ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 258/11

Reference for a preliminary ruling from High Court of Ireland made on 11 June 2012 — Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General

(Case C-293/12)

2012/C 258/18

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: Digital Rights Ireland Ltd

Defendants: Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General

Questions referred

1. Is the restriction on the rights of the Plaintiff in respect of its use of mobile telephony arising from the requirements of Articles 3, 4, and 6 of Directive 2006/24/EC (1) incompatible with Article 5.4 TEU in that it is disproportionate and unnecessary or inappropriate to achieve the legitimate aims of: (a) Ensuring that certain data are available for the purposes of investigation, detection and prosecution of serious crime? and/or (b) Ensuring the proper functioning of the internal market of the European Union?

2. Specifically, (i) Is Directive 2006/24/EC compatible with the right of citizens to move and reside freely within the territory of Member States laid down in Article 21 TFEU? (ii) Is Directive 2006/24/EC compatible with the right to privacy laid down in Article 7 of the Charter and Article 8 ECHR? (iii) Is Directive 2006/24/EC compatible with the right to the protection of personal data laid down in Article 8 of the Charter? (iv) Is Directive 2006/24/EC compatible with the right to freedom of expression laid down in Article 11 of the Charter and Article 10 ECHR? (v) Is Directive 2006/24/EC compatible with the right to Good Administration laid down in Article 41 of the Charter?

3. To what extent do the Treaties — and specifically the principle of loyal cooperation laid down in Article 4.3 of the Treaty on European Union -require a national court to inquire into, and assess, the compatibility of the national implementing measures for Directive 2006/24/EC with the protections afforded by the Charter of Fundamental Rights, including Article 7 thereof (as informed by Article 8 of the ECHR)?

(1) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC

OJ L 105, p. 54
EN Official Journal of the European Union C 235/10

Appeal brought on 6 June 2012 by the Council of the European Union against the judgment of the General Court (Fourth Chamber) delivered on 21 March 2012 in Joined Cases T-439/10 and T-440/10 Fulmen and Mahmoudian v Council

(Case C-280/12 P)

2012/C 235/19

Language of the case: French

Parties

Appellant: Council of the European Union (represented by: M. Bishop and R. Liudvinaviciute, acting as Agents)

Other parties to the proceedings: Fulmen, Fereydoun Mahmoudian, European Commission

Form of order sought

— Set aside the judgment of the General Court (Fourth Chamber) delivered on 21 March 2012 in Joined Cases T-439/10 and T-440/10;

— Give a final ruling on the dispute and dismiss the actions brought by Fulmen and Mr Mahmoudian against the measures of the Council at issue;

— Order Fulmen and Mr Mahmoudian to pay the costs incurred by the Council at first instance and in connection with the present appeal.

Pleas in law and main arguments

The Council submits that the judgment of the General Court in the abovementioned cases is marred by errors of law and that that judgment should therefore be set aside by the Court.

The Council maintains that the General Court erred in law in holding that it had to adduce evidence to substantiate its statement of the reasons for the imposition of restrictive measures against the company Fulmen, namely that that company was involved in the installation of electrical equipment on the Qom/Fordoo (Iran) nuclear site.

In that regard, the Council submits, first, that the General Court erred in law in holding that it had to require the Member State which proposed designating Fulmen to present evidence and information although that evidence comes from confidential sources. Secondly, the Council submits that the General Court erred in law in holding that that Court could take account of confidential evidence which is not communicated to the lawyers of the parties concerned, although Article 67(3) of the Rules of Procedure of the General Court does not provide for that possibility.
EN Official Journal of the European Union C 295/18

Reference for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 29 June 2012 — J. Sebastian Guevara Kamm v TAM Airlines S.A./TAM Linhas Aéreas S.A.

(Case C-316/12)

2012/C 295/30

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicant: J. Sebastian Guevara Kamm

Defendant: TAM Airlines S.A./TAM Linhas Aéreas S.A.

