Official Journal C 207/2013

20.7.2013

Official Journal of the European Union

C 207/2

Appeal brought on 22 March 2013 by Ghezzo Giovanni & C. Snc di Ghezzo Maurizio & C. against the order of the General Court (Fourth Chamber) of 22 January 2013 in Case T-218/00 Cooperativa Mare Azzurro Socialpesca Soc. coop. arl, formerly Cooperative Mare Azzurro Soc. coop. rl, and Cooperativa vongolari Sottomarina Lido Soc. coop. rl v European Commission

(Case C-145/13 P)

(2013/C 207/02)

Language of the case: Italian

Parties

Appellant: Ghezzo Giovanni & C. Snc di Ghezzo Maurizio & C. (represented by: R. Volpe and C. Montagner, avvocati)

Other parties to the proceedings: Cooperativa Mare Azzurro Socialpesca Soc. coop. rl, formerly Cooperativa Mare Azzurro Soc. coop. rl, Cooperativa vongolari Sottomarina Lido Soc. coop. rl, European Commission

Form of order sought

—

Uphold the present appeal,

—	accordingly, set aside the order of the General Court (Fourth Chamber) of 23 January 2013, notified on 24 January 2013 in Case T-218/00, and, consequently, annul Commission Decision 2000/394/EC of 25 November 1999, or,

—	in the alternative, annul Article 5 of that decision in so far as it imposes an obligation to recover the amount of relief granted from the social security contributions at issue and in so far as it provides that interest is to be added to that amount for the period in question;

—	order the Commission to pay the costs both at first instance and on appeal.

Pleas in law and main arguments

By its order of 23 January 2013 (‘the order under appeal’), the General Court declared that the action brought by Ghezzo Giovanni & C. Snc seeking the annulment of Commission Decision 2000/394/EC on relief from social security contributions was in part manifestly inadmissible and in part manifestly lacking any foundation in law.

The first ground of this appeal alleges that no reasons were given for deeming the action before the General Court inadmissible; therefore, paragraph 58 of the order under appeal breaches the general principle that there is a duty to state the reasons on which measures are based and, more specifically, infringes Article 81 of the Rules of Procedure of the General Court.

The second ground raised by the appellant alleges that there has not been a proper, exhaustive interpretation of Article 87(1) EC (now Article 107(1) TFEU).

It is also alleged that Article 87(1) EC has been infringed in that there has been a breach of the principle of equal treatment and non-discrimination, as 22 undertakings have been declared exempt from recovery of the aid granted to them on the grounds that they have provided comprehensive reasons for that grant, whereas the appellant has been deemed not to have provided comprehensive reasons for its grant.

The contested order also breaches the principle of non-discrimination, in that it confers legitimacy upon the Commission’s decision by virtue of which recovery of aid under Article 87(1) EC was excluded for municipal undertakings (which the Commission, when implementing that decision, allowed to provide any additional information necessary in order to assess the lawfulness of the aid granted), whereas the appellant was never asked for any supplementary documentation before recovery of the aid was initiated.

In further support of its allegations of infringement of Article 87(1) EC, another part of the appeal also states that the order under appeal does not provide any reasons for finding that the aid granted to the appellant had an effect on intra-Community trade. First the Commission and then the General Court found that the relief in question was unlawful, citing the distortion of intra-Community trade as an element inherent in granting aid to undertakings in the fishing industry, without carrying out any kind of examination of the relevant market or providing any statement of reasons for that finding.

The order under appeal also infringes Article 87(3)(a) EC (now Article 107(3)(a) TFEU), since it has not assessed the conditions for applying the derogation in question to the appellant’s situation. In particular, the standard of living in Chioggia is extremely low, with extraordinary levels of underemployment.

Similarly, the order under appeal infringes Article 87(3)(c) EC (now Article 107(3)(c) TFEU), in that it finds that the derogation does not apply to the appellant’s situation, although it has provided no reasons in that regard, and Article 87(3)(d) EC (now Article 107(3)(d) TFEU), in that, in breach of the principle of non-discrimination, it finds that the derogation which was found applicable to other Venetian undertakings does not apply to the appellant’s situation.

