26.3.2011   

EN

Official Journal of the European Union

C 95/1

26.3.2011   

EN

Official Journal of the European Union

C 95/2

1.

Are Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) — with particular regard to Article 2(1) and Article 3(1) of the Charter of Fundamental Rights of the European Union — to be interpreted as meaning that a Member State (the ‘host Member State’) is entitled not to recognise a Category B driving licence which another Member State (‘the issuing Member State’) has issued to a person on whom the host Member State has imposed prior measures within the meaning of Article 8(2) of Directive 91/439/EEC and which driving licence is on the face of the document itself in breach of the residence requirement of Article 7(1)(b) of Directive 91/439/EEC, if that person has subsequently obtained in the issuing Member State a Category C driving licence which is not on the face of that driving licence in breach of the residence requirement?

2.

If the answer to that question is in the affirmative, can the host Member State refuse to recognise the Category C driving licence issued to that person?

26.3.2011   

EN

Official Journal of the European Union

C 95/2

1.

Is it contrary to Community law, in particular the law on consumers and users, for a national court to avoid giving a ruling of its own motion and in limine litis or at any stage during the proceedings on whether or not a term concerning interest on late payments (in this case 29 %) in a consumer credit agreement is void and on whether or not that term should be modified. May the court, without prejudicing the rights of the consumer under Community law, decide to leave any evaluation of such a term to the initiative of the debtor (by means of the appropriate procedural objection)?

2.

In the light of Article 6(1) of Directive 93/13/EEC (1) and Article 2 of Directive 2009/22/EEC, (2) what is the correct interpretation of Article 83 of Real Decreto Legislativo No 1/2007 (Royal Legislative Decree No 1/2007) (formerly Article 8 of Ley General No 26/1984, de 19 julio, para la Defensa de los Consumidores y Usarios) (General Law No 26/1984 of 19 July 1984 for the protection of consumers and users) for those purposes? What is the scope in that regard of Article 6(1) of Directive 93/13/EEC where it provides that unfair contract terms ‘shall not be binding on the consumer’?

3.

Is it possible to exclude judicial review of a court’s own motion and in limine litis where the applicant clearly states in his application the rate of interest on late payments, the amount of the claim, including the principal and interest, the contractual penalties and the costs, the interest rate and the period of time for which that interest is demanded (or a statement that statutory interest is automatically added to the principle under the law of the Member State of origin), the cause of the action, including a description of the facts relied on as the basis of the claim and the interest demanded, and it is clearly stated whether it concerns statutory or contractual interest, capitalisation of interest or the interest rate for the loan, whether it has been calculated by the applicant and the number of percentage points above the Central Bank base rate, as is the case with the Community regulation on the European order for payment procedure? (3)

4.

In the absence of their transposition, do Articles 5(1)(l) and (m) and 6(1)(i) of Directive 2008/48/EC, (4) where they refer to ‘arrangements for its adjustment’, and Article 10(2)(1), where it refers to ‘arrangements for its adjustment’, require the financial institution specifically to include and to highlight in the contract (not in the body of the text, in an undifferentiated manner) as ‘pre-contractual information’ references to the interest rate applicable in the case of late payments, in the event of default, set out clearly and in a prominent place, and the elements taken into account when determining them (financial costs, recovery costs etc.) and to include a warning regarding the consequences connected with those cost elements?

5.

Does Article 6(2) of Directive 2008/48/EEC include the requirement to notify the early termination of a credit or loan agreement which gives rise to the charging of interest on late payments? Is the principle of the prohibition on unjustified enrichment contained in Article 7 of Directive 2008/48/EEC applicable where the credit institution seeks not only the recovery of the goods (the loan capital), but also the application of an especially high rate of interest on late payments?

6.

In the absence of any transposing provision and in the light of Article 11(2) of Directive 2005/29/EC, (5) may the court find of its own motion that it is an unfair practice to include in a contract a term concerning interest on late payments?

26.3.2011   

EN

Official Journal of the European Union

C 95/3

1.

Does Article 18(4) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (1) also apply to those involved in the shipment process?

2.

If not, is Article 18(1) of that regulation restricted by EU primary law on the protection of business secrets?

3.

If question 1 is answered in the affirmative, is the obligation under Article 18(1) of that regulation on the persons who arrange the shipments to disclose the name of the waste producer or waste collector to the consignee of the waste by means of the document set out in Annex VII limited by Article 18(4) in order to protect business secrets?

4.

If question 3 is answered in the affirmative, does the extent of the limitation depend on a weighing up of the interests (on the one hand, the business interests affected, on the other, protection of the environment) on a case-by-case basis?

26.3.2011   

EN

Official Journal of the European Union

C 95/3

1.

