ddrg/super_eurlex huggingface dataset:
17

In those circumstances, the Tribunale amministrativo regionale per la Lombardia decided to stay proceedings and to refer the following two questions to the Court of Justice for a preliminary ruling, which are identical for the three actions that constitute the main proceedings: ‘(1) Does the correct application of Articles 15 and 16 of [the Services Directive] preclude the provisions of national law laid down in Article 32(7a) of Decree-Law No 185 of 29 November 2008, added by Converting Law No 2 of 28 January 2009 and subsequently amended by Law No 14 of 27 February 2009, under which: — the award of services relating to the assessment, verification and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid-up share capital in the sum of EUR 10 million is to be null and void; — persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment, verification and collection of taxes and other revenue of the provinces and municipalities are required to bring their share capital up to the minimum figure in question, pursuant to Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended; — it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment, verification and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and companies in which all or a majority of the share capital is in public ownership are excluded from those provisions? (2) Does the correct application of Articles 3, 10, 43, 49 and 81 of the Treaty establishing the European Community preclude the provisions of national law laid down in Article 32(7a) of Decree-Law No 185 of 29 November 2008 added by Converting Law No 2 of 28 January 2009 and subsequently amended by Law No 14 of 27 February 2009, under which, — the award of services relating to the assessment, verification and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid-up share capital in the sum of EUR 10 million is to be null and void; — persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment, verification and collection of taxes and other revenue of the provinces and municipalities are required to bring [their] share capital up to the minimum figure in question, pursuant to Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended; — it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment, verification and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and companies in which all or a majority of the share capital is in public ownership are excluded from those provisions?’
6

Article 4 of Law No 13/1998 states: ‘1. The retail trade of manufactured tobacco products in Spain, with the exception of the Canary Islands, shall remain a monopoly owned by the State, operated through the network of tobacco and stamp outlets. 2. The retail selling prices of the various types, brands and forms of tobacco product intended for sale in Spain, with the exception of the Canary Islands, shall be determined by manufacturers or, where applicable, their representatives or agents in the European Union … 3. [Tobacco retailers], who must necessarily be natural persons, having the nationality of any of the States of the European Union, are classified as licensees of the State. … [They] shall not be licence holders of any other outlet or point of sale subject to surcharge, or have any professional or working relationship with any importers, manufacturers or wholesalers on the tobacco market, unless that relationship ends prior to the definitive grant of the outlet licence. 4. An outlet licence shall be granted after a call for tenders ... The licence shall be granted for a period of twenty-five years. ... ... 7. The [tobacco retailer’s] profit margin on the sale of manufactured tobacco products, which must be acquired from an authorised wholesaler, is fixed at 8.5% of the retail sale price, regardless of the product’s price, type, or origin, or the wholesaler who supplied it Nevertheless, for the sale of cigars, the [tobacco retailer] shall, in any event, receive a profit margin of 9%. ...’
16

In those circumstances, the Legfelsőbb Bíróság decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the host Member State pay due regard to Articles [49 TFEU and 54 TFEU] when a company established in another Member State (the Member State of origin) transfers its seat to that host Member State and, at the same time and for this purpose, deletes the entry regarding it in the commercial register in the Member State of origin, and the company’s owners adopt a new instrument of constitution under the laws of the host Member State, and the company applies for registration in the commercial register of the host Member State under the laws of the host Member State? (2) If the answer to the first question is yes, must Articles [49 TFEU and 54 TFEU] be interpreted in such a case as meaning that they preclude legislation or practices of such a (host) Member State which prohibit a company established lawfully in any other Member State (the Member State of origin) from transferring its seat to the host Member State and continuing to operate under the laws of that State? (3) With regard to the response to the second question, is the basis on which the host Member State prohibits the company from registration of any relevance, specifically: — if, in its instrument of constitution adopted in the host Member State, the company designates as its predecessor the company established and deleted from the commercial register in the Member State of origin, and applies for the predecessor to be registered as its own predecessor in the commercial register of the host Member State? — in the event of international conversion within the Community, when deciding on the company’s application for registration, must the host Member State take into consideration the instrument recording the fact of the transfer of company seat in the commercial register of the Member State of origin, and, if so, to what extent? (4) Is the host Member State entitled to decide on the application for company registration lodged in the host Member State by the company carrying out international conversion within the Community in accordance with the rules of company law of the host Member State as they relate to the conversion of domestic companies, and to require the company to fulfil all the conditions (e.g. drawing up lists of assets and liabilities and property inventories) laid down by the company law of the host Member State in respect of domestic conversion, or is the host Member State obliged under Articles [49 TFEU and 54 TFEU] to distinguish international conversion within the Community from domestic conversion and, if so, to what extent?’
13

