ddrg/super_eurlex huggingface dataset:
3

Article 11(2) of Annex VIII to the Staff Regulations of European Union officials, established by Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of officials and the conditions of employment of other servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition II, 1968(I), p. 30), as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1) (‘the Staff Regulations’), states: ‘An official who enters the service of the Communities after: — leaving the service of a government administration or of a national or international organisation; or — pursuing an activity in an employed or self-employed capacity; shall be entitled, after establishment but before becoming eligible for payment of a retirement pension within the meaning of Article 77 of the Staff Regulations, to have paid to the Communities the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities. In such case the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the Community pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer. Officials may make use of this arrangement once only for each Member State and pension fund concerned.’
17

The appeal brought before the cour d’appel de Bruxelles (Court of Appeal, Brussels) by the État belge against the judgment given at first instance was dismissed. The cour d’appel de Bruxelles did not call into question the validity of the factual assessment carried out by the État belge, according to which the acquisition price of the shares at issue in the main proceedings was manifestly lower than their real value, which corresponded to the sale price obtained 38 days later. However, that court found that that assessment was irrelevant, since, under the first paragraph of Article 3, Article 4 and the first paragraph of Article 16 of the Royal Decree, GIMLE had an obligation to enter its shares in the accounts not at their real value, but at their historical cost of acquisition. In particular, that court held that Article 16 of the decree obliges undertakings to set aside historical cost of acquisition in favour of real cost only in ‘exceptional’ cases, and that the second paragraph of Article 4 of the decree enables an undertaking to give a true and fair view of its assets by providing, in the notes on its annual accounts, ‘additional information’, without, however, departing from the uniform rule that all assets are to be valued by reference to the historical cost. Consequently, the cour d’appel de Bruxelles upheld the judgment at first instance, finding that the État belge was incorrect to take account of the capital gain of BEF 74776696 for the purpose of calculating the tax due by GIMLE.
27

In those circumstances, the national court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Is the expression “minimum rates of pay” in Article 3(1)(c) of Directive [96/71] to be interpreted as referring to the consideration of the employer for the work done by the worker which should be remunerated according to the law, regulation or administrative provision or the universally applicable collective agreement referred to in the opening sentence of Article 3(1) of the directive only and exclusively by the collective minimum wage (“usual work”), meaning that it is only those employer payments which reward that usual work and which must be available to the worker at the latest on the date when they are payable within the respective wage payment period which can be counted towards the fulfilment of the obligation to pay the minimum rate of pay? 2. Is the expression “minimum rates of pay” in Article 3(1)(c) of Directive [96/71] to be interpreted as precluding national provisions or practices according to which payments by an employer are not to be regarded as part of the minimum wage and therefore cannot be counted towards fulfillment of the entitlement to the minimum wage, if the employer makes those payments on the basis of a collective agreement-based obligation, — and the payments, according to the intention of the parties to the collective agreement and of the legislature, have capital formation objectives for the workers, and to that end, — the monthly payments by the employer to the employee are for long-term purposes such as contributions towards savings, the construction or acquisition of a residence or capital life insurance, and — are subsidised by allowances and tax breaks from the State, and — the worker is entitled to access those contributions only after several years have elapsed, and — the level of the contributions in the form of a fixed monthly sum is dependent only on the agreed working time and not on the salary paid (“capital formation contributions”)?’
Article 3(1) of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, Article 1(1) and (2) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended by Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005, and Article 1(1) of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles must be interpreted as meaning that compulsory insurance against civil liability in respect of the use of motor vehicles must cover compensation for non‑material damage suffered by the next of kin of the deceased victims of a road traffic accident, in so far as such compensation is provided for as part of the civil liability of the insured party under the national law applicable in the dispute in the main proceedings.
8

Article 4 of that directive provides: ‘1. Member States shall have the option to limit the liability of the guarantee institutions referred to in Article 3. 2. When Member States exercise the option referred to in paragraph 1, they shall specify the length of the period for which outstanding claims are to be met by the guarantee institution. However, this may not be shorter than a period covering pay for the last three months of the employment relationship prior to and/or after the date referred to in Article 3. Member States may include this minimum period of three months in a reference period with a duration of not less than six months. Member States having a reference period of not less than 18 months may limit the period for which outstanding claims are met by the guarantee institution to eight weeks. In this case, those periods which are most favourable to the employee are used for the calculation of the minimum period. 3. Furthermore, Member States may set ceilings on the payments made by the guarantee institution. These ceilings must not fall below a level which is socially compatible with the social objective of this Directive. When Member States exercise this option, they shall inform the Commission of the methods used to set the ceiling.’
5