Is the first sentence of Article 3(2) of Regulation 343/2003, (1) pursuant to which a Member State is entitled to examine an asylum application made to it which, under Article 3(1) of the regulation, another Member State is responsible for (‘the Member State assuming responsibility’), in derogation from that responsibility (the so-called ‘right to assume responsibility’), to be interpreted as meaning that the duty of a Member State to exercise the right granted to it under that provision to the benefit of asylum-seekers can also be inferred from reasons not directly associated with the asylum-seeker himself or other particularities of an individual case, but which result from a situation in the Member State assuming responsibility which poses a threat to the fundamental rights of asylum-seekers under the Charter of Fundamental Rights of the European Union (‘Charter of Fundamental Rights’)?

2.

If the first question should be answered in the affirmative:

Does the case where the Member State assuming responsibility has failed to satisfy in a serious manner and for an uncertain period of time one or several of the requirements laid down in Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers (OJ 2003 L 31, p. 18) and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) provide relevant grounds for a Member State to be required to assume responsibility as a result of the situation in the Member State required to assume responsibility with a view to protecting the fundamental rights in Article 3(1), Article 4, Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights?

3.

If the second question should be answered in the negative:

Is there a duty on the part of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003 in view of the guarantees laid down in the Charter of Fundamental Rights referred to above at any rate if, in the Member State assuming responsibility, particularly serious deficiencies exist which could fundamentally compromise the procedural guarantees for asylum-seekers or pose a threat to the existence or the physical integrity of the transferred asylum-seeker?

4.

If either the second or third question should be answered in the affirmative:

Does an enforceable personal right on the part of the asylum-seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003?

26.3.2011   

EN

Official Journal of the European Union

C 95/4

1.

Does Article 49 EC prelude the application of a national provision such as Article 29(2)(d) of the Law of 11 April 1983, in so far as:

first, that provision permits the grant of a tax credit, the notional withholding tax, to the recipients of income from debt-claims or loans granted to a coordination centre, within the meaning of Royal Decree No 187 of 30 December 1982 on the creation of coordination centres, when the company which uses the funds borrowed by or through the coordination centre in order to acquire a tangible asset which it uses in Belgium in the exercise of its business activity, confers the right to use that asset on a company which forms part of the same group of companies and which is resident in Belgium, whereas, second, that provision does not permit the grant of a tax credit when the same company confers a right to use the same tangible asset on a company which also forms part of the same group of companies but which is resident in a Member State other than Belgium?

2.

Must Article 10 EC, read in conjunction with Article 49 EC, be understood as prohibiting an interpretation of a provision such as Article 29(2)(d) of the Law of 11 April 1983, which makes the grant of a tax credit, the notional withholding tax, to the recipients of income from debt-claims or loans granted to a coordination centre, within the meaning of Royal Decree No 187 of 30 December 1982 on the creation of coordination centres, subject to the condition that no right to use the tangible asset financed by means of those debt-claims or loans is conferred on a member of the group established in another Member State, by any company in the group, and not only by the company which acquires the tangible asset through that financing, and which uses it in Belgium in the exercise of its business activity?

26.3.2011   

EN

Official Journal of the European Union

C 95/5

1.

Does a passenger have a right to compensation under Article 7 of 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, (1) in the case where departure was delayed for a period which is below the limits specified in Article 6(1) of that regulation, but arrival at the final destination was at least three hours later than the scheduled arrival time?

2.

If the first question is answered in the negative:

For the purpose of determining whether there was a delay, within the terms of Article 6(1) of Regulation No 261/2004, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination?

26.3.2011   

EN

Official Journal of the European Union

C 95/5

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?

26.3.2011   

EN

Official Journal of the European Union

C 95/6

26.3.2011   

EN

Official Journal of the European Union

C 95/6

—

Grant the appeal and set aside the judgment of the General Court of 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission

—

Annulment of all the financial corrections relating to aid for the production of olive oil granted in Commission Decision 2008/68/EC (1) of 20 December 2007; in the alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 24 November 2002; in the further alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 15 July 2000.

1.

Internal inconsistency in the reasoning of the General Court and breach of Article 8 of Regulation 1663/95 (2) in accepting that the Commission should base its financial correction on irregularities not specified in letter AGR 16844 by which the results of investigation HO/2002/91/ES were communicated.

2.

Breach of Articles 36 and 53 of the Statute of the Court of Justice arising from failure to state sufficient reasons in the judgment by making no mention at all of, and as a result not ruling on, an essential head of claim formulated by the Kingdom of Spain in the record of the hearing concerning the determination of the dies ad quem for the time-limit of 24 months provided for in Article 5(2)(c) of Regulation No 729/70 (3) and Article 7 of Regulation No 1258/1999. (4)

3.