Lastly, it is alleged that the General Court erred in its interpretation regarding the absence of ‘existing aid’, thereby infringing Articles 1, 14 and 15 of Regulation 659/1999. (1) It cannot be denied that the succession of rules in force represents a continuous reduction in social security contributions over a period of several decades.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

20.7.2013

Official Journal of the European Union

C 207/3

Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 April 2013 — Stanislav Gross v Hauptzollamt Braunschweig

(Case C-165/13)

(2013/C 207/03)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Stanislav Gross

Defendant: Hauptzollamt Braunschweig

Question referred

Does the second subparagraph of Article 9(1) of Council Directive 92/12/EEC (1) on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, notwithstanding its schematic connection with Article 7(3) of that directive, preclude legislation of a Member State under which a person who, for commercial purposes, holds products subject to excise duty which have been released for consumption in another Member State is not liable for duty in circumstances where he did not acquire those products from another person until after the entry process had been completed?

(1) OJ 1992 L 76, p. 1.

20.7.2013

Official Journal of the European Union

C 207/3

Action brought on 5 April 2013 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-172/13)

(2013/C 207/04)

Language of the case: English

Parties

Applicant: European Commission (represented by: W. Roels, R. Lyal, agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

—

declare that by imposing conditions on cross-border group relief that make it virtually impossible in practice to obtain such relief and by restricting such relief to periods after 1 April 2006, the United Kingdom has failed to comply with its obligations under Article 49 of the Treaty on the Functioning of the European Union and Article 31 of the Agreement on the European Economic Areaorder United Kingdom of Great Britain and Northern Ireland to pay the costs.

—	order the United Kingdom to pay the costs.

Pleas in law and main arguments

Following the judgment in Case C-446/03 Marks & Spencer, the United Kingdom amended its legislation governing the manner in which the losses suffered by companies which are members of a group may be transferred and used by another member of the group in order to reduce its tax liability (group relief rules). The provisions governing losses of non-resident companies are now contained in Part 5 of the Corporation Tax Act 2010.

Under the United Kingdom legislation now in force, a group company may obtain a tax credit for the losses of a non-resident group member only if the latter has no possibility of relief in its State of residence. In relation to the possibility of future relief the United Kingdom legislation makes it virtually impossible to demonstrate compliance with that condition, since that possibility falls to be determined ‘as at the time immediately after the end’ of the tax year in which the loss was suffered. That condition is for all practical purposes impossible to meet. It follows that the legislation precludes any relief at all for the losses of a non-resident subsidiary, contrary to the freedom of establishment as interpreted in Case C-446/03 Marks & Spencer.

Secondly, the new rules on group relief for foreign losses apply only to losses suffered after 1 April 2006, the date of entry into force of those rules. That temporal limitation (that is to say, the exclusion of relief under the legislation for losses suffered before that date) is contrary to the freedom of establishment.

20.7.2013

Official Journal of the European Union

C 207/4

Appeal brought on 9 April 2013 by Axitea SpA, formerly La Vigile San Marco SpA, against the order of the General Court (Fourth Chamber) delivered on 22 January 2013 in Case T-262/00 La Vigile San Marco SpA v European Commission

(Case C-174/13 P)

(2013/C 207/05)

Language of the case: Italian

Parties

Appellant: Axitea SpA, formerly La Vigile San Marco SpA (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

Other parties to the proceedings: Italian Republic, European Commission

Form of order sought

—	Set aside and/or vary the order of the General Court (Fourth Chamber) delivered in Case T-262/00, and order the Commission to pay the costs

Pleas in law and main arguments

In support of its appeal, the appellant alleges errors of law in the application of the principles outlined by the Court of Justice in its judgment in Comitato ‘Venezia vuole vivere’ and Others v Commission, regarding (i) the duty to state the reasons for decisions of the Commission relating to State aid and (ii) the allocation of the burden of proof concerning the conditions laid down in Article 107(1) TFEU.