Article 52(1)(14) and (16) of the Spanish Law on Civil Procedure (Ley de Enjunciamiento Civil) (‘the LEC’), which comes under section 2 thereof, concerning territorial jurisdiction of Chapter II, entitled ‘Rules on jurisdiction’, of Title II concerning jurisdiction under the LEC, provides: ‘1. The rules on jurisdiction established in the preceding articles shall not apply and competence shall be determined in accordance with the provisions set out in this article in the following cases: ... 14. In proceedings in which actions are brought for an order not to incorporate, or to have declared the nullity of, general contractual conditions, the court having jurisdiction shall be the court where the claimant has its address. And, in relation to the same subject matter, when actions for a declaration, an injunction or withdrawal are brought, the court having jurisdiction shall be the court where the defendant is established and, in the absence of any establishment, that of its address, and if the defendant has no address in Spanish territory, that of the place where the contract was concluded. ... 16. In injunction proceedings brought to defend the collective and “diffuse” (general) interests of consumers and users, the competent court shall be the court where the defendant is established and, in the absence of any establishment, that of its address and, if the defendant has no address in Spanish territory, that of the place of the address of the claimant.’
4

Recitals 9 and 47 to 50 in the preamble to Directive 2001/29 state: ‘(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. … ... (47) Technological development will allow rightholders to make use of technological measures designed to prevent or restrict acts not authorised by the rightholders of any copyright, rights related to copyright or the sui generis right in databases. The danger, however, exists that illegal activities might be carried out in order to enable or facilitate the circumvention of the technical protection provided by these measures. In order to avoid fragmented legal approaches that could potentially hinder the functioning of the internal market, there is a need to provide for harmonised legal protection against circumvention of effective technological measures and against provision of devices and products or services to this effect. (48) Such legal protection should be provided in respect of technological measures that effectively restrict acts not authorised by the rightholders of any copyright, rights related to copyright or the sui generis right in databases without, however, preventing the normal operation of electronic equipment and its technological development. Such legal protection implies no obligation to design devices, products, components or services to correspond to technological measures, so long as such device, product, component or service does not otherwise fall under the prohibition of Article 6. Such legal protection should respect proportionality and should not prohibit those devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection. In particular, this protection should not hinder research into cryptography. (49) The legal protection of technological measures is without prejudice to the application of any national provisions which may prohibit the private possession of devices, products or components for the circumvention of technological measures. (50) Such a harmonised legal protection does not affect the specific provisions on protection provided for by [Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ 2009 L 111, p.16)]. In particular, it should not apply to the protection of technological measures used in connection with computer programs, which is exclusively addressed in that Directive. It should neither inhibit nor prevent the development or use of any means of circumventing a technological measure that is necessary to enable acts to be undertaken in accordance with the terms of Article 5(3) or Article 6 of Directive [2009/24]. Articles 5 and 6 of that Directive exclusively determine exceptions to the exclusive rights applicable to computer programs.’
43

In that context, it is necessary to take into account the fact that road maintenance activities include a wide variety of different works, such as, in particular, the repair of damage to the roads, de-icing or clearing snow. Characteristics of those works are, inter alia, planning difficulties, which vary as a function of the events behind the damage caused to the public roads, and the need for them to be carried out rapidly. In addition, the frequency of those works depends largely on the meteorological conditions and the distances to be travelled by the vehicles used between the different road maintenance works sites, which factors can vary in different regions of the European Union. That is the case for the greater distances between the built-up areas in the Member States which have a low population density such as, in particular, the Member States in the north of the European Union, as opposed to certain regions in the Member States of central Europe.
14

Article 108 of Law 24/1988 on the Stock Market (Ley 24/1988 del Mercado de Valores) of 28 July 1988 (BOE No 181 of 29 July 1988, p. 23405), as amended by Law 18/1991 on income tax payable by natural persons (Ley 18/1991 del Impuesto sobre la Renta de las Personas Físicas) of 6 June 1991 (BOE No 136 of 7 June 1991, p. 18665), (‘the Law on the Stock Market’) provides: ‘1. The transfer of securities, whether or not negotiable on an official secondary market, shall be exempt from tax on capital transfers and documented legal acts and from [VAT]. 2. By derogation from the provisions of paragraph 1, the following shall, as “transfer of assets for consideration”, be subject to tax on capital transfers and documented legal acts: 1. Transfers made on the secondary market, and also acquisitions made on the primary market as a consequence of the exercise of preferential subscription rights and of the right to convert debentures into shares, of securities which represent a portion of the share capital or assets of companies, funds, associations or other entities at least 50% of the assets of which comprise immovable property situated within the national territory, provided that, as a result of such a transfer or acquisition, the purchaser obtains full ownership of those assets or, at least, is in a position which enables it to exercise control over those entities. Control over commercial companies will be deemed to have been obtained when a shareholding of more than 50% has been acquired, whether directly or indirectly. For the purposes of calculating 50% of the assets comprising immovable property, account shall not be taken of those immovable assets, except building plots and sites, which form part of the operating assets of companies whose sole corporate object consists in the exercise of business activities involving property construction or development. 2. Transfers of company shares or shareholdings, received in consideration for immovable assets made on the occasion of the incorporation of companies or the increase in their capital, on condition that between the date of contribution and the date of transfer a period of less than one year has elapsed. In the above cases, the rate for transfers of immovable assets for consideration shall be applied to the value of the aforementioned assets calculated in accordance with the rules contained in the current regulations governing the tax on capital transfers and documented legal acts.’
8

