ddrg/super_eurlex huggingface dataset:
16

Article 22 of Directive 2008/50 states: ‘1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline. 2. Where, in a given zone or agglomeration, conformity with the limit values for PM10 as specified in Annex XI cannot be achieved because of site-specific dispersion characteristics, adverse climatic conditions or transboundary contributions, a Member State shall be exempt from the obligation to apply those limit values until 11 June 2011 provided that the conditions laid down in paragraph 1 are fulfilled and that the Member State shows that all appropriate measures have been taken at national, regional and local level to meet the deadlines. … 4. Member States shall notify the Commission where, in their view, paragraphs 1 or 2 are applicable, and shall communicate the air quality plan referred to in paragraph 1 including all relevant information necessary for the Commission to assess whether or not the relevant conditions are satisfied. In its assessment, the Commission shall take into account estimated effects on ambient air quality in the Member States, at present and in the future, of measures that have been taken by the Member States as well as estimated effects on ambient air quality of current Community measures and planned Community measures to be proposed by the Commission. Where the Commission has raised no objections within nine months of receipt of that notification, the relevant conditions for the application of paragraphs 1 or 2 shall be deemed to be satisfied. If objections are raised, the Commission may require Member States to adjust or provide new air quality plans.’
9

Article 15 of that directive provides: ‘1. Member States shall ensure that for the purpose of short news reports, any broadcaster established in the [European] Union has access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted on an exclusive basis by a broadcaster under their jurisdiction. 2. If another broadcaster established in the same Member State as the broadcaster seeking access has acquired exclusive rights to the event of high interest to the public, access shall be sought from that broadcaster. 3. Member States shall ensure that such access is guaranteed by allowing broadcasters to freely choose short extracts from the transmitting broadcaster’s signal with, unless impossible for reasons of practicality, at least the identification of their source. 4. As an alternative to paragraph 3, Member States may establish an equivalent system which achieves access on a fair, reasonable and non-discriminatory basis through other means. 5. Short extracts shall be used solely for general news programmes and may be used in on-demand audiovisual media services only if the same programme is offered on a deferred basis by the same media service provider. 6. Without prejudice to paragraphs 1 to 5, Member States shall ensure, in accordance with their legal systems and practices, that the modalities and conditions regarding the provision of such short extracts are defined, in particular, any compensation arrangements, the maximum length of short extracts and time limits regarding their transmission. Where compensation is provided for, it shall not exceed the additional costs directly incurred in providing access.’
7

Article 46a of Regulation No 1408/71, which concerns the general provisions relating to reduction, suspension or withdrawal applicable to benefits in respect of invalidity, old age or survivors under the legislation of the Member States, provides: ‘1. For the purposes of this Chapter, overlapping of benefits of the same kind shall have the following meaning: all overlapping of benefits in respect of invalidity, old age and survivors calculated or provided on the basis of periods of insurance and/or residence completed by one and the same person. 2. For the purposes of this Chapter, overlapping of benefits of different kinds means all overlapping of benefits that cannot be regarded as being of the same kind within the meaning of paragraph 1. 3. The following rules shall be applicable for the application of provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State in the case of overlapping of a benefit in respect of invalidity, old age or survivors with a benefit of the same kind or a benefit of a different kind or with other income: (a) account shall be taken of the benefits acquired under the legislation of another Member State or of other income acquired in another Member State only where the legislation of the first Member State provides for the taking into account of benefits or income acquired abroad; (b) account shall be taken of the amount of benefits to be granted by another Member State before deductions of taxes, social security contributions and other individual levies or deductions; (c) no account shall be taken of the amount of benefits acquired under the legislation of another Member State which are awarded on the basis of voluntary insurance or continued optional insurance; (d) where provisions on reduction, suspension or withdrawal are applicable under the legislation of only one Member State on account of the fact that the person concerned receives benefits of a similar or different kind payable under the legislation of other Member States or other income acquired within the territory of other Member States, the benefit payable under the legislation of the first Member State may be reduced only within the limit of the amount of the benefits payable under the legislation or the income acquired within the territory of other Member States.’
6