In the order that is the subject of the present appeal, the General Court did not comply with the judgment delivered by the Court of Justice on 9 June 2011 in Comitato ‘Venezia vuole vivere’, in so far as that judgment states that a decision of the Commission ‘must contain in itself all the matters essential for its implementation by the national authorities’. However, even though the decision at issue in the present case lacked the matters essential for its implementation by the national authorities, the General Court failed to find any deficiency in the method used by the Commission in the contested decision, and consequently erred in law.

On the basis of the principles outlined by the Court in its judgment in Comitato ‘Venezia vuole vivere’, when aid is being recovered, it is the Member State — and not, therefore, the individual beneficiary — which is required to show, in each individual case, that the conditions laid down in Article 107(1) TFEU are met. In the present case, however, in the contested decision the Commission failed to clarify the ‘modalities’ of any such verification; consequently, since it did not have available to it, at the time when the aid was to be recovered, the information necessary to show that the advantages granted constituted, in the hands of the beneficiaries, State aid, the Italian Republic — by Law No 228 of 24 December 2012 (Article 1, paragraph 351 et seq.) — decided to reverse the burden of proof, in breach of Community case-law. According to the Italian legislature, in particular, it is not for the State but for the individual beneficiaries of aid granted in the form of relief to prove that the advantages in question do not distort competition or affect trade between Member States. In the absence of any such proof, there is a presumption that the advantage granted was likely to distort trade and affect trade between Member States. That presumption is clearly contrary to the principles outlined by the Court in Comitato ‘Venezia vuole vivere’.

20.7.2013

Official Journal of the European Union

C 207/4

Appeal brought on 9 April 2013 by Marek Marszałkowski against the judgment of the General Court (First Chamber) delivered on 4 February 2013 in Case T-159/11 Marszałkowski v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Mar-Ko Fleischwaren GmbH & Co. KG

(Case C-177/13 P)

(2013/C 207/06)

Language of the case: Polish

Parties

Appellant: Marek Marszałkowski (represented by: C. Sadkowski, radca prawny)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Mar-Ko Fleischwaren GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

—

set aside in its entirety the judgment under appeal of the General Court, confirm the invalidity of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 January 2011 (Case R 760/2010-4), order OHIM to proceed with registration of the mark ‘Marko Walichnowy’ applied for on behalf of the appellant in so far as it concerns the goods mentioned in the appeal, and order the other party to the appeal proceedings to pay the costs of the present proceedings and the costs of the proceedings before the General Court;

—	in the alternative, set aside in its entirety the judgment under appeal of the General Court and refer the case back to that Court for reconsideration, in accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice.

Pleas in law and main arguments

The appellant claims that the General Court breached Article 8(1)(b) of Regulation No 207/2009 and Article 48(2) of its own Rules of Procedure.

With regard to the breach of Article 8(1)(b) of Regulation No 207/2009, the appellant submits that the General Court:

—	committed a beach of law in failing to examine correctly whether the goods covered by the application for registration of the marks in conflict were similar;

—	committed a breach of law in misapplying Article 8(1)(b) by finding that the marks in conflict were similar;

—	committed a breach of law in finding that the word MARKO was the dominant element of the sign ‘Walichnowy Marko’;

—	committed a breach of law in failing to define the relevant public in respect of whom there was a likelihood of confusion, and in indicating that that likelihood existed in the mind of the average Polish consumer;

—	committed a breach of law in failing to have regard for the reputation of the trade mark ‘Walichnowy Marko’ and in failing to take account of the fact that it has enjoyed priority within Polish territory since as early as 1995;

—	committed a breach of law in failing to have regard for the level of attention which the average consumer has for the goods to which the marks in conflict are attached and in failing to consider whether that level of attention might reduce the likelihood of confusion.

With regard to the breach of Article 48(2) of the Rules of Procedure of the General Court, the appellant submits that, in paragraph 26 of the judgment under appeal, the General Court erred in holding that it was not until the stage of the hearing that the present appellant stated that the mark applied for had been registered in Poland since 1995.