Infringement of the time-limit of 24 months established in Article 5(2)(c) of Regulation No 729/70 and Article 7 of Regulation No 1258/1999:

26.3.2011   

EN

Official Journal of the European Union

C 95/7

1.

dismisses the action;

2.

orders Yorma’s AG to pay the costs.

26.3.2011   

EN

Official Journal of the European Union

C 95/7

—

Annulment of the Commission debit note and recovery order No 3241011280, in so far as, in respect of the Republic of Hungary, it classifies as not eligible for subsidy under the Schengen Facility certain expenditure relating to measures 1, 3, 4, 5 and 6 of objective III/A, to the customs objective III/B and, under objective I/C, to the Mohács inland waterway border control facility and the railway station at Eperjeske.

—

In the alternative, partial annulment of the Commission debit note and recovery order No 3241011280, in so far as, in respect of the Republic of Hungary, it classifies as not eligible or only partially eligible for subsidy under the Schengen Facility certain expenditure relating to measures 1, 3, 4, 5 and 6 of objective III/A, and to the customs objective III/B.

—

An order that the Commission pay the costs.

26.3.2011   

EN

Official Journal of the European Union

C 95/8

—

annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Air France-KLM, as well the grounds underlying the operative part of the Decision;

—

at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes two fines on Air France-KLM, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, those fines to an appropriate amount;

—

in any event, order the European Commission to pay all the costs.

1.

First plea, alleging incorrect attribution to the applicant of liability for the practices of Société Air France and KLM in breach of the obligation to state reasons, the rules governing the attribution to parent companies of the practices of their subsidiaries and of those governing the situation in which companies succeed one another within groups and the principles of personal liability and that penalties should fit the individual offender.

2.

Second plea, alleging infringement of the right to an independent and impartial tribunal resulting from the adoption of the contested decision by an authority which holds simultaneously powers of investigation and sanction, in breach of Article 47(2) of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

3.

Third plea, alleging infringement of the Commission's Leniency Notice adopted in 2002 (1) and of the principles of equal treatment and legitimate expectations resulting from the application of that notice in favour of Lufthansa/Swiss which does not fulfil the conditions of the Leniency Notice.

4.

Fourth plea, alleging infringement of the obligation to state reasons resulting from a contradiction between the operative part and the grounds of the contested decision as regards the definition of the infringement imputed to the applicant.

5.

Fifth plea, alleging failure to state the grounds and infringement of the principles of equal treatment and non-discrimination resulting from the abandoning of legal action against eleven airlines.

6.

Sixth plea, alleging infringement of the principles of non-retroactivity of more severe penalties and of legitimate expectations resulting from the application of the Commission's Guidelines of 2006 on setting fines (2) in respect of the calculation of the fines imposed on the applicant notwithstanding the fact that those guidelines had been adopted after the beginning of the investigation; that retroactive application of the 2006 Guidelines led to a significant increase in the fines which could not have been reasonably foreseen at the time of the facts.

7.

Seventh plea, alleging infringement of the applicant's right to be heard and of the principle of equality of arms with respect to the calculation of the fines imputed to it, since there was no exchange of arguments on the essential elements of the calculation of the fines.

8.

Eighth plea, alleging errors affecting the calculation of the fines imputed to the applicant, since those fines were calculated on the basis of incorrect sales values (i) which ought to have included only the surcharges referred to and not the tariffs and (ii) which could not include the amounts corresponding to 50 % of the European Economic Area inbound revenue of Société Air France and KLM.

9.

Ninth plea, alleging incorrect assessment of the gravity of the practices of Société Air France and KLM resulting from manifest errors of assessment and breach of the principle of equal treatment, first, because the Commission refused to take account of the lesser gravity of the surcharge infringements, the modest combined market share of the parties, the low profit margins achieved by Société Air France and KLM and the deterioration in their financial situation owing to the economic crisis in the air freight sector and, second, because the Commission included within the scope of the infringement contacts relating to the practices implemented outside of the European Economic Area.

10.

Tenth plea, alleging breach of the principle of the proportionality of penalties and a manifest error of assessment resulting from the application of an additional amount of 16 % in the fines imputed to the applicant, and of failure to state reasons in relation to the 16 % rate applied in that respect.

11.

Eleventh plea, alleging miscalculation of the duration of the infringement found against Société Air France, which led to an unjustified increase in the fine imputed to the applicant in respect of that infringement.

12.

Twelfth plea, alleging that the reduction of 15 % in the fines imputed to the applicant in respect of the regulatory regime governing air freight transport between Member States and third States is manifestly insufficient.

