ddrg/super_eurlex huggingface dataset:
Case C-283/01





Shield Mark BV

v

Joost Kist h.o.d.n. Memex





(Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))

«(Trade marks – Approximation of laws – Directive 89/104/EEC – Article 2 – Signs of which a trade mark may consist – Signs capable of being represented graphically – Sound signs – Musical notation – Written description – Onomatopoeia)»

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 3 April 2003

Judgment of the Court (Sixth Chamber), 27 November 2003

Summary of the Judgment

1.. Approximation of laws – Trade marks – Directive 89/104 – Signs of which a trade mark may consist – Sound signs – Obligation to regard them as capable of being a trade mark – Conditions

(Council Directive 89/104, Art. 2)

2.. Approximation of laws – Trade marks – Directive 89/104 – Signs of which a trade mark may consist – Signs not capable of being perceived visually – Inclusion – Condition – Signs capable of being represented graphically – Sound signs

(Council Directive 89/104, Art. 2)

1.

2.
Case C-314/01

Siemens AG Österreich and ARGE Telekom & Partner

v

Hauptverband der österreichischen Sozialversicherungsträger

(Reference for a preliminary ruling from the Bundesvergabeamt (Austria))

(Public contracts – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Effects of a decision by the body responsible for review procedures annulling the decision by the contracting authority not to revoke the procedure by which a contract was awarded – Restriction on the use of subcontracting)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits – General or hypothetical questions – Determination by the Court as to whether it has jurisdiction

(Art. 234 EC)

2. Approximation of laws – Review procedures concerning the award of public supply and public works contracts – Directive 89/665 – Obligation on Member States to provide for review procedures – Clause in an invitation to tender incompatible with Community rules – Obligation to make it possible to rely on that incompatibility in a review procedure

(Council Directive 89/665, Arts 1(1) and 2(7))

1. The procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts. In the context of that cooperation, the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, is best placed to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.

The fact none the less remains that it is for the Court, if need be, to examine the circumstances in which the case was referred to it by the national court or tribunal, in order to assess whether it has jurisdiction and in particular to determine whether the interpretation of Community law which is requested bears any relation to the actual nature and subject-matter of the main proceedings, in order that the Court will not be required to give opinions on general or hypothetical questions. If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment.

(see paras 33-35)

2. Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.

(see para. 50, operative part)
JUDGMENT OF THE COURT (Second Chamber)

12 February 2004

((Community Customs Code – Customs debt on import – Removal of goods from customs supervision))

and

THE COURT (Second Chamber),,

after considering the written observations submitted on behalf of:

─

─

─

having regard to the Report for the Hearing,

after hearing the oral observations of Hamann International GmbH Spedition + Logistik, represented by M. Zitzmann, of the Hauptzollamt Hamburg-Stadt, represented by T. Cirener, acting as Agent, and of the Commission, represented by J.-C. Schieferer, at the hearing on 5 February 2003,

after hearing the Opinion of the Advocate General at the sitting on 12 June 2003,
Case C-476/01

Criminal proceedings

against

Felix Kapper

(Reference for a preliminary ruling from the Amtsgericht Frankenthal)

(Directive 91/439/EEC – Mutual recognition of driving licences – Residence requirement – Article 8(4) – Effects of withdrawal or cancellation of a previous driving licence – Recognition of a new driving licence issued by another Member State)

Summary of the Judgment

1. Freedom of movement for persons – Freedom of establishment – Driving licences – Directive 91/439 – Mutual recognition of driving licences – Driving licence issued without the residence requirement being complied with – Exclusive competence of the State which issues a licence to adopt appropriate measures

(Council Directive 91/439, Arts 1(2), 7(1)(b) and 9)

2. Freedom of movement for persons – Freedom of establishment – Driving licences – Directive 91/439 – Mutual recognition of driving licences – Refusal of a Member State to recognise the validity of a driving licence issued by another Member State

(Council Directive 91/439, Arts 1(2) and 8(4))

1. The principle of mutual recognition of driving licences introduced by Directive 91/439 means that when a host Member State is carrying out a traffic check within its territory, it is precluded from refusing to recognise a driving licence issued by another Member State to the driver of a vehicle on the ground that, according to the information available to the first Member State, the holder of the licence in question had, at the date of its issue, established his normal residence in that Member State and not in the issuing Member State.