In those circumstances, the Consiglio di Stato decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Are the circular contested at first instance and the national rules referred to therein compatible with Community law and with the rules specifically referred to? In particular, do the circular and the national rules infringe the principles and rules laid down by Directive 89/106/EEC relating to construction products, which does not in any way make CE marking mandatory, but, on the contrary, provides (at Article 6(1) and (2) [of Directive 89/106]) that Member States “shall not impede the free movement, placing on the market or use in their territory of products which satisfy the provisions” of that directive, and are to ensure that “the use of such products, for the purpose for which they were intended, shall not be impeded by rules or conditions imposed by public bodies or private bodies acting as a public undertaking or acting as a public body on the basis of a monopoly position” and are to allow “products not covered by Article 4(2) [of Directive 89/106] to be placed on the market in their territory if they satisfy national provisions consistent with the [FEU] Treaty until the European technical specifications referred to in Chapters II and III [of that directive] provide otherwise”? 2. Do the contested circular and the national rules referred to therein infringe Articles [34 to 37 TFEU] in particular, which prohibit restrictions on imports and measures having equivalent effect, in so far as making the marketing of a product originating in another Member State of the [European Union] subject, as in the present case, to a technical requirement, namely the affixing of the CE mark – which would be possible and lawful only if there were a corresponding harmonised standard – in fact prevents the import and distribution of the product in question in Italy, in breach of the principles laid down by the provisions of the EC Treaty referred to and Community law, which ensure freedom of competition, requiring [rules] capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individual undertakings? 3. Under Community rules on workable competition in the sector involving the present dispute, ought the national legislature and administrative authorities to have avoided adopting the legislative measures referred to in the [contested] circular and in Legislative Decree No 152/2006? 4. Lastly, is pluralism and competition in the sector in question, which is guaranteed by European law, secured by national rules – such as Legislative Decree No 152/2006 (in particular Article 285 and paragraphs 2.7 and 3.4 of [Part II to Annex IX]) – which introduce and impose the restrictions referred to?’
111

In particular, it emerges from the case-file that: — the CMD liquidation plan, which was approved by an order of the Juzgado de lo Mercantil No 2 of Bilbao of 22 June 2010, provided, in essence, that all of that company’s assets would be sold as a whole to its creditors – primarily its former employees – as partial compensation for their claims, although the liability relating to the unlawful aid in question was not at the time one of the liabilities acknowledged; — shortly before that plan was approved, Euskomenaje, the activities of which are in essence identical to those carried on until then by CMD, had just been specifically created by CMD’s former employees; — the CMD liquidation plan ‘clearly’ pursued ‘the objective of continuing the subsidised activities through a newly created company which would not assume liability for CMD’s debts’, according to a letter sent on 17 February 2011 by the Basque Government to the Chairman of Euskomenaje’s Board of Directors; — Euskomenaje uses Magefesa’s industrial property, including the trade mark Magefesa, which was assigned to it directly, that is to say, without a competitive tendering procedure and for no consideration, as emerges, inter alia, from the letters of 3 December 2010 and 10 March 2011 sent by the Autonomous Community of the Basque Country to the Juzgado de Primera Instancia (Court of First Instance) No 10 of Bilbao; — the opposition of the Autonomous Community of the Basque Country to the abovementioned assignment was unsuccessful; — although, on appeal lodged by the Autonomous Community of the Basque Country after the case had been brought before the Court, the CMD liquidation plain was annulled by order of 16 January 2012 of the Audiencia Provincial of Bizkaia, CMD’s insolvency administrators had in the meantime authorised the provisional transfer of the company’s assets to Euskomenaje until the conclusion of the CMD liquidation procedure, that transfer being effected for no consideration, without advertising, without a transfer of title deeds and in a manner ‘at variance with the elementary principles of managing liquidation proceedings’, as is apparent, inter alia, from the letter referred to in the third indent of this paragraph; — notwithstanding the order of 12 January 2011 deciding that CMD’s activities were to cease and its places of business to be closed, Euskomenaje is still manufacturing domestic articles in CMD’s facilities, making use of its buildings, machines and industrial property, as is apparent from the application submitted by the Autonomous Community of the Basque Country on 3 March 2011 to the Juzgado de lo Mercantil No 2 of Bilbao, specifically requesting that the activities of Euskomenaje which were still taking place in CMD’s facilities be stopped.
13

Article 9 of the same regulation provides: ‘1. When serious congestion and/or environmental problems exist the Member State responsible may, subject to this Article, impose conditions on, limit or refuse the exercise of traffic rights, in particular when other modes of transport can provide satisfactory levels of service. 2. Action taken by a Member State in accordance with paragraph 1 shall: — be non-discriminatory on grounds of nationality or identity of air carriers, — have a limited period of validity, not exceeding three years, after which it shall be reviewed, — not unduly affect the objectives of this Regulation, — not unduly distort competition between air carriers, — not be more restrictive than necessary in order to relieve the problems. 3. When a Member State considers that action under paragraph 1 is necessary it shall, at least three months before the entry into force of the action, inform the other Member States and the Commission, providing adequate justification for the action. The action may be implemented unless within one month or receipt of the information a Member State concerned contests the action or the Commission, in accordance with paragraph 4, takes it up for further examination. 4. At the request of a Member State or on its own initiative the Commission shall examine action referred to in paragraph 1. When the Commission, within one month of having been informed under paragraph 3, takes the action up for examination it shall at the same time indicate whether the action may be implemented, wholly or partially, during the examination taking into account in particular the possibility of irreversible effects. After consulting the Committee referred to in Article 11 the Commission shall, one month after having received all necessary information, decide whether the action is appropriate and in conformity with this Regulation and not in any other way contrary to Community law. The Commission shall communicate its decision to the Council and the Member States. Pending such decision the Commission may decide on interim measures including the suspension, in whole or in part, of the action, taking into account in particular the possibility of irreversible effects. …’
The information that must be provided to the Court of Justice in an order for reference does not serve only to enable the Court to provide answers which will be of use to the national court; it must also enable the Governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice. For those purposes, it is necessary for the national court to define the factual and legislative context of the questions it asks, or, at the very least, to explain the factual circumstances on which those questions are based.

Accordingly, where the information provided by the national court is sufficient to explain the subject-matter of the dispute in the main proceedings and the main issues raised by that dispute for the Union legal order, and also to enable, first, the Member States to submit their observations in accordance with Article 23 of the Statute of the Court and to participate effectively in the proceedings before the Court and, second, the Court to provide an answer which will be of use to the national court, the reference for a preliminary ruling must be regarded as admissible.

(see paras 30-31)
Keywords



Keywords

Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility — Entry into force of the Treaty of Lisbon — New fact warranting the late introduction of a head of claim based on breach of the right to a fair hearing — Excluded (Art. 6(2) TEU; Charter of Fundamental Rights of the European Union, Art. 47; Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court of Justice, Art. 42(2) and 113(2)) (see paras 42, 44, 45)

2. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 70, 71)

3. Competition — Agreements, decisions and concerted practices — An undertaking’s participation in anti-competitive initiatives — Tacit approval without any public distancing of itself by the undertaking enough for it to incur liability (Art. 101(1) TFEU) (see paras 74, 75)
Keywords

Summary



Keywords

1. Social policy — Protection of the safety and health of workers — Organisation of working time — Entitlement to paid annual leave — Principle of European Union social law

(Charter of Fundamental Rights of the European Union, Art. 31(2); European Parliament and Council Directive 2003/88, Art. 7(1))

2. Social policy — Protection of the safety and health of workers — Organisation of working time — Entitlement to paid annual leave — Purpose

(European Parliament and Council Directive 2003/88, Art. 7(1))

3. Social policy — Protection of the safety and health of workers — Organisation of working time — Entitlement to paid annual leave — National provisions under which it is not possible for a worker who becomes unfit for work during a period of paid annual leave to take that leave subsequently

(European Parliament and Council Directive 2003/88, Art. 7(1))

Summary

1. See the text of the judgment.

(see paras 16-18)

2. See the text of the judgment.

(see paras 19-21)

3. Article 7(1) of Directive 2003/88 concerning certain aspects of the organisation of working time must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work.