20.7.2013

Official Journal of the European Union

C 207/5

Appeal brought on 12 April 2013 by Vetrai 28 srl, formerly Barovier & Toso Vetrerie Artistiche Riunite srl and Others against the order of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-272/00 Barbini and Others v European Commission

(Case C-180/13 P)

(2013/C 207/07)

Language of the case: Italian

Parties

Appellants: Vetrai 28 srl, formerly Barovier & Toso Vetrerie Artistiche Riunite srl and Others (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

Other parties to the proceedings: Alfredo Barbini srl and Others, Italian Republic, European Commission

Form of order sought

—	Set aside and/or vary the order of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-272/00, and order the Commission to pay the costs.

Pleas in law and main arguments

In support of their appeal, the appellants allege errors of law in the application of the principles outlined by the Court of Justice in its judgment in Comitato ‘Venezia vuole vivere’ and Others v Commission, regarding (i) the duty to state the reasons for decisions of the Commission relating to State aid and (ii) the allocation of the burden of proof concerning the conditions laid down in Article 107(1) TFEU.

20.7.2013

Official Journal of the European Union

C 207/6

Request for a preliminary ruling from the Commissione tributaria provinciale di Latina (Italy) lodged on 12 April 2013 — Francesco Acanfora v Equitalia Sud SpA and Agenzia delle Entrate

(Case C-181/13)

(2013/C 207/08)

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Latina

Parties to the main proceedings

Applicant: Francesco Acanfora

Defendants: Equitalia Sud SpA — Agente di Riscossione Latina, Agenzia delle Entrate — Ufficio di Latina

Question referred

Does the 9 % commission premium (‘aggio’) [established by Legislative Decree No 112/1999, prior to the amendments which have been introduced] constitute State aid which is incompatible with the single market as regards fees for collection and with Community law pursuant to Article 107 TFEU?

20.7.2013

Official Journal of the European Union

C 207/6

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 April 2013 — Anonima Petroli Italiana SpA (API) v Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

(Case C-184/13)

(2013/C 207/09)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Anonima Petroli Italiana SpA (API)

Defendants: Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

Questions referred

Is the protection of freedom of competition, free movement of undertakings, freedom of establishment and freedom to provide services (under Article 4(3) TEU, Article 101 TFEU, and Articles 49, 56 and 96 TFEU) compatible — and, if so, to what extent — with statutory provisions adopted by EU Member States which lay down minimum operating costs for the road haulage sector which involve the fixing by bodies external [to the contracting parties] of a component of the charge for the service concerned and, accordingly, of the contract price?

Are such limitations of those principles justifiable — and, if so, under what conditions — in the light of the need to safeguard the public interest in road traffic safety and, in terms of that functional consideration, is there a proper place for the fixing of minimum operating costs as provided for under Article 83a of Legislative Decree No 112/2008 (as subsequently amended and supplemented)?

Can the determination of minimum operating costs, to the above end, be left — in the absence of criteria predetermined by the legislation — to voluntary agreements between the types of trader concerned, failing which to bodies whose composition is characterised by the strong presence of persons representing private traders in that sector?

20.7.2013

Official Journal of the European Union

C 207/6

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 April 2013 — ANCC-Coop Associazione Nazionale Cooperative di Consumatori and Others v Ministero delle Infrastrutture e dei Trasporti and Others

(Case C-185/13)

(2013/C 207/10)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: ANCC-Coop Associazione Nazionale Cooperative di Consumatori, ANCD Associazione Nazionale Cooperative Dettaglianti, Sviluppo Discount SpA, Centrale Adriatica Soc coop, Coop Consorzio Nord Ovest Società Consortile arl, Coop Italia Consorzio Nazionale non Alimentari Società Cooperativa, Coop Centro Italia Società Cooperativa, Tirreno Logistica srl, Unicoop Firenze Società Cooperativa, CONAD — Consorzio Nazionale Dettaglianti — Soc. Coop., Conad Centro Nord Soc. Coop, Commercianti Indipendenti Associati Soc. Coop, Conad del Tirreno Soc. Coop, Pac2000A Soc. Coop, Conad Adriatico Soc. Coop, Conad Sicilia Soc. Coop, Sicilconad Mercurio Soc. Coop

Defendants: Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico, Consulta Generale per l'Autotrasporto e la Logistica, Osservatorio sulle Attività di Autotrasporto, Autorità Garante della Concorrenza e del Mercato — Antitrust