Article 22 of Directive 92/12 is worded as follows: ‘1. In appropriate cases, products subject to excise duty which have been released for consumption may, at the request of a trader in the course of his business, be eligible for reimbursement of excise duty by the tax authorities of the Member State where they were released for consumption when they are not indented for consumption in that Member State. However, Member States may refuse [this] request for reimbursement where it does not satisfy the correctness criteria they lay down. 2. In the application of paragraph 1, the following provisions shall apply: (a) before dispatch of the goods, the consignor must make a request for reimbursement from the competent authorities of his Member State and provide proof that the excise duty has been paid. However, the competent authorities may not refuse reimbursement on the sole grounds of non-presentation of the document prepared by the same authorities certifying that the initial payment had been made; (b) movement of the goods referred to in (a) shall take place in accordance with the provisions of Title III; (c) the consignor shall submit to the competent authorities of his Member State the returned copy of the document referred to in (b) duly annotated by the consignee which must either be accompanied by a document certifying that the excise duty has been secured in the Member State of consumption or have the following details added: — the address of the office concerned of the tax authorities in the Member State of destination, — the date of acceptance of the declaration by this office together with the reference or registration number of that declaration; (d) products subject to excise duty and released for consumption in a Member State and thus bearing a tax marking or an identification mark of that Member State may be eligible for reimbursement of the excise duty due from the tax authorities of the Member States which issued the tax markings or identification marks, provided that the tax authorities of the Member State which issued them has established that such markings or marks have been destroyed. 3. In the cases referred to in Article 7, the Member State of departure is required to reimburse the excise duty paid only where the excise duty was previously paid in the Member State of destination in accordance with the procedure laid down in Article 7(5). However, Member States may refuse this request for reimbursement where it does not satisfy the correctness criteria they lay down. ... 5. The tax authorities of each Member State shall determine the monitoring procedures and methods applying to reimbursement made in their territory. Member States shall ensure that the reimbursement of excise duty does not exceed the sum actually paid.’
18

Hearing the appeal on a point of law brought against that judgment by the Záhony border police authority, the Magyar Köztársaság Legfelsőbb Bírósága (Supreme Court of the Republic of Hungary) decided, on the view that the outcome of the dispute depends on the interpretation to be given to the provisions of Regulation No 1931/2006, to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. With particular regard to Article 2(a) and Article 3(3) of Regulation … No 1931/2006 …, is Article 5 of that regulation, which permits an uninterrupted stay not exceeding three months, to be interpreted as meaning that Regulation No 1931/2006 allows, on the basis of bilateral agreements between Member States and third countries as referred to in Article 13 of that regulation, multiple exits and entries and an uninterrupted stay not exceeding three months, with the result that a border resident in possession of a local border traffic permit may, prior to the expiry of the three-month period allowed for the stay, interrupt the uninterrupted stay and, once he has crossed the border again, be entitled anew to an uninterrupted stay of three months? 2. In the event that the answer to Question 1 is yes, can an exit and entry occurring on the same day or on consecutive days be regarded as an interruption of an uninterrupted stay under Article 5 of Regulation No 1931/2006? 3. In the event that the answer to Question 1 is yes, but the answer to Question 2 is no, what time interval or other examination criterion needs to be taken into consideration to establish an interruption of an uninterrupted stay, for the purposes of applying Article 5 of Regulation No 1931/2006? 4. In the event that the answer to Question 1 is no, can Article 5 of Regulation No 1931/2006, which permits an uninterrupted stay not exceeding three months, be interpreted as meaning that the periods of time covered by multiple exits and entries must be counted together and that, in view of Article 20(1) of the Convention implementing the Schengen Agreement …, or any other rules relating to Schengen law, if the total number of days thus calculated exceeds 93 days (three months), the local border traffic permit does not provide entitlement to any further stay within six months of the date of first entry? 5. In the event that the answer to Question 4 is yes, must multiple entries and exits occurring on the same day, or a single entry and exit on the same day, also be taken into account for the purposes of calculating the total number of days and, if so, using what counting method?’
15

It is against that background that the Oberster Gerichtshof decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling: ‘(1) Can a legislative scheme be regarded as establishing “fair compensation” for the purposes of Article 5(2)(b) of Directive 2001/29, where (a) the persons entitled under Article 2 of Directive 2001/29 have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of the rightholders, (b) this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and (c) the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remuneration? (2) If Question 1 is answered in the negative: (a) Does a scheme establish “fair compensation” for the purposes of Article 5(2)(b) of Directive 2001/29 if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes? (b) If Question 2(a) is answered in the affirmative: Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes? (3) If Question 1 or 2(a) is answered in the affirmative: Does it follow from Article 5 of Directive 2001/29 or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions? (4) If Question 1 or 2(a) is answered in the affirmative: Does Article 5(2)(b) of Directive 2001/29 or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State – possibly on a basis not in conformity with EU law – equitable remuneration for putting the media on the market has already been paid?’
3