Given that Directive 91/439 confers exclusive competence on the Member State which issues a licence to ensure that driving licences are issued in compliance with the residence requirement set out in Articles 7(1)(b) and 9 of that directive, it is for that Member State alone to take appropriate measures in relation to driving licences held by persons who are subsequently shown to have failed to satisfy that requirement. Where a host Member State has good reason to doubt the validity of one or more licences issued by another Member State, it must so inform the latter under the rules relating to mutual assistance and the exchange of information contained in Article 12(3) of that directive.

(see paras 47-48, operative part 1)

2. The provisions of Articles 1(2) and 8(4) of Directive 91/439 on driving licences, taken together, must be interpreted as meaning that they preclude a Member State from refusing to recognise the validity of a driving licence issued by another Member State on the ground that its holder has, in the first Member State, been subject to a measure withdrawing or cancelling the driving licence issued by that Member State, where a temporary ban on obtaining a new licence, with which that measure is coupled, has expired before the date of issue of the licence issued by the other Member State.

(see para. 78, operative part 2)
Keywords

Summary



Keywords

Common Customs Tariff — Relief from import duties — Procedure for returned goods in the customs territory of the Community — Importation of compensating products qualifying for application of that procedure — Importer unable to provide all the information necessary for calculating the duty legally owed — Customs authorities required to use the administrative cooperation procedure to obtain the relevant information — (Council Regulation No 2913/92, Arts 15 and 187; Commission Regulation No 2454/93, Arts 611(2)(b), 613 and 848)

Summary

The first paragraph of Article 187 of Regulation No 2913/92 establishing the Community Customs Code allows the reimportation, with relief from import duties, of compensating products originally exported or re-exported subsequent to an inward processing procedure.

The second paragraph of that provision, according to which "[t]he amount of import duty legally owed shall be determined on the basis of the rules applicable under the inward processing procedure" , must be interpreted as meaning that, where an importer has provided proof that the imported goods are compensating products qualifying for application of the procedure for returned goods under Article 848 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, but is unable to provide all the information necessary for calculating the duty legally owed, the administrative cooperation procedure provided for in Articles 611(2)(b) and 613 of Regulation No 2454/93 must be used by the customs authorities responsible for accepting the declaration. Those authorities must therefore ask the supervising customs office, using the INF 1 sheet, to communicate to them the amount of duty legally owed.

Article 15 of the Customs Code, relating to professional secrecy, does not preclude use of that procedure.

see paras 35-36, operative part
Keywords

Summary



Keywords

Customs union — Incurrence and recovery of customs debt in the event of breaches of customs rules — Charging of interest on arrears — Whether permissible — Criteria — (Council Regulation No 2913/92, Arts 202 to 205, 210, 211 and 220; Commission Regulation No 2454/93)

Summary

Regulation No 2913/92 establishing the Community Customs Code and Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 must be interpreted as not precluding legislation which provides for an increase in duty in the event of the incurrence of a customs debt under Articles 202 to 205 or 210 or 211 of the Customs Code or in the event of subsequent recovery under Article 220 of the Code, which all concern situations involving breach by the trader concerned of the Community customs legislation corresponding to the amount which would have been incurred as interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts or, in the case of subsequent recovery under Article 220 of the Code, between the date when the customs debt originally entered in the accounts was due and the subsequent entry in the accounts of that debt, provided that the rate of interest is determined under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity and which make the penalty effective, proportionate and dissuasive. It is for the national court to determine whether the rate of increase at issue in the main proceedings is consistent with those principles.

see paras 19, 23, operative part
Keywords

Summary



Keywords

Acts of the institutions — Directives — Implementation by the Member States — Transposition of a directive into national law without legislative action — Conditions — Existence of a general legal context ensuring full implementation of the directive — (Art. 249, third para., EC; Directive 98/84 of the European Parliament and of the Council)

Summary

Transposing a directive into national law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal provision and the general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner. National legislation which does not prohibit all the infringing activities referred to in Directive 98/84 on the legal protection of services based on, or consisting of, conditional access does not meet that requirement.

see paras 26, 28
Keywords

Summary



Keywords

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Reverse charge procedure – Taxable person liable for value added tax as the person to whom goods or services provided – Right to deduct – Conditions – Holding of an invoice – No such condition

(Council Directive 77/388, Arts 18(1)(d), and 22(3))

Summary

Where the reverse charge procedure applies, a taxable person who is liable, as the recipient of services, for the value added tax relating thereto in accordance with Article 21(1) of the Sixth Directive 77/388, as amended by Directives 91/680 and 92/111, is not obliged to be in possession of an invoice drawn up in accordance with Article 22(3) of the Sixth Directive in order to be able to exercise his right to deduct.