Questions referred

20.7.2013

Official Journal of the European Union

C 207/7

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 April 2013 — Air Liquide Italia SpA and Others v Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

(Case C-186/13)

(2013/C 207/11)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: Air Liquide Italia SpA and Others

Defendants: Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

Questions referred

20.7.2013

Official Journal of the European Union

C 207/7

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 April 2013 — Confederazione Generale Italiana dei Trasporti e della Logistica (Confetra) and Others v Ministero delle Infrastrutture e dei Trasporti and Others

(Case C-187/13)

(2013/C 207/12)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: Confederazione Generale Italiana dei Trasporti e della Logistica (Confetra) and Others

Defendants: Ministero delle Infrastrutture e dei Trasporti and Others

Questions referred

20.7.2013

Official Journal of the European Union

C 207/8

Appeal brought on 15 April 2013 by Confindustria Venezia, formerly Unione degli Industriali della Provincia di Venezia (Unindustria) and Others against the order of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-273/00 Unindustria and Others v European Commission

(Case C-191/13 P)

(2013/C 207/13)

Language of the case: Italian

Parties

Appellants: Confindustria Venezia, formerly Unione degli Industriali della Provincia di Venezia (Unindustria) and Others (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

Other parties to the proceedings: European Commission, Siram SpA, Bortoli Ettore Srl, Arsenale Venezia SpA, Italian Republic

Form of order sought

—	Set aside and/or vary the order of the General Court (Fourth Chamber) delivered in Case T-273/00, and order the Commission to pay the costs

Pleas in law and main arguments

20.7.2013

Official Journal of the European Union

C 207/8

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 15 April 2013 — Esso Italiana srl v Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

(Case C-194/13)

(2013/C 207/14)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Esso Italiana srl

Defendants: Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

Questions referred

20.7.2013

Official Journal of the European Union

C 207/9

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 15 April 2013 — Confederazione generale dell'industria italiana (Confindustria) and Others v Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

(Case C-195/13)

(2013/C 207/15)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: Confederazione generale dell'industria italiana (Confindustria) and Others

Defendants: Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

Questions referred

20.7.2013

Official Journal of the European Union

C 207/9

Action brought on 16 April 2013 — European Commission v Italian Republic

(Case C-196/13)

(2013/C 207/16)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and D. Recchia, acting as Agents)

Defendant: Italian Republic

Form of order sought

—

Declare that, by having failed to take all the necessary measures to comply with the judgment of the Court of Justice of the European Communities of 26 April 2007 in Case C-135/05, in which it was declared that the Italian Republic had failed to fulfil its obligations under Articles 4, 8 and 9 of Directive 75/442/EEC, (1) as amended by Directive 91/156/EEC, (2) under Article 2(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, (3) and under Article 14(a) to (c) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, (4) the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU;

—	Order the Italian Republic to pay to the Commission a daily penalty payment in an amount of EUR 256 819,2 for the delay in complying with the judgment in Case C-135/05, from the date of judgment in the present case until the date on which the judgment in Case C-135/05 is complied with;

—

Order the Italian Republic to pay to the Commission a lump sum, the amount of which is calculated by multiplying a daily amount of EUR 28 089,6 by the number of days over which the failure to fulfil obligations continues, from the date of delivery of the judgment in Case C-135/05 until the date of judgment in the present case;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

With regard to the infringement of Articles 4, 8 and 9 of Directive 75/442/EEC, as amended by Directive 91/156/EEC, and of Article 2(1) of Directive 91/689/EEC on hazardous waste, according to the information provided by the Italian authorities, there are still at least 218 illegal landfills in Italy, located across all the Italian regions. Since they have not been authorised, the 218 illegal landfills do not comply with the abovementioned provisions.

With regard to the infringement of Article 14(a) to (c) of Directive 1999/31/EC on the landfill of waste, according to the information provided by the Italian authorities, there continue to be five landfills in respect of which the relevant conditioning plans have not been submitted or approved and which have nevertheless not been closed by the competent authorities, in breach of the abovementioned provisions.

