Case C-467/08: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 31 October 2008 — Sociedad General de Autores y Editores de España (SGAE) v Padawan, S.L. and Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA), intervener
Date: 2008-10-31
Institutions: Court of Justice
Subjects: Spain, copyright, harmonisation of standards, intellectual property, interpretation of the law, telecommunications equipment

C 19/12

EN

Official Journal of the European Union

24.1.2009

Questions referred

1. Does Community law preclude a national authority — in
order to avoid discriminating against foreign equity hold-
ings which, unlike domestic (Austrian) equity holdings, are
not tax exempt under legislation until the size of the equity
holding reaches 25 % (under present legislation 10 %) —
from applying the credit method because the Austrian
Verwaltungsgerichtshof
(Administrative Court) has ruled
that this outcome is closest to the (hypothetical) intention
of
the legislature but not simultaneously permitting a
deduction to be carried forward to subsequent years or a
tax credit to be given for a loss year with regard, firstly, to
the corporation tax to be credited and, secondly, to the
withholding tax to be credited?

1.1 If the answer to the first question should be in the affirma-
tive: Does Community law preclude a refusal to allow a
deduction to be carried forward or a tax credit to be given
in the case of non-member country dividends?

Reference for a preliminary ruling from the Oberver-
waltungsgericht Berlin-Brandenburg (Germany) lodged on
27 October 2008 — Ümit Bekleyen v Land Berlin

(Case C-462/08)

(2009/C 19/20)

Language of the case: German

Referring court

Oberverwaltungsgericht Berlin-Brandenburg

Parties to the main proceedings

Applicant: Ümit Bekleyen

Defendant: Land Berlin

Question referred

Is the second paragraph of Article 7 of Decision No 1/80 of the
EEC-Turkey Association Council on the development of
the
Association to be interpreted as meaning that the right of access
to the labour market and the corresponding right of residence
following the completion of a vocational training course in the
host Member State can also be invoked in a situation in which
the child who was born in the host Member State, but after-
wards returned with her family to the family's country of origin,
returns on her own to the relevant Member State after she has
reached the age of majority in order to start a vocational
training course, at a moment occurring 10 years after her
parents, Turkish nationals who used to be employed in that
Member State, had permanently left that Member State?

Reference for a preliminary ruling from the Audiencia
Provincial de Barcelona (Spain) lodged on 31 October 2008
— Sociedad General de Autores y Editores de España
(SGAE) v Padawan, S.L. and Entidad de Gestión de
(EGEDA),
Derechos de los Productores Audiovisuales

intervener

(Case C-467/08)

(2009/C 19/21)

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Sociedad General de Autores y Editores de España
(SGAE)

Defendant: Padawan, S.L.

Other party: Entidad de Gestión de Derechos de los Productores
Audiovisuales (EGEDA)

Questions referred

1. Does the concept of ‘fair compensation’ in Article 5(2)(b) of
Directive 2001/29 (1) entail harmonisation,
irrespective of
the Member States' right to choose the system of collection
which they deem appropriate for the purposes of giving
effect to the right to fair compensation of intellectual prop-
erty rightholders affected by the adoption of
the private
copying exception or limitation?

2. Regardless of

the system used by each Member State to
calculate fair compensation, must that system ensure a fair
balance between the persons affected, the intellectual prop-
erty rightholders affected by the private copying exception,
to whom the compensation is owed, on the one hand, and
the persons directly or indirectly liable to pay the compensa-
tion, on the other, and is that balance determined by the
reason for the fair compensation, which is to mitigate the
harm arising from the private copying exception.?

3. Where a Member State opts for a system of charging or
levying in respect of digital reproduction equipment, devices
and media,
in accordance with the aim pursued by
Article 5(2)(b) of Directive 2001/29 and the context of that
provision, must
that charge (the fair compensation for
private copying) necessarily be linked to the presumed use of
those equipment and media for making reproductions
covered by the private copying exception, with the result that
the application of the charge would be justified where it may
be presumed that the digital reproduction equipment, devices
and media are to be used for private copying, but not other-
wise?

24.1.2009

EN

Official Journal of the European Union

C 19/13

4. If a Member State adopts a private copying ‘levy’ system, is
the indiscriminate application of that ‘levy’ to undertakings
and professional persons who clearly purchase digital repro-
duction devices and media for purposes other than private
copying compatible with the concept of ‘fair compensation’?

5. Might the system adopted by the Spanish State of applying
the private copying levy indiscriminately to all digital repro-
duction equipment, devices and media infringe Directive
2001/29, in so far as there is insufficient correlation between
the fair compensation and the limitation of
the private
copying right justifying it, because to a large extent it is
applied to different situations in which the limitation of
rights justifying the compensation does not exist?

(1) Corrigendum to Directive 2001/29/EC of the European Parliament
and of the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society
(OJ L 167 of 22.6.2001).

Reference for a preliminary ruling from the Helsingin
lodged on 4 November 2008 —
käräjäoikeus (Finland)

Sanna Maria Parviainen v Finnair Oyj

(Case C-471/08)

(2009/C 19/22)

Language of the case: Finnish

Referring court

Helsingin käräjäoikeus

Parties to the main proceedings

Applicant: Sanna Maria Parviainen

Defendant: Finnair Oyj

Question referred

what kind of allowances and on what basis the worker was paid
in addition to her basic monthly pay?

(1) Council Directive 92/85/EEC of 19 October 1992 on the introduc-
tion of measures to encourage improvements in the safety and health
at work of pregnant workers and workers who have recently given
birth or are breastfeeding (tenth individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC) OJ L 348, 1992,
p. 1.

Appeal brought on 6 November 2008 by Evropaïki
Tilepikoinonion
Dynamiki — Proigmena
Pliroforikis kai Tilematikis AE against the judgment of the
Court of First
Instance (Third Chamber) delivered on
10 September 2008 in Case T-59/05 Evropaïki Dynamiki —
Proigmena Systimata Tilepikoinonion Pliroforikis kai
European
Tilematikis AE

Systimata

the

of

v Commission
Communities

(Case C-476/08 P)

(2009/C 19/23)

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (represented by: N.
Korogiannakis, P. Katsimani, Δικηγόροι)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

The appellant claim that the Court should:

— Set aside the decision of the Court of First Instance;

— annul the decision of the Commission (DG Agriculture) to
evaluate the applicant's bid as not successful and award the
contract to the successful contractor;

— order the Commission to pay the applicant's legal and other
costs and expenses incurred in connection with the initial
procedure, even if the current Appeal is rejected as well as
those of the current Appeal, in case it is accepted

Is Article 11(1) of the Protection of Pregnant Workers Direc-
tive (1) to be interpreted as meaning that a worker who is trans-
ferred to other lower-paid work because of her pregnancy must,
on the basis of that provision, be paid as much as she received
on average before the transfer, and is it relevant in that respect

Pleas in law and main arguments

The appellant bases its appeal against the judgment T-59/05 of
the Court of First Instance on the following grounds: