ddrg/super_eurlex huggingface dataset:
Actions brought by officials – Plea of illegality – Measures the illegality of which may be pleaded – Rules of an EU agency on the appraisal of contract staff – Dispute in the context of an appeal against a decision not to renew a contract based on career development reports – Applicant having the right to appeal those reports but not having exercised it – Inadmissibility

(Art. 277 TFEU; Statute of the Court of Justice, Art. 43)

(see paras 26-39)
21

In those circumstances, the Bundessozialgericht (Federal Social Court, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 62(1), in conjunction with Article 62(2), of Regulation No 883/2004 to be interpreted as meaning that, when a worker becomes unemployed, the competent institution of the Member State of residence must base the calculation of benefits on the “salary” that the person concerned “received” in respect of his or her last activity as an employed person in the territory of that institution even in the case where, under the national legislation on unemployment benefits administered by the competent institution, that salary cannot be taken into account as the person concerned has not been in receipt of it for a sufficiently long period and a notional assessment of the benefits is provided for as an alternative? (2) Is Article 62(1), in conjunction with Article 62(2), of Regulation No 883/2004 to be interpreted as meaning that, when a worker becomes unemployed, the competent institution of the Member State of residence must base the calculation of benefits on the “salary” that the person concerned “received” in respect of his or her last activity as an employed person in the territory of that institution even in the case where, under the national legislation administered by the competent institution, that salary may not be included as a basis for calculating the benefits in the reference period because it was not processed timeously and a notional assessment of the benefits is provided for as an alternative?’
25

Therefore, in view of those factors and in order to provide an answer that will assist the referring court in resolving the dispute before it, it is necessary to reformulate the first question and to consider that that question is asking, in essence, whether Regulation No 261/2004, and in particular Article 7 thereof, must be interpreted as meaning that a passenger who had a single reservation for connecting flights is entitled to compensation in the case where that reservation is amended against the passenger’s will, with the result that, first, the passenger did not board the first of his or her reserved flights even though that flight went ahead and, second, the passenger was given a seat on a later flight which allowed him or her to board the second of his or her reserved flights and thus to reach his or her final destination at the arrival time originally scheduled.
26

It should be pointed out, first of all, that the Court has already had occasion to state that Articles 35 and 36 of Directive 2002/83 are to be interpreted as meaning that the period for exercising the right to cancel a life assurance contract begins to run from the moment when the policy holder is informed that the contract is concluded, even though the information provided by the insurance company to that policy holder indicates formal requirements that are in reality not required by the national law applicable to that contract or by the clauses set out in that contract, provided that such an indication does not essentially limit the circumstances in which the policy holder can exercise his or her right of cancellation as compared with the circumstances in which he or she could have done so if that information had been correct. It is for the referring court to assess, on the basis of an overall assessment taking into account, in particular, the national legislative context and the facts in the main proceedings, whether the error contained in the information provided to the policy holder created such a limitation (see, to that effect, judgment of 19 December 2019, Rust-Hackner and Others, C‑355/18 to C‑357/18 and C‑479/18, EU:C:2019:1123, paragraph 82).
4

Under the heading ‘Designation and independence of regulatory authorities’, Article 35 of that directive provides: ‘1. Each Member State shall designate a single national regulatory authority at national level. … 4. Member States shall guarantee the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member States shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and related legislation, the regulatory authority: (a) is legally distinct and functionally independent from any other public or private entity; (b) ensures that its staff and the persons responsible for its management: (i) act independently from any market interest; and (ii) do not seek or take direct instructions from any government or other public or private entity when carrying out the regulatory tasks. This requirement is without prejudice to close cooperation, as appropriate, with other relevant national authorities or to general policy guidelines issued by the government not related to the regulatory powers and duties under Article 37. 5. In order to protect the independence of the regulatory authority, Member States shall in particular ensure that: (a) the regulatory authority can take autonomous decisions, independently from any political body, and has separate annual budget allocations, with autonomy in the implementation of the allocated budget, and adequate human and financial resources to carry out its duties; and (b) the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management are appointed for a fixed term of five up to seven years, renewable once. In regard to point (b) of the first subparagraph, Member States shall ensure an appropriate rotation scheme for the board or the top management. The members of the board or, in the absence of a board, members of the top management may be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or have been guilty of misconduct under national law.’
3

Recitals 2, 3, 8, 9, 11, 19 and 22 of Directive 2011/7 read as follows: ‘(2) Most goods and services are supplied within the internal market by economic operators to other economic operators and to public authorities on a deferred payment basis whereby the supplier gives its client time to pay the invoice, as agreed between parties, as set out in the supplier’s invoice or as laid down by law. (3) Many payments in commercial transactions between economic operators or between economic operators and public authorities are made later than agreed in the contract or laid down in the general commercial conditions. Although the goods are delivered or the services performed, many corresponding invoices are paid well after the deadline. Such late payment negatively affects liquidity and complicates the financial management of undertakings. It also affects their competitiveness and profitability when the creditor needs to obtain external financing because of late payment. … … (8) The scope of this Directive should be limited to payments made as remuneration for commercial transactions. This Directive should not regulate transactions with consumers, interest in connection with other payments, for instance payments under the laws on cheques and bills of exchange, or payments made as compensation for damages including payments from insurance companies. Furthermore, Member States should be able to exclude debts that are subject to insolvency proceedings, including proceedings aimed at debt restructuring. (9) This Directive should regulate all commercial transactions irrespective of whether they are carried out between private or public undertakings or between undertakings and public authorities … It should therefore also regulate all commercial transactions between main contractors and their suppliers and subcontractors. … (11) The delivery of goods and the provision of services for remuneration to which this Directive applies should also include the design and execution of public works and building and civil engineering works. … (19) Fair compensation of creditors for the recovery costs incurred due to late payment is necessary to discourage late payment. Recovery costs should also include the recovery of administrative costs and compensation for internal costs incurred due to late payment for which this Directive should determine a fixed minimum sum which may be cumulated with interest for late payment. … … (22) This Directive should not prevent payments by instalments or staggered payments. However, each instalment or payment should be paid on the agreed terms and should be subject to the rules for late payment set out in this Directive.’
5

Article 8 of Directive 2009/18 is worded as follows: ‘1. Member States shall ensure that safety investigations are conducted under the responsibility of an impartial permanent investigative body, endowed with the necessary powers, and by suitably qualified investigators, competent in matters relating to marine casualties and incidents. In order to carry out a safety investigation in an unbiased manner, the investigative body shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it. … 2. The investigative body shall ensure that individual investigators have a working knowledge of, and practical experience in, those subject areas pertaining to their normal investigative duties. Additionally, the investigative body shall ensure ready access to appropriate expertise, as necessary. 3. The activities entrusted to the investigative body may be extended to the gathering and analysis of data relating to maritime safety, in particular for prevention purposes, in so far as these activities do not affect its independence or entail responsibility in regulatory, administrative or standardisation matters. … 5. The investigative body shall be enabled to respond immediately on being notified at any time of a casualty, and to obtain sufficient resources to carry out its functions independently. Its investigators shall be afforded status giving them the necessary guarantees of independence. 6. The investigating body may combine its tasks under this Directive with the work of investigating occurrences other than marine casualties on condition that such investigations do not endanger its independence.’
34

In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) (a) Must Regulation [No 1215/2012] be interpreted as meaning that a matter such as that at issue in the present case, in which an international organisation brings an action to (i) lift an interim garnishee order levied in another Member State by the opposing party, and (ii) prohibit the opposing party from levying, on the same grounds, an interim garnishee order in the future and bases those claims on immunity from execution, must be wholly or partially considered to be a civil or commercial matter as referred to in Article 1(1) of [that regulation]? (b) In answering question 1(a), what significance, if any, should be attached to the fact that the court of a Member State has granted leave to attach for a claim which the opposing party alleges to have against the international organisation, a claim in respect of which substantive proceedings are pending in that Member State, relating to a contractual dispute over the payment for fuels supplied for a peace operation carried out by an international organisation connected to the international organisation concerned? (2) (a) If question 1(a) is answered in the affirmative, must Article 24(5) of Regulation No 1215/2012 be interpreted as meaning that, in a case in which the court of a Member State has granted leave to levy an interim garnishee order and that garnishee order has subsequently been levied in another Member State, the courts of the Member State where the interim garnishee order was levied have exclusive jurisdiction to hear a claim for the lifting of that garnishee order? (b) In answering question 2(a), what significance, if any, should be attached to the fact that the international organisation has based its action to lift the interim garnishee order on immunity from execution? (3) If, in answering the question of whether a civil or commercial matter as referred to in Article 1(1) of Regulation No 1215/2012 is at issue, or alternatively, the question of whether a claim falling within the scope of Article 24(5) of [that regulation] is at issue, significance is attached to the fact that the international organisation has based its claims on immunity from execution, to what extent is the court seised of the matter obliged to assess whether the reliance on immunity from execution is effective, and in that regard does the rule apply that it must assess all the evidence available to it, including, in the present case, the objections raised by the respondent, or any other rule?’
16

Article 5 of that directive, entitled ‘Prohibition of unfair commercial practices’, provides: ‘1. Unfair commercial practices shall be prohibited. 2. A commercial practice shall be unfair if: (a) it is contrary to the requirements of professional diligence, and and (b) it materially distorts or is likely materially to distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers. 3. Commercial practices which are likely materially to distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally. 4. In particular, commercial practices shall be unfair which: (a) are misleading as set out in Articles 6 and 7, or (b) are aggressive as set out in Articles 8 and 9. 5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may be modified only by revision of this directive.’
6