Concerning the arrangements for exercising the right to deduct in cases where the reverse charge procedure applies, the only applicable provision is Article 18(1)(d) of the directive, whereby a taxable person who is liable as the recipient of services for the value added tax relating thereto has only to fulfil the formalities laid down by the Member State concerned. Whilst it is true, in that respect, that Member States must exercise the power to establish those formalities in conformity with one of the aims pursued by the directive, which is to ensure the collection of value added tax and its verification by the tax administration, and true also that an invoice has an important documentary function because it may contain verifiable data, that power may be exercised only in so far as, by the number or the technical nature of such formalities, their imposition does not make it practically impossible or excessively difficult to exercise the right to deduct.

For the tax administration, which has the information necessary to establish that the taxable person is, as the recipient of the supply in question, liable to the tax, to require as an additional condition for the right to deduct that that person be in possession of an invoice drawn up in conformity with Article 22(3) of the directive would result in a taxable person being, on the one hand, liable as the recipient of services for the value added tax in question, but, on the other hand, risking not being able to deduct that tax.

(see paras 47, 49, 51-53, operative part)
Keywords

Summary



Keywords

1. Preliminary rulings – Jurisdiction of the Court – Interpretation of Article 28 EC requested in relation to facts confined to national territory – Not inadmissible – Conditions – Individual case

(Arts 28 EC and 234 EC)

2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation prohibiting references in advertisements to the commercial origin of goods from an insolvent estate when they no longer constitute part of that estate – Measure regulating selling arrangements in a non-discriminatory manner – Measure not caught by the prohibition laid down in Article 28 EC – No breach of the fundamental right to freedom of expression – Pursuance of legitimate goals of consumer protection and fair trading

(Art. 28 EC; Council Directive 84/450, Art. 7)

Summary

1. A reference for a preliminary ruling relating to the interpretation of Article 28 EC is not inadmissible simply because all the facts of the specific case before the national court are confined to a single Member State, if it is not obvious that the interpretation requested is not necessary for the national court. Such a reply might help it to determine whether national legislation such as a prohibition on references in advertisements to the commercial origin of goods from an insolvent estate when they no longer constitute part of that estate is likely to constitute a potential impediment to intra-Community trade falling within the scope of application of Article 28 EC.

(see paras 19, 21)

2. Article 28 EC does not preclude national legislation which, irrespective of the truthfulness of the information, prohibits any reference to the fact that goods come from an insolvent estate, where, in public announcements or notices intended for a larger circle of persons, notice is given of the sale of goods which originate from, but no longer constitute part of, the insolvent estate.

Such a restriction on advertisements, which is likely to come within the scope of application of Directive 84/450

concerning misleading advertising, which allows the Member States to ensure more extensive consumer protection than that provided for by the directive provided that that power is exercised in a way that is consistent with the fundamental principle of free movement of goods, must be viewed as relating to selling arrangements and is not caught by the prohibition laid down in Article 28 EC because it applies without distinction to all the operators concerned and affects the marketing of domestic and imported products in the same manner.

Nor does that restriction infringe the fundamental right of freedom of expression, recognised by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because it is reasonable and proportionate, in the light of the legitimate goals pursued by that provision, namely consumer protection and fair trading.