Article 62 UNCLOS, entitled ‘Utilisation of living resources’, provides in paragraphs 1 to 4: ‘1. The coastal State shall promote the objective of optimum utilisation of the living resources in the exclusive economic zone without prejudice to Article 61. 2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of Articles 69 and 70, especially in relation to the developing States mentioned therein. 3. In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of Articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimise economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. 4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention …’
The term ‘sea’ referred to by Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) is not limited to territorial sea within the meaning of the United Nations Convention on the Law of the Sea of 10 December 1982 (Montego Bay Convention), but also covers internal maritime waters which are on the landward side of the baseline of the territorial sea.

A maritime transport service consisting of a cruise which starts and ends, with the same passengers, in the same port of the Member State in which it takes place, is covered by the term ‘maritime cabotage’ within the meaning of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage).

Since Regulation No 3577/92 concerns ‘maritime cabotage’ alone, only cruises covered by that concept fall within the ambit of that regulation.

That concept being defined, in Article 1(1) and Article 2(1) of Regulation No 3577/92, by the phrase ‘maritime transport services within a Member State’, all cruise services normally provided for remuneration in the maritime waters of a Member State fall within the ambit of that regulation. When such a cruise starts and ends, with the same passengers, in the same port, the fact that the departure and arrival ports are one and the same and that the passengers are the same throughout the itinerary cannot render Regulation No 3577/92 inapplicable. It is true that the transport services listed in Article 2(1)(a) to (c) of Regulation No 3577/92 are described as having different departure and arrival ports. However, that list, which is introduced by the term ‘in particular’, is not exhaustive and cannot have the effect of excluding from the scope of that regulation transport services having all the essential characteristics of maritime cabotage contained in the above-mentioned phrase ‘maritime transport services within a Member State’.

(see paras 25-29, operative part)
As regards the amount and the form of the penalty payment to be imposed on a Member State, it is for the Court, in the exercise of its discretion, to set the penalty payment in such a way that it is both appropriate to the circumstances and proportionate to the infringement established and the ability of the Member State concerned to pay.

The Commission’s suggestions concerning the penalty payment cannot bind the Court and constitute merely a useful point of reference. Similarly, guidelines such as those set out in the communications of the Commission are not binding on the Court but contribute to ensuring that the Commission’s own actions are transparent, foreseeable and consistent with legal certainty when that institution makes suggestions to the Court. In proceedings under Article 260(2) TFEU relating to a failure to fulfil obligations on the part of a Member State that has persisted notwithstanding the fact that that same failure to fulfil obligations has already been established in a first judgment delivered under Article 226 EC or Article 258 TFEU, the Court must remain free to set the penalty payment to be imposed in an amount and in a form that the Court considers appropriate for the purposes of inducing that Member State to bring to an end its failure to comply with the obligations arising under that first judgment of the Court. Such a penalty must be decided upon according to the degree of pressure needed in order to persuade the defaulting Member State to comply with a judgment establishing a failure to fulfil obligations and to alter its conduct in order to bring to an end the infringement complained of.

Accordingly, in the assessment carried out by the Court, the criteria which must be taken into account in order to ensure that penalty payments have coercive force and that EU law is applied uniformly and effectively are, in principle, the duration of the infringement, assessed by reference to the time when the Court assesses the facts, not the time when the case is brought before it by the Commission, its degree of seriousness and the ability of the Member State concerned to pay, taking account of recent trends in its gross domestic product at the time of the Court’s examination of the facts. In applying those criteria, the Court is required to have regard, in particular, to the effects on public and private interests of the failure to comply and to the urgent need for the Member State concerned to be induced to fulfil its obligations.

(see paras 95-97, 102, 104)