 December 2009 — European Commission v Republic of Austria

(Case C-551/09)

2010/C 63/52

Language of the case: German

Parties

Applicant: European Commission (represented by: K. Gross and M. Adam, Agents)

Defendant: Republic of Austria

Form of order sought

1. declare that, by failing to take all necessary measures to recover the aid in issue in Commission Decision 2008/719/EC of 30 April 2008 on State aid C 56/06 (ex NN 77/2006) implemented by Austria for the privatisation of Bank Burgenland, the Republic of Austria has failed to fulfil its obligations under Article 288 TFEU and under Articles 1 to 3 of that Commission Decision;

2. declare that, by failing to provide the Commission in good time with the information necessary for calculating the amount of the aid, the Republic of Austria has failed to fulfil its obligations under Article 288 TFEU and under Article 4 of Commission Decision 2008/719/EC of 30 April 2008 on State aid C 56/06 (ex NN 77/2006) implemented by Austria for the privatisation of Bank Burgenland;

3. order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The Commission takes the view that the period given to the Republic of Austria in Commission Decision 2008/719/EC of 30 April 2008 on State aid C 56/06 (ex NN 77/2006) implemented by Austria for the privatisation of Bank Burgenland to provide the information required for the purpose of calculating the amount of the aid has expired.

An agreement reached by the Commission and the Republic of Austria after the expiry of the abovementioned period concerning the level of the amount to be recovered was, according to the Commission, revoked by the Republic of Austria on the ground that the company affected by the recovery claim intended, in the event of being obliged to pay, to cancel the purchase of Bank Burgenland. This, according to the Republic of Austria, would have had serious consequences for the economy of the Land of Burgenland. In the view of the Commission, however, this does not provide justification for waiving the demand for repayment.

The judicial challenge to the abovementioned decision likewise does not affect the obligation to give effect to it.
1.

Must Article 27(4)(a) of Regulation (EC) No 882/2004 (1) of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules be interpreted as not prohibiting the demanding of a fee from an operator at the minimum rate laid down in Part B of Annex IV to that regulation for the activities listed in Part A of Annex IV to the regulation, even if the costs borne by the responsible competent authorities in connection with the items listed in Annex VI to that regulation are lower than the above-mentioned minimum rates?
EN Official Journal of the European Union C 63/20

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 30 November 2009 — INMOGOLF SA v Administración General del Estado

(Case C-487/09)

2010/C 63/32

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: INMOGOLF SA

Defendant: Administración General del Estado

Questions referred

Having regard to the fact that Article 11(a) of Council Directive 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on the raising of capital (now Directive 2008/71/EC …) (2) prohibited the taxation of making available on the market or dealing in stocks, shares or other securities of the same type, and Article 12(1)(a) thereof only authorised Member States to charge duties on the transfer of securities, whether charged at a flat rate or not, and in the light of the fact that Article 108 of Law 24/1988 … on stock markets (in the wording of the 12th additional provision of Law 18/1991 …) nevertheless establishes a general exemption, from value added tax and from tax on capital transfers, for the transfer of securities, but subjects these transactions to tax on capital transfers, as transfers of assets for consideration, provided that they represent part of the capital of companies in which at least 50 % of the assets comprise immovable property and where the purchaser, as a result of that transfer, obtains a position which enables him to exercise control over the entity, without distinguishing between holding companies and companies which carry on an economic activity:

1. Does Council Directive 69/335/EEC of 17 July 1969 preclude the automatic application of legislation of Member States, such as Article 108(2) of Law 24/1988 on stock markets, which taxes certain transfers of securities which conceal transfers of immovable assets, even if there has been no intention to avoid taxation? If it is not necessary for there to be an intention to avoid taxation,

2. Does Council Directive 69/335/EEC of 17 July 1969 preclude legislation such as … Law 24/1988, which establishes a charge on the acquisition of major shareholdings in companies whose assets comprise mainly immovable property, even though those companies are fully operative and the immovable assets cannot be disassociated from their economic activities?

(1) OJ English Special Edition 1969 (II), p. 412.

(2) OJ 2008 L 46, p. 11.
EN Official Journal of the European Union C 234/20

Appeal brought on 11 December 2009 by Hubert Ségaud against the Order of the Court of First Instance (Sixth Chamber) of 29 October 2009 in Case T-249/09 Ségaud v European Commission

(Case C-514/09 P)

()

2010/C 234/30

Language of the case: French

Parties

Appellant: Hubert Ségaud (represented by: J.-P Ekeu, avocat)

Other party to the proceedings: European Commission

By order of 21May 2010, the Court of Justice (Eight Chamber) dismissed the appeal and ordered Mr Ségaud to bear his own costs.
EN Official Journal of the European Union C 80/12

Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany) lodged on 31 December 2009 — Andreas Michael Seeger v Generalstaatsanwaltschaft Stuttgart

(Case C-554/09)

2010/C 80/20

Language of the case: German

Referring court

Oberlandesgericht Stuttgart

Parties to the main proceedings

Appellant: Andreas Michael Seeger

Respondent: Generalstaatsanwaltschaft Stuttgart

Question referred

Can the term ‘materials’ in the second indent of Article 13(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 (1) be interpreted as also capable of including packaging materials, such as empty drinks bottles (empties), carried by a wine and drinks merchant who runs a shop, makes deliveries to his customers once a week and, while doing so, collects the empties to take them to his wholesaler?

(1) OJ 2006 L 102, p. 1.