In accordance with Article 1 of OUG No 52/2017: ‘(1) Taxable persons who have paid the special tax for passenger cars and motor vehicles, provided for in Articles 2141 – 2143 of Law No 571/2003 on the Tax Code, as subsequently amended and supplemented, the pollution tax for motor vehicles, laid down by Government Emergency Order No 50/2008 establishing the pollution tax on motor vehicles, approved by Law No 140/2011, the tax on pollutant emissions from motor vehicles, laid down by Law No 9/2012 establishing the tax on pollutant emissions from motor vehicles, as subsequently amended and supplemented, or the environmental stamp duty on motor vehicles, laid down by [OUG] No 9/2013 establishing the environmental stamp duty on motor vehicles, approved, amended and supplemented by Law No 37/2014, as subsequently amended and supplemented, and who have not been reimbursed prior to the entry into force of this Emergency Order may request reimbursement, together with the interest due for the period between the date of levying and the date of reimbursement, by making an application to the competent central tax authority. The rate of interest shall be that laid down in Article 174(5) of Law No 207/2015 on the Tax Procedure Code, as subsequently amended and supplemented. (2) The right of taxable persons provided for in paragraph 1 to apply for reimbursement shall arise on the date of entry into force of this Emergency Order, irrespective of the date on which the tax was levied, and by way of derogation from the provisions of Article 219 of Law No 207/2015 [on the Tax Procedure Code], as subsequently amended and supplemented, applications for reimbursement shall be lodged no later than 31 August 2018, failing which they shall be time-barred. …’
43

In that regard, it must be noted that, although the goods used for the provision of the services at issue in the main proceedings, namely transport vehicles, are shown in dotted lines in the applications for registration, for the purpose of indicating both the places where the marks applied for are intended to be affixed and the outlines of those marks, the signs in respect of which registration as trade marks is sought are, even so, not indissociable from the shape or packaging of those goods and nor is their purpose to represent the physical space in which the services are provided. Indeed, those signs consist of colour compositions which are systematically arranged and spatially limited. Those applications for registration thus relate to clearly defined graphic elements which, unlike the signs referred to in the case-law cited in paragraphs 40 and 41 of this judgment, are not intended to represent goods or an area for the provision of services by the mere reproduction of the lines and the contours thereof.
27

In so far as the national court raises the question of the compatibility with EU law of a provision of national criminal law, it should be recalled that although, in principle, criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, the Court has consistently held that EU law imposes certain limits on their powers in such matters. National criminal provisions may not discriminate against persons to whom EU law gives the right to equal treatment or restrict the fundamental freedoms guaranteed by EU law (see, to that effect, judgments of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 19, and of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 57). Where such a provision is incompatible with the principle of equal treatment or with one of the fundamental freedoms guaranteed by EU law, it will be for the national court, which is called upon, within the exercise of its jurisdiction, to apply and give full effect to provisions of EU law, to disapply that provision (see, to that effect, judgment of 28 April 2011, El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 61 and the case-law cited).
2

Under the heading ‘Financing of universal services’, Article 7 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14), as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3, and corrigendum OJ 2015 L 225, p. 49) (‘the Postal Directive’), provides: ‘1. Member States shall not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. Member States may finance the provision of universal services in accordance with one or more of the means provided for in paragraphs 2, 3 and 4, or in accordance with any other means compatible with the Treaty. 2. Member States may ensure the provision of universal services by procuring such services in accordance with applicable public procurement rules and regulations, including, as provided for in 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)], competitive dialogue or negotiated procedures with or without publication of a contract notice. 3. Where a Member State determines that the universal service obligations, as provided for in this Directive, entail a net cost, calculated taking into account Annex I, and represent an unfair financial burden on the universal service provider(s), it may introduce: (a) a mechanism to compensate the undertaking(s) concerned from public funds; or (b) a mechanism for the sharing of the net cost of the universal service obligations between providers of services and/or users. 4. Where the net cost is shared in accordance with paragraph 3(b), Member States may establish a compensation fund which may be funded by service providers and/or users’ fees, and is administered for this purpose by a body independent of the beneficiary or beneficiaries. Member States may make the granting of authorisations to service providers under Article 9(2) subject to an obligation to make a financial contribution to that fund or to comply with universal service obligations. The universal service obligations of the universal service provider(s) set out in Article 3 may be financed in this manner. 5. Member States shall ensure that the principles of transparency, non-discrimination and proportionality are respected in establishing the compensation fund and when fixing the level of the financial contributions referred to in paragraphs 3 and 4. Decisions taken in accordance with paragraphs 3 and 4 shall be based on objective and verifiable criteria and be made public.’
18

For its part, the Société Fromagère du Livradois maintains that the PDO protects products from a defined region, which alone can claim the protected designation, but does not prohibit other producers from producing and marketing similar products, provided they do not give the impression that they are covered by the designation in question. It is to be inferred from national law that any use of the sign constituting the PDO to designate similar products which are not entitled to that designation, either because they do not come from the defined area or because they come from it without having the required properties, is prohibited, but that it is not prohibited to market similar products, provided that such marketing is not accompanied by any practice liable to cause confusion, in particular by the misuse or the evocation of that PDO. It also argues that a ‘practice liable to mislead the consumer as to the true origin of the product’, within the meaning of Article 13(1)(d) of Regulation No 510/2006 and the same article of Regulation No 1151/2012, must necessarily focus on the ‘origin’ of the product. It must therefore be a practice which causes the consumer to think that the product he or she is encountering is the PDO product in question. It considers that that ‘practice’ cannot result merely from the appearance of the product in itself, without any indication on its packaging referring to the protected origin.