The proposed penalty (daily penalty payment and lump sum) is proportionate to the gravity and duration of the infringement, taking account, inter alia, of the need to ensure that the penalty acts as an effective deterrent.

(1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

(2) Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

(3) Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20).

(4) Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1).

20.7.2013

Official Journal of the European Union

C 207/10

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 18 April 2013 — Cruciano Siragusa v Regione Sicilia — Soprintendenza Beni Culturali e Ambientali di Palermo

(Case C-206/13)

(2013/C 207/17)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicant: Cruciano Siragusa

Defendant: Regione Sicilia — Soprintendenza Beni Culturali e Ambientali di Palermo

Questions referred

Do Article 17 of the Charter of Fundamental Rights of the European Union and the principle of proportionality, as a general principle of European Union law, preclude the application of a provision of national law such as Article 167(4)(a) of Legislative Decree No 42 of 2004, under which a ‘landscape compatibility clearance’ [(autorizzazione paesaggistica)] may not be issued by way of retrospective regularisation in any cases where human activity has resulted in an increase in floor area and volume, regardless of whether a specific appraisal has been undertaken as to whether the activity in question is compatible with the features of the landscape of the particular site which merit protection?

20.7.2013

Official Journal of the European Union

C 207/10

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 15 April 2013 — Autorità Garante della Concorrenza e del Mercato v Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

(Case C-208/13)

(2013/C 207/18)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Autorità Garante della Concorrenza e del Mercato

Defendants: Ministero delle Infrastrutture e dei Trasporti, Ministero dello Sviluppo Economico

Questions referred

20.7.2013

Official Journal of the European Union

C 207/11

Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 19 April 2013 — František Ryneš v Úřad pro ochranu osobních údajů

(Case C-212/13)

(2013/C 207/19)

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: František Ryneš

Defendant: Úřad pro ochranu osobních údajů

Question referred

Can the operation of a camera system installed on a family home for the purposes of the protection of the property, health and life of the owners of the home be classified as the processing of personal data ‘by a natural person in the course of a purely personal or household activity’ within the meaning of Article 3(2) of Directive 95/46/EC, (1) even though such a system monitors also a public space?

(1) OJ 1995 L 281, p. 31.

20.7.2013

Official Journal of the European Union

C 207/11

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2013 — Impresa Pizzarotti & C. SpA v Comune di Bari

(Case C-213/13)

(2013/C 207/20)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Impresa Pizzarotti & C. SpA

Defendant: Comune di Bari

Questions referred

Is a contract to be concluded for the lease of something in the future — even in the form, suggested most recently, of an undertaking to lease — equivalent to a public works contract, albeit with certain characteristics of a lease contract, with the result that such a contract cannot be included among the contracts which are excluded, under Article 16 of Directive 2004/18/EC, (1) from the scope of the rules on public procedures?

If the answer to Question 1 is in the affirmative, may a national court — specifically, this referring court — hold that the ruling made regarding the events under consideration … is ineffective in that it has enabled a situation which is contrary to Community law on public procurement to persist and, therefore, is it possible to enforce a final judgment which is contrary to Community law?

(1) Directive 2004/18/EC 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 (OJ 2004 L 134, p. 114).

20.7.2013

Official Journal of the European Union

C 207/11

Request for a preliminary ruling from the Tribunale di Trento (Italy) lodged on 25 April 2013 — Teresa Mascellani v Ministero della Giustizia

(Case C-221/13)

(2013/C 207/21)

Language of the case: Italian

Referring court

Tribunale di Trento

Parties to the main proceedings

Applicant: Teresa Mascellani

Defendant: Ministero della Giustizia

Questions referred

In so far as it provides that ‘[t]he refusal by a worker to be transferred from full-time to part-time work or vice-versa should not in itself constitute a valid reason for termination of employment, without prejudice to the possibility, under national laws, collective agreements and practice, of termination for other reasons such as may arise from the operational requirements of the establishment concerned’, must Clause 5.2 of the Agreement implemented by Directive 97/81/EC (1) be construed as meaning that provision may not be made in the legislation of Member States for employers to be able to convert a part-time employment relationship into a full-time relationship even where the employee does not consent?