Recitals 6 to 8, 11 to 14 and 17 and 18 in the preamble to the Unfair Commercial Practices Directive state as follows: ‘(6) This Directive … approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers’ economic interests … It neither covers nor affects the national laws on unfair commercial practices which harm only competitors’ economic interests or which relate to a transaction between traders; … (7) This Directive addresses commercial practices directly related to influencing consumers’ transactional decisions in relation to products. … (8) This Directive directly protects consumer economic interests from unfair business-to-consumer commercial practices. … … (11) The high level of convergence achieved by the approximation of national provisions through this Directive creates a high common level of consumer protection. This Directive establishes a single general prohibition of those unfair commercial practices distorting consumers’ economic behaviour. … (12) Harmonisation will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating all aspects of unfair commercial practices across the EU. … (13) In order to achieve the Community’s objectives through the removal of internal market barriers, it is necessary to replace Member States’ existing, divergent general clauses and legal principles. The single, common general prohibition established by this Directive therefore covers unfair commercial practices distorting consumers’ economic behaviour. … The general prohibition is elaborated by rules on the two types of commercial practices which are by far the most common, namely misleading commercial practices and aggressive commercial practices. (14) It is desirable that misleading commercial practices cover those practices, including misleading advertising, which by deceiving the consumer prevent him from making an informed and thus efficient choice. … … (17) It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9. … (18) … In line with the principle of proportionality, and to permit the effective application of the protections contained in it, this Directive takes as a benchmark the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice …’
7

Under Article 1 of Regional Law No 12 (‘Rules governing the activity of optician and amendment to Regional Law No 28 of 22 February 1999’) (legge regionale n. 12 ‘Disciplina dell’esercizio dell’attività di ottico e modifica alla legge regionale 22 febbraio 1999, n. 28’) of 9 July 2004 (Gazzetta ufficiale della Regione Siciliana No 30 of 16 July 2004; ‘Regional Law No 12/2004’): ‘1. For the purposes of the grant of authorisation by the relevant municipal authority to exercise the activity of optician, in addition to entry in the appropriate special register provided for under Article 71 of Regional Law No 25 of 1 September 1993, account shall be taken of the ratio of inhabitants to opticians’ shops, in order to secure a rational distribution of supply throughout the territory. That ratio shall be established on the basis of one optician’s shop per 8000 residents. The distance between one optician’s shop and another may be no less than 300 metres. The above limits shall not apply to premises which transfer from rented to owner-occupied premises or which are compelled to transfer as a result of eviction or other reasons of force majeure. Authorisations granted before the entry into force of this law shall not be affected. 2. Where the existence of territorial needs has been substantiated, the competent municipal authority shall, in derogation from paragraph 1, issue the relevant authorisation or transfer an existing authorisation, after obtaining the mandatory opinion of the provincial committee of the Chamber of Commerce, referred to in Article 8 of the regulation implementing Article 71 of Regional Law No 25 of 1 September 1993, enacted by Presidential Decree No 64 of 1 June 1995. 3. In municipalities in which the number of inhabitants does not exceed 8000, the competent municipal authority may, without obtaining the opinion of the committee referred to in paragraph 2, grant a maximum of two authorisations. Applications processed prior to the entry into force of this law shall not be affected.’
Article 13(3) of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) obliges Member States to establish a means of obtaining redress only against decisions to refuse entry and not, in that respect, against infringements allegedly committed by border guards in the procedure leading to the adoption of a decision.

However, if the national court considers, in the light of the facts of the case before it, that the situation of the claimant is governed by EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights, it is for that court to ascertain whether a refusal to grant him the right to bring his claims before a court infringes the rights recognised in Article 47 of the Charter. Border guards performing their duties, within the meaning of Article 6 of that regulation, are required, inter alia, to fully respect human dignity. It is for Member States to provide in their domestic legal system for the appropriate legal remedies to ensure, in compliance with Article 47 of the Charter, the protection of persons claiming the rights derived from Article 6 of Regulation No 562/2006. On the other hand, if that court takes the view that that situation is not governed by EU law, it must examine it in the light of national law, taking into account also the European Convention for the Protection of Human Rights, and to which all the Member States are party.

(see paras 39-42, operative part)
Keywords

Summary



Keywords

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Question raised concerning a dispute confined within a single Member State — Jurisdiction in the light of the possible applicability of the rule of EU law to that dispute as a result of a prohibition of discrimination laid down by national law

(Art. 267 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Architects — Recognition of diplomas and other evidence of formal qualifications — Exercise of operations relating to buildings of artistic interest — Legislation of the host State imposing on holders of diplomas awarded in another State, allowing the pursuit of activities as an architect and referred to in Article 11 of Directive 85/384, specific examination of their professional suitability in the field of cultural assets — Inadmissibility

(Council Directive 85/384, Arts 10 and 11)

Summary

1. See the text of the decision.

(see paras 34, 35)

2. Articles 10 and 11 of Directive 85/384 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services must be interpreted as precluding a national provision in accordance with which persons holding a qualification issued by a Member State other than the host Member State enabling the holder to take up activities in the field of architecture and expressly referred to in Article 11 thereof, may exercise, in that latter Member State, activities relating to buildings of artistic interest only in so far as they show, where necessary by way of a specific examination of their professional suitability, that they have special qualifications in the field of cultural assets.

(see para. 52, operative part)
Article 49 TFEU must be interpreted as not precluding national legislation which excludes the application of the principle of the joint and several liability of parent companies vis-à-vis the creditors of their subsidiaries to parent companies having their seat in the territory of another Member State.

(see para. 39, operative part)