Question referred

Is Article 2(j) of Regulation (EC) No 261/2004 (1) to be interpreted, with regard to the ‘reasonable grounds’ mentioned therein, to the effect that ‘reasonable grounds’ can only be grounds pertaining to the person of the passenger which jeopardise the safety of air transport or of other passengers or which affect other public or contractual interests, or can ‘reasonable grounds’ also be other grounds not pertaining to the person of the passenger, in particular cases of force majeure?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
EN Official Journal of the European Union C 287/18

Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 21 June 2012 — Guido Imfeld, Nathalie Garcet v État belge

(Case C-303/12)

2012/C 287/33

Language of the case: French

Referring court

Tribunal de première instance de Liège (Belgium)

Parties to the main proceedings

Applicants: Guido Imfeld, Nathalie Garcet

Defendant: État belge

Question referred

Is it contrary to Article 39 [EC] that, as a result of the provision made under the Belgian tax system, specifically under Article 155 of the 1992 Income Tax Code and the second subparagraph of Article 134(1) of that Code, and regardless of whether Circular No Ci.RH.331/575.420 of 12 March 2008 is applied, the income earned in Germany by the first applicant — which is exempt from tax [in Belgium] pursuant to Article 17 of the Convention concluded between Germany and Belgium for the avoidance of double taxation — is taken into account for the purposes of calculating the tax payable in Belgium and is used as the basis of assessment for the grant of tax advantages provided for under the 1992 Income Tax Code, and those advantages, such as the tax-free allowance because of the first applicant’s family circumstances, are reduced or granted to a lesser extent than if the income of both applicants were earned in Belgium and if the higher income were that earned by the second applicant, rather than by the first applicant, whereas, in Germany, the income of the first applicant is taxed as though he were a single person and he is accordingly not entitled to all the tax advantages linked to his personal and family circumstances, of which the German tax authorities take account only in part?
EN Official Journal of the European Union C 287/27

Appeal brought on 16 July 2012 by Council of the European Union against the judgment of the General Court (Fourth Chamber) delivered on 25 April 2012 in Case T-509/10 Manufacturing Support & Procurement Kala Naft v Council

(Case C-348/12 P)

2012/C 287/53

Language of the case: French

Parties

Appellant: Council of the European Union (represented by: M. Bishop and R. Liudvinaviciute-Cordeiro, acting as Agents)

Other parties to the proceedings: Manufacturing Support & Procurement Kala Naft Co., Tehran; European Commission

Form of order sought

— Set aside the judgment delivered on 25 April 2012 by the General Court (Fourth Chamber) in Case T-509/10;

— Give a final ruling in the dispute and dismiss as inadmissible the action brought by Kala Naft against the acts of the Council at issue or, in the alternative, dismiss the action as unfounded;

— Order Kala Naft to pay the costs incurred by the Court at first instance and on appeal.

Pleas in law and main arguments

The Council submits that the judgment of the General Court in the abovementioned case is vitiated by two errors and that, in consequence, the judgment should be set aside.

Firstly, the Council is of the opinion that the General Court erred in law by failing to dismiss the action brought by Kala Naft as inadmissible, given that, in the Council’s submission, that undertaking is an entity of the Iranian Government.

Secondly, the Council argues that the General Court erred in law in holding that one of the grounds justifying the imposition of restrictive measures against Kala Naft was not sufficient to satisfy the duty to state reasons and that the Council was required to adduce evidence to support another of those grounds. The Council also submits that the General Court erred in law by holding that the fact that Kala Naft markets equipment for the oil and gas sectors which is liable to be used in the Iranian nuclear programme cannot be regarded as ‘supporting’ nuclear proliferation, without placing that fact in context with the other justifying grounds.
2.

If fault on the part of the lawyer representing the defendant is not to be regarded as fault on the part of the defendant itself, is the failure of the former to take note of the correct date of expiry of the time limit for opposing a European order for payment to be regarded as an extraordinary circumstance within the meaning of Article 20(2) of Regulation 1896/2006?
EN Official Journal of the European Union C 287/26

Appeal brought on 19 July 2012 by DMK Deutsches Milchkontor GmbH (formerly Nordmilch AG) against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-546/10 Nordmilch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-346/12 P)

2012/C 287/51

Language of the case: German

Parties

Appellant: DMK Deutsches Milchkontor GmbH (formerly Nordmilch AG) (represented by: W. Berlit, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Lactimilk, SA

Form of order sought

— Set aside points 1 and 2 of the operative part of the judgment of the General Court of 22 May 2012 (Case T-546/10);

— grant in full the applications made at first instance;

— order Lactimilk, SA to pay the costs incurred by the appellant in the entire proceedings.