2.	Does Directive 97/81/EC preclude a provision of national law (such as Article 16 of Italian Law No 183 of 4 November 2010) under which employers may convert a part-time employment relationship into a full-time employment relationship even where the employee does not consent?

(1) Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9).

20.7.2013

Official Journal of the European Union

C 207/12

Request for a preliminary ruling from the Teleklagenævnet (Denmark) lodged on 25 April 2013 — TDC A/S v Erhvervsstyrelsen

(Case C-222/13)

(2013/C 207/22)

Language of the case: Danish

Referring court

Teleklagenævnet

Parties to the main proceedings

Applicant: TDC A/S

Defendant: Erhvervsstyrelsen

Questions referred

Does Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), (1) including Article 32, preclude a Member State from laying down rules which do not allow an undertaking to lodge a claim against the Member State for separate recovery of the net costs of providing additional mandatory services not covered by Chapter II of that directive, where the undertaking’s profits from other services which are covered by the undertaking’s universal service obligations under Chapter II of that directive exceed the losses associated with the provision of the additional mandatory services?

Does the Universal Service Directive preclude a Member State from laying down rules allowing undertakings only to lodge a claim against the Member State for recovery of the net costs of providing additional mandatory services which are not covered by Chapter II of that directive, if the net costs amount to an unreasonable burden for the undertakings?

If question 2 is answered in the negative, may the Member State decide that there is no unreasonable burden associated with the provision of additional mandatory services not covered by Chapter II of that directive, if the undertaking as a whole has achieved profits from the provision of all those services where that undertaking has a universal service obligation, including the provision of services which the undertaking also would have provided without having the universal service obligation?

Does the Universal Service Directive preclude a Member State from laying down rules that a designated undertaking’s net costs associated with the provision of universal service pursuant to Chapter II of that directive is to be calculated on the basis of all income and costs associated with the provision of the service in question, including that income and those costs which the undertaking also would have had without having the universal service obligation?

Does it affect the answers to questions 1-4 if an additional mandatory service is required to be provided in Greenland which, under Annex II to the TFEU, is an overseas country or territory, when the Danish authorities impose an obligation on an undertaking established in Denmark and the undertaking has no other activities in Greenland?

Of what significance are Article 107(1), Article 108(3) TFEU and Commission Decision of 20 December 2011 on the application of Article 106(2) TFEU to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest for the answers to questions 1-5?

7.	Of what significance is the principle of minimum distortion of competition in, inter alia, Article 1(2), Article 3(2) and recitals (4), (18), (23) and (26) in the preamble to and Part B of Annex IV to the Universal Service Directive for the answers to questions 1-5?

8.	If the provisions of the Universal Service Directive preclude national schemes as referred to in questions 1, 2 and 4, do those provisions or preclusions have direct effect?

(1) OJ L 108, p. 51.

20.7.2013

Official Journal of the European Union

C 207/13

Request for a preliminary ruling from the Tribunale di Cagliari (Italy) lodged on 26 April 2013 — Criminal proceedings against Sergio Alfonso Lorrai

(Case C-224/13)

(2013/C 207/23)

Language of the case: Italian

Referring court

Tribunale di Cagliari

Parties to the main proceedings

Sergio Alfonso Lorrai

Questions referred

On a proper construction of Article 6 ECHR and of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, do those provisions preclude the application of Articles 70, 71 and 72 of the [Italian] Criminal Procedure Code in so far as they require criminal proceedings to be stayed indefinitely and, in addition, regular expert assessments to be carried out in respect of the defendant, once it has been ascertained that that defendant is incapable of taking part in the proceedings in a state of full awareness, by reason of a medical condition which is irreversible and unlikely to improve?

On a proper construction of Article 6 ECHR and of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, do those provisions preclude the application of point (3) of the first paragraph of Article 159 of the Criminal Code in so far as it requires the limitation period to be prolonged indefinitely (extended on a six-month basis under Article 72 of that Code) in the event that a defendant is incapable of taking part in the proceedings in a state of full awareness, by reason of a medical condition which is irreversible and unlikely to improve?