(see para. 24, operative part)
Keywords

Summary



Keywords

Free movement of capital and liberalisation of payments — Restrictions — Severance funds — National legislation making the investment of their assets in units of investment funds established in another Member State subject to authorisation to market those units within the national territory — Not permissible — Justification — None

(Art. 63(1) TFEU)

Summary

Article 63(1) TFEU must be interpreted as precluding national legislation which does not permit a severance fund, or the undertaking for collective investment created by that severance fund to manage its assets, to invest those assets in units of an investment fund established in another Member State unless that investment fund has been authorised to market its units within the national territory.

The free movement of capital may be limited by national legislation only if this is justified by one of the reasons mentioned in Article 65 TFEU or by overriding reasons in the public interest. The need to guarantee the stability and security of the assets administered by an undertaking for collective investment created by a severance fund, in particular by the adoption of prudential rules, constitutes an imperative reason of public interest which is capable of justifying restrictions on the free movement of capital. However, legislation which requires an investment fund established in another Member State to undergo the procedure for authorisation to market its units within the national territory goes far beyond what is necessary to attain the objective of scrutiny pursued.

(see paras 28, 31, 32, 38, operative part)
Article 58 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded must be interpreted as precluding, in a new Member State, the application to individuals of provisions of Regulation No 1972/2003, on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, which, as at 1 May 2004, had neither been published in the language of the Member State concerned in the Official Journal of the European Union nor reproduced in the national law of that Member State, even though those individuals could have learned of those provisions by other means.

(see para. 47 and operative part)
The sale of the fruits of tangible property, such as the sale of timber from a private forest, must be regarded as ‘exploitation’ of that property within the meaning of the second subparagraph of Article 9(1) of Directive 2006/112 on the common system of value added tax, as amended by Directive 2006/138.

Article 9(1) of Directive 2006/112 on the common system of value added tax, as amended by Directive 2006/138, must be interpreted as meaning that supplies of timber made by a natural person for the purpose of alleviating the consequences of a case of force majeure come within the scope of the exploitation of tangible property, which must be regarded as an ‘economic activity’ within the meaning of that provision, where those supplies are carried out for the purposes of obtaining income therefrom on a continuing basis. It is for the national court to carry out an assessment of all the circumstances of the case in order to determine whether the exploitation of tangible property, such as a forest, is carried out for the purposes of obtaining income therefrom on a continuing basis.

The fact that property is suitable only for economic exploitation will normally be sufficient for a finding that its owner is exploiting it for the purposes of economic activities and, consequently, for the purpose of obtaining income on a continuing basis. On the other hand, if, by reason of its nature, property is capable of being used for both economic and private purposes, all the circumstances in which it is used will have to be examined in order to determine whether it is actually being used for the purpose of obtaining income on a continuing basis. In the latter case, comparing the circumstances in which the person concerned actually uses the property with the circumstances in which the corresponding economic activity is usually carried out may be one way of ascertaining whether the activity concerned is carried on for the purpose of obtaining income on a continuing basis. Thus, where the person concerned takes active steps in forestry management by mobilising resources similar to those deployed by a producer, a trader or a person supplying services within the meaning of the second subparagraph of Article 9(1) of Directive 2006/112, the activity at issue must be regarded as an ‘economic activity’ within the meaning of that provision.

Furthermore, the fact that the supplies of timber at issue were effected with a view to alleviating the consequences of a case of force majeure cannot, in itself, lead to the conclusion that those supplies were made on an occasional basis and not ‘for the purposes of obtaining income therefrom on a continuing basis’ within the terms of Article 9(1) of Directive 2006/112.

(see paras 34-37, 40, operative part 1)