Pleas in law and main arguments

The appellant submits that the contested decision of the General Court should be set aside because the General Court wrongly found a similarity between the trade mark applied for by the appellant and the trade marks of Lactimilk SA, and thus, in concluding that there is a likelihood of confusion, incorrectly applied Article 8(1)(b) of Regulation No 40/94. The General Court erred in failing to compare the marks actually at issue as written in the manner in which they were applied for or registered (that is in capital letters), instead examining the likelihood of confusion on the basis of both marks written differently. In so doing the General Court distorted the facts. Moreover, the General Court wrongly assumed that the stress in the trade mark applied for falls on the second syllable, notwithstanding the fact that the trade mark applied for is written in capital letters so that, on the basis of the way in which it would be understood in Spanish also, there can be no question of the stress in the trade mark applied for falling only on the second syllable.
EN Official Journal of the European Union C 311/7

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 6 August 2012 — Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni, Commissione di Garanzia per l’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali

(Case C-376/12)

2012/C 311/08

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Sky Italia Srl

Defendant: Autorità per le Garanzie nelle Comunicazioni, Commissione di Garanzia per l’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali

Question referred

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

(1) Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21).
3.

If Question 2 is also answered in the negative: Do Article 49 TFEU and/or Article 47 of the Charter of Fundamental Rights of the European Union preclude a provision such as point 3 of Paragraph 10(2) of the ApG which has been interpreted, as result of the case-law of the highest national courts on the notion of assessment of a need, to include additional detailed criteria — such as whether an application has priority in time, the blocking effect of an existing application in relation to subsequent applications, the two-year lockout period following the rejection of an application, criteria for determining the number of ‘permanent residents’ and ‘incoming users’ and for allocating the customer base in the event of an overlap between the 4-km zone surrounding each of two or more pharmacies, etc. — since, as a result, it is not possible to ensure that, as a general rule, the provision will be applied in a manner that is foreseeable and calculable and within a reasonable period and, hence, the legislative provision cannot be considered appropriate, in fact, to ensure the achievement in a consistent manner of the legislative objective pursued (see paragraphs 98 to 101 and 114 to 125 of the Court’s judgment in Blanco Pérez) and/or the provision of an adequate pharmaceutical service must be regarded as de facto not ensured and/or discrimination must be presumed as between interested parties from Austria amongst themselves or between them and interested parties from other Member States?
EN Official Journal of the European Union C 343/6

Reference for a preliminary ruling from the Landgericht Rostock (Germany) lodged on 13 August 2012 — Criminal proceedings against Per Harald Lökkevik

(Case C-384/12)

2012/C 343/05

Language of the case: German

Referring court

Landgericht Rostock

Parties to the main proceedings

Per Harald Lökkevik

Other party: Staatsanwaltschaft Rostock

Question referred

Should the concept of an advantage within the meaning of Article 4(3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 (1) be interpreted as meaning that it includes a situation in which it appears that simply a lack of competence of the European Commission has been brought about by statements made in a subsidy procedure for the purposes of avoiding the prescribed notification of regional investment aid projects with total project costs of at least EUR 50 million laid down in Section 2(1)(i) of the Multisectoral framework on regional aid for large investment projects of 7 April 1998 (OJ 1998 C 107, p. 7)?

(1) OJ 1995 L 312, p. 1.
—

Declare that: — by excluding from the scope of the Law of 5 June 2007 transposing Directive 2005/29/EC on unfair commercial practices (1) members of a profession and dentists and physiotherapists, the Kingdom of Belgium has failed to fulfil its obligations under Article 3, combined with Article 2(b) and (d) of that directive; — by maintaining in force Articles 20, 21 and 29 of the Law of 6 April 2010 on market practices and consumer protection, the Kingdom of Belgium has failed to fulfil its obligations under Article 4 of Directive 2005/29/EC on unfair commercial practices; — by maintaining in force the third subparagraph of Article 4(1) of the Law of 25 June 1993 on the exercise and organisation of travelling trading and fairground activities as inserted by Article 7 of the Law of 4 July 2005 modifying the Law of 25 June 1993 on the exercise of travelling trading activities and the organisation of public markets, and point 4 of Article 5(1) of the Royal Decree of 24 September 2006 concerning the exercise and organisation of travelling trading activities, the Kingdom of Belgium has failed to fulfil its obligations under Article 4 of Directive 2005/29/EC on unfair commercial practices.
—

Declare that, by failing to adopt all the laws and other measures necessary to transpose Directive 2009/136/EC (1) of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC (2) on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC (3) concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws or, in any case, by failing to notify the Commission of such provisions, the Republic of Slovenia has failed to fulfil its obligations under Article 4 of that directive;
EN Official Journal of the European Union C 379/16