20.7.2013

Official Journal of the European Union

C 207/13

Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 29 April 2013 — Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix v Région wallonne

(Case C-225/13)

(2013/C 207/24)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix

Defendant: Région wallonne

Questions referred

Is Article 7 of Directive 75/442/EEC (1) on waste to be interpreted as permitting the classification as a waste management plan of a legislative provision that states that, in derogation from the rule that no landfills may be authorised except on the sites provided for in the waste management plan, landfills authorised before that waste management plan entered into force may, after such entry into force, be the subject-matter of new authorisations in respect of the plots covered by the authorisation pre-dating the entry into force of the waste management plan?

Is Article 2(a) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (2) to be interpreted as including within the meaning of plan and programme a legislative provision which states that, in derogation from the rule that no landfills may be authorised except on the sites provided for in the waste management plan required by Article 7 of Directive 75/442/EEC on waste, landfills authorised before that waste management plan entered into force may, after such entry into force, be the subject-matter of new authorisations in respect of the plots covered by the authorisation pre-dating the entry into force of the waste management plan?

3.	If the answer to the second question is in the affirmative, does the second paragraph of Article 70 of the Decree of 27 June 1996 on waste, as amended by the Decree of 16 October 2003, satisfy the requirements for the assessment of effects laid down in Directive 2001/42/EC?

(1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

(2) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).

20.7.2013

Official Journal of the European Union

C 207/13

Appeal brought on 29 April 2013 by Albergo Quattro Fontane Snc against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

(Case C-227/13 P)

(2013/C 207/25)

Language of the case: Italian

Parties

Appellant: Albergo Quattro Fontane Snc (represented by: A. Bianchini and F. Busetto, avvocati)

Other parties to the proceedings: Comitato ‘Venezia vuole vivere’, European Commission

Form of order sought

—	Set aside the order of the General Court under appeal

—

Uphold the forms of order sought at first instance and, accordingly,

—	annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995;

—	in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

—	order the Commission to pay the costs incurred both at first instance and on appeal.

Grounds of appeal and main arguments

In support of the appeal, the appellant raises nine grounds of appeal:

First ground: the General Court erred in not taking into consideration the fact that the measures in question did not confer any advantage upon their beneficiaries given their compensatory nature.

Second ground: the Court erred in not excluding, or at least assessing, the likelihood that the measures in question would affect competition and intra-Community trade.

Third ground: the Court erred in holding that the derogations in Article 87(2)(b) EC (now Article 107(2)(b) TFEU) and Article 87(3)(b) EC (now Article 107(3)(b) TFEU) were inapplicable.

Fourth ground: the Court erred in holding that the derogation in Article 87(3)(c) EC (now Article 107(3)(c) TFEU) was inapplicable.

Fifth ground: the Court erred in holding that the derogations in Article 87(3)(d) and (e) EC (now Article 107(3)(d) and (e) TFEU) were inapplicable.

Sixth ground: the Court erred in holding that the derogation in Article 86(2) EC (now Article 106(2) TFEU) was inapplicable.

Seventh ground: the Court erred in not recognising the existence of the aid, thus infringing Article 88(3) EC (now Article 108(3) TFEU) and Article 15 of Regulation No 659/1999. (1)

Eighth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the recovery order.

Ninth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the addition of interest.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

20.7.2013

Official Journal of the European Union

C 207/14

Appeal brought on 29 April 2013 by Hotel Gabrielli srl, formerly Hotel Gabrielli Sandwirth SpA, against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

(Case C-228/13 P)

(2013/C 207/26)

Language of the case: Italian

Parties

Appellant: Hotel Gabrielli srl, formerly Hotel Gabrielli Sandwirth SpA (represented by: A. Bianchini and F. Busetto, avvocati)

Other parties to the proceedings: European Commission, Comitato ‘Venezia vuole vivere’

Form of order sought

—	Set aside the order of the General Court under appeal

—

Uphold the forms of order sought at first instance and, accordingly,

—	annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995;

—	in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

—	order the Commission to pay the costs incurred both at first instance and on appeal.

Grounds in law and main arguments