26.3.2011   

EN

Official Journal of the European Union

C 95/9

—

annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Société Air France, as well the grounds underlying the operative part of the Decision;

—

at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes a fine on Société Air France, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, that fine to an appropriate amount;

—

in any event, order the European Commission to pay all the costs.

26.3.2011   

EN

Official Journal of the European Union

C 95/9

—

annul Articles 1, 2, 3, 4, 5, 6 and 7 of the decision in whole or in part, or

—

reduce the fines imposed by Article 5 of the decision, and

—

condemn the Commission to the costs of the proceedings.

1.

First plea in law, alleging that:

2.

Second plea in law, alleging that the Commission committed manifest errors of assessment in the calculation of the fine in violation of Regulation 1/2003 (1), the fining guidelines and violated the principles of proportionality, equal treatment and the duty to state reasons contrary to Articles 41 and 49 of the Charter on Human Right of the European Union, Article 296 TFEU and other general principles of EU law. In this regard, the applicant argues that:

26.3.2011   

EN

Official Journal of the European Union

C 95/10

—

Grant this application for annulment of the decision of the defendant of 1 December 2010 in case COMP/39.784 — Omnis/Microsoft;

—

Refer the case back to the defendant for a decision;

—

In the alternative, the General Court should decide the case and uphold the applicant's complaint.

1.

The first plea in law is based on the fact that the refusal by the defendant to investigate the abuses by Microsoft on the EAS/ERP (Enterprise Application Software/Enterprise Resource Planning) market is based on unfounded arguments.

2.

The second plea in law is based on the fact that the defendant assessed the importance of the case wrongly, reaching the unfounded and unlawful conclusion that the issue raised by the applicant was of no interest to the EU.

3.

The third plea in law is based on the fact that the decision of the defendant not to follow up the applicant’s complaint is unlawful and unfounded in that it infringes the rights of the applicant.

4.

The fourth plea in law is based on the fact that the decision of the defendant was made without documentation to corroborate Microsoft’s statements being available, so that, as a result of that decision, the anti-competitive conduct complained of persists, and the development of the applicant is impeded.

26.3.2011   

EN

Official Journal of the European Union

C 95/11

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 November 2010 in case R 923/2009-2; and

—

Order the defendant to pay the costs of the proceedings.

26.3.2011   

EN

Official Journal of the European Union

C 95/11

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire to the extent that it concerns the applicant;

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire to the extent that it concerns the applicant;

—

order the Council of the European Union to pay the costs in accordance with Articles 87 and 91 of the Rules of Procedure of the General Court.

1.

First plea in law alleging an infringement of the rights of the defence and of the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in that the contested measures:

2.

Second plea in law alleging an infringement of the fundamental right to respect for property enshrined in Article 1 of Additional Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

26.3.2011   

EN

Official Journal of the European Union

C 95/13

1.

dismisses the action as inadmissible;

2.

orders AH to pay all the costs.

26.3.2011   

EN

Official Journal of the European Union

C 95/13

1.

dismisses the action;

2.

orders the Commission, in addition to bearing its own costs, to pay one quarter of the costs incurred by Mr Marcuccio

3.

orders Mr Marcuccio to bear three-quarters of his own costs..

26.3.2011   

EN

Official Journal of the European Union

C 95/13

1.

Annuls the decision of the European Commission of 4 March 2009 refusing to open an administrative enquiry into allegations of psychological harassment by one of Ms Skareby’s former hierarchical superiors;

2.

Orders the European Commission to pay all the costs.

26.3.2011   

EN

Official Journal of the European Union

C 95/14

—

Annul the decision of the appointing authority of 26 October 2010 rejecting the applicant’s complaint against the decision not to promote him to Grade AD 12 under the 2010 promotion procedure;

—

in so far as necessary, annul the decision of the appointing authority not to promote the applicant to Grade AD12 under the 2010 promotion procedure;

—

order the Council of the European Union to pay the costs.

26.3.2011   

EN

Official Journal of the European Union

C 95/14

—

Annul the decision of 11 May 2010 of the selection board rejecting Mrs Silvia Bojinova’s candidature for internal competition COM/INT/EU2/10/AD5 and the confirmatory decision of the appointing authority of 26 October 2010 rejecting the related complaint lodged on 16 August 2010:

—

annul the decision of 10 Mau 2010 of the selection board rejecting Mrs Dorina Maria Ghiba’s candidature for internal competition COM/INT/EU2/AST3 and the confirmatory decision of the appointing authority of 26 October 2010 rejecting the related complaint lodged on 4 August 2010;

—

order the European Commission to pay the costs.