Appeal brought on 28 September 2012 by Veolia Acqua Compagnia Generale delle Acque srl, in liquidation, against the order of the General Court (Fourth Chamber) delivered on 12 July 2012 in Case T-264/00 Veolia Acqua Compagnia Generale delle Acque srl, in liquidation v Commission

(Case C-436/12 P)

2012/C 379/27

Language of the case: Italian

Parties

Appellant: Veolia Acqua Compagnia Generale delle Acque srl, in liquidation (represented by: A. Vianello, A. Bortoluzzi and A. Vegliantini, avvocati)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the order of 12 July 2012 in Case T-264/00 Compagnia Generale delle Acque SpA and Italian Republic v European Commission, by which the General Court dismissed the action brought by VEOLIA for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia under Laws No 30/1997 and 206/1995;

— Order the Commission to pay the costs.

Pleas in law and main arguments

Error of law in the application of the principles outlined by the Court of Justice in the judgment in Comitato Venezia vuole vivere [Joined Cases C-71/09 P, C-73/09 P and C-76/09 P], with regard to the allocation of the burden of proof as to the conditions set out in Article 87(1) EC; insufficient, incorrect and, in any event, contradictory reasoning.
EN Official Journal of the European Union C 355/12

Action brought on 19 September 2012 — European Commission v European Parliament, Council of the European Union

(Case C-427/12)

2012/C 355/20

Language of the case: French

Parties

Applicant: European Commission (represented by: B. Smulders, C. Zadra and E. Manhaeve, acting as Agents)

Defendants: European Parliament, Council of the European Union

Form of order sought

— Annul Article 80(1) of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (1) insofar as it provides for the adoption of measures establishing the fees payable to the European Chemicals Agency (ECHA) by an implementing act under Article 291 TFEU and not by a delegated act in accordance with Article 290 TFEU;

— Maintain the effects of the provision annulled and of all acts adopted on the basis thereof until the entry into force, within a reasonable period, of a new provision intended to replace it;

— Order the defendants to pay the costs.

In the alternative, in the event that the Court were to consider that this application for partial annulment is not admissible,

— Annul that regulation in its entirety;

— Maintain the effects of the abovementioned regulation and of all acts adopted on the basis thereof until the entry into force, within a reasonable period, of a new regulation intended to replace it;

— Order the defendants to pay the costs.

Pleas in law and main arguments

The Commission raises a single plea in law in support of its action, alleging infringement of the Treaty and, in particular, of the system of attribution of the regulatory powers which the European Union legislature may attribute to the Commission pursuant to Article 290 and 291 TFEU.

The Commission submits that the Council and the Parliament erred in deciding to confer on the Commission implementing powers on the basis of Article 291 TFEU in order to establish the fees payable to the European Chemicals Agency. In the Commission’s opinion, the act which it is called upon to adopt on the basis of Article 80(1) of Regulation (EU) No 528/2012 is in fact a delegated act within the meaning of Article 290 TFEU, in as much as it seeks to supplement certain non-essential elements of the legislative act. Having regard to the nature of the attribution of powers made to the Commission but also to the purpose of the act to be adopted under those powers, such an act ought therefore to be adopted in accordance with the procedure laid down in Article 290 TFEU and not the procedures laid down in Article 291 TFEU.

(1) OJ 2012 L 167, p. 1.
1.

Should Directive 2004/38/EC (1) 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, as regards the conditions governing the right of residence of members of the family of a Union citizen who have third-country nationality, be applied by analogy, as in the judgments of the Court of Justice of the European Communities in Case C-370/90 Surinder Singh (2) and in Case C-291/05 Eind, (3) where a Union citizen returns to the Member State of which he is a national after having resided in another Member State in the context of Article 21(1) of the Treaty on the Functioning of the European Union, and as the recipient of services within the meaning of Article 56 of that Treaty?
3.

If the answer to Question 2 is to the effect that Article 1(2) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), is valid, must Article 4(3) of the Regulation, in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 7(f) of the Privacy Directive, (1) read in conjunction with Article 6(1)(b) of the Privacy Directive, be interpreted to mean that, when the Member States give effect to Regulation No 2252/2004, there should be a statutory guarantee that the biometric data collected and stored pursuant to that Regulation may not be collected, processed and used for any purposes other than the issuing of the document?