(see paras 31, 33-34, 39, 41-43, 50, 52-53, operative part)
Keywords

Summary



Keywords

Officials – Secondment in the interests of the service – Secondment to a political group of the Parliament – Decision to terminate the secondment – Discretion of the political group and circumscribed power of the appointing authority – No overriding need to hear the party concerned before the decision adopted

(Staff Regulations, Art. 37, point (a), first para., second indent, and Art. 90)

Summary

Under the second indent of the first paragraph (a) of Article 37, an official may, in the interests of the service, be seconded temporarily to a post in one of the political groups in the Parliament. Although it is for the appointing authority to take the decision to second an official to a political group and to terminate that secondment, it is bound to respect the decision made by the political group which requests such a measure. The political group concerned has discretion to choose the staff it wishes to engage to serve temporarily in posts in that group as well as to terminate the latter’s engagement. That discretion is justified, in particular, by the specific nature of the functions carried out by a political group and by the need to maintain, in such a political environment, relations of mutual confidence between the officials on secondment and the group. By agreeing to carry out such temporary functions in a political group, the officials concerned must be aware of the fact that the group may wish to terminate their engagement before the end of the period initially envisaged for the secondment.

Where there is no longer any mutual confidence, for whatever reason, the official in question is no longer in a position to carry out his functions. In such circumstances sound administration therefore requires that the institution concerned take, with respect to that official, as soon as possible, a decision to terminate the secondment. Such a decision constitutes, from a procedural point of view, an act adversely affecting the official who, therefore, has a personal interest in seeking its annulment. It cannot be concluded automatically, however, without regard to the nature of the procedure brought against the official that the appointing authority was under an obligation to give the official concerned a proper hearing before adopting such a decision.

Where the appointing authority receives a formal request from a political group of the Parliament for the secondment of an official to that group to be terminated, it is generally obliged to take the appropriate steps as soon as possible after checking that the request has come from the person or department competent to submit it.

(see paras 48-52, 56-57, 59-60)
Keywords

Summary



Keywords

Tax provisions – Harmonisation of laws – Tax exemptions on permanent imports of the personal property of individuals – Directive 83/183 – Transfer of residence of the owner of a vehicle from one Member State to another – Tax levied by the Member State of destination on the registration or bringing into use of the vehicle – Whether permissible – Limits

(Art. 18 EC; Council Directive 83/183, Art. 1)

Summary

Article 1 of Directive 83/183 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals must be interpreted as not precluding, in connection with a transfer of residence of the owner of a vehicle from one Member State to another, a tax from being charged before the registration or bringing into use of the vehicle in the Member State to which residence is transferred. Such a tax cannot be regarded as a tax connected with importation falling within the scope of the exemption laid down in that provision.

However, having regard to the requirements deriving from Article 18 EC, it is for the national courts to ascertain whether the application of national law is capable of ensuring that, as regards that tax, that owner is not placed in a less favourable situation than that of citizens who have been permanently resident in the Member State in question and, if necessary, whether such a difference of treatment is justified by objective considerations independent of the residence of the persons concerned and proportionate to the legitimate aim pursued by national law.

(see paras 26, 36, operative part)
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Summary



Keywords

Tax provisions – Harmonisation of legislation – Structures of excise duties on mineral oils – Directive 92/81 – Mineral oils, marked or not, released for consumption in a Member State and contained in the standard tank of commercial motor vehicles, including agricultural machinery – Use as fuel for propulsion or other purposes, by those vehicles – Liable to excise duties in another Member State – Prohibition – Possibility for individuals to rely on Article 8a of Directive 92/81 before the national court

(Council Directive 92/81, Art. 8a(1))

Summary

Article 8a(1) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils is to be interpreted as prohibiting Member States from subjecting to excise duty mineral oil, whether marked or unmarked, contained in the standard tank of a commercial motor vehicle, including agricultural machinery, and used as fuel not only to move the vehicle but also in order to utilise it for other purposes such as agricultural work, when that mineral oil has been lawfully released for consumption in another Member State.

It is apparent from the wording of that article, which provides that mineral oils released for consumption in a Member State, contained in the standard tanks of commercial motor vehicles and intended to be used as fuel by those same vehicles, are not to be subject to excise duty in another Member State, considered in the light of its objectives, namely to protect freedom of movement for individuals and goods and to prevent double taxation, that that article must be interpreted broadly. Furthermore, a Member State cannot, on the basis of its own rules, prohibit the use of mineral oil marked as fuel in the standard tank of a commercial motor vehicle from another Member State which allows such a practice.

That prohibition is, moreover, sufficiently clear, precise and unconditional to be relied upon by individuals in proceedings before national courts in order to contest national rules that are incompatible with it.

(see paras 41, 54-55, 61-62, operative part 1-2)