ddrg/super_eurlex huggingface dataset:
Regulation No 1896/2006 creating a European order for payment procedure must be interpreted as meaning that the procedures laid down in Articles 16 to 20 thereof are not applicable where it appears that a European order for payment has not been served in a manner consistent with the minimum standards laid down in Articles 13 to 15 of that regulation. Where it is only after a European order for payment has been declared enforceable that such an irregularity is exposed, the defendant must have the opportunity to raise that irregularity, which, if it is duly established, will invalidate the declaration of enforceability.

First, if the European order for payment has not been served in a manner which complies with those minimum standards, the defendant does not receive form F, by which he may oppose such an order and which is sent to him at the same time as form E which contains the order, and therefore is not properly informed of the existence and basis of the European order for payment issued against him. In such a case, the defendant does not necessarily have all the information necessary to enable him to decide whether or not to oppose that order. Such a situation cannot be compatible with the rights of the defence.

Second, if there is no service, the period within which to send a statement of opposition in Article 16(2) of Regulation No 1896/2006 does not start to run, with the result that validity of the procedures which depend on the expiry of that period, such as the declaration of enforceability referred to in Article 18 of the regulation or the application for review in Article 20 thereof even if they have already been initiated is called into question. More specifically, as regards the review procedure, it must be recalled that that procedure is applicable, only in the exceptional cases which are exhaustively listed in Article 20 of the regulation, a failure to effect service not being one of them.

Given that Regulation No 1896/2006 is silent as to the possible remedies available to the defendant if it only becomes apparent after a European order for payment has been declared enforceable that that order has not been served in a manner which complies with those minimum standards, those procedural issues are governed by national law in accordance with Article 26 of Regulation No 1896/2006.

(see paras 40-49, operative part)
Keywords

Summary



Keywords

1. Approximation of laws — Trade marks — Directive 2008/95 — Signs capable of constituting a mark — Representation, by a design alone, without indicating the size or the proportions, of the layout of a retail store — Concept of ‘services’ — Services consisting of services relating to those goods — Included — Conditions

(European Parliament and Council Directive 2008/95, Arts 2 and 3)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — General or hypothetical questions — Question appearing to be abstract or purely hypothetical in relation to the subject-matter of the main proceedings — Inadmissibility

(Art. 267 TFEU)

Summary

1. Articles 2 and 3 of Directive 2008/95 on trade marks must be interpreted as meaning that the representation, by a design alone, without indicating the size or the proportions, of the layout of a retail store, may be registered as a trade mark for services consisting in services relating to those goods but which do not form an integral part of the offer for sale thereof, provided that the sign is capable of distinguishing the services of the applicant for registration from those of other undertakings; and, that registration is not precluded by any of the grounds for refusal set out in that directive.

(see para. 27, operative part)

2. A reference for a preliminary ruling from a national court must be rejected if it is quite obvious that the interpretation of EU law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action.

(see para. 30)
Article 45(4) TFEU must be interpreted as not authorising a Member State to reserve to its nationals the exercise of the duties of President of a Port Authority where the powers connected with that function, which involve the exercise of powers of a public authority, first, are only a marginal part of the duties of the holder, which are generally of a technical and financial management nature and which cannot be amended by the exercise of those powers, and, secondly, are intended to be exercised solely occasionally or in exceptional circumstances.

In those circumstances, a general exclusion of nationals of other Member States from access to the post of President of an Italian Port Authority constitutes discrimination on grounds of nationality prohibited by Article 45(1) to (3) TFEU.

(see paras 57, 60-62, operative part)
A hot-water meter which satisfies all the requirements laid down by Directive 2004/22 on measuring instruments and which is connected to a remote (telemetric) data-transmission device falls within the scope of Directive 2004/22.

Once a matter has been harmonised at EU level, any national measures relating thereto must be assessed in the light of the provisions of that harmonising measure and not those of primary law. Such is the case with regard to Directive 2004/22, which seeks to establish the same requirements as to performance in all Member States which the devices and systems referred to in Article 1 thereof must satisfy in order to be placed on the market and/or put into use.

That directive must be interpreted as precluding national legislation and practice according to which such a hot-water meter is to be regarded as a measuring system and, as a result, cannot be used for its intended purpose so long as it has not been subject, together with that device, to a metrological verification as a measuring system.

(see paras 34, 35, 39, 40, 56, operative part)
EU law precludes a system of repayment of a tax levied in breach of EU law which allows individuals to obtain repayment of that tax only to the extent that the amount of that tax exceeds that of a tax introduced subsequently.

Such a system of repayment has the effect, in the case of a second hand vehicle imported from another Member State, of restricting or completely eliminating the requirement to repay the tax levied in breach of EU law, which perpetuates the discrimination resulting from that tax.

In addition, the effect of that system is to exempt the national authorities from the requirement to take account of the interest payable to the taxpayer for the period between the date of the undue levying of the tax and the repayment thereof.

Consequently, that system of repayment does not make it possible for individuals effectively to exercise their right under EU law to seek repayment of a tax levied in breach of EU law.

(see paras 33, 35-39, operative part)
In a situation in which a tenderer intends to carry out a public contract by having recourse exclusively to workers employed by a subcontractor established in a Member State other than that to which the contracting authority belongs, Article 56 TFEU precludes the application of legislation of the Member State to which that contracting authority belongs which requires that subcontractor to pay those workers a minimum wage fixed by that legislation.

The imposition, under national legislation, of a minimum wage on subcontractors of a tenderer which are established in a Member State other than that to which the contracting authority belongs and in which minimum rates of pay are lower constitutes an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State. Consequently, a measure such as that at issue in the main proceedings is capable of constituting a restriction within the meaning of Article 56 TFEU.

(see paras 30, 36, operative part)
Jurisdiction in matters of parental responsibility which has been prorogued, under Article 12(3) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, in favour of a court of a Member State before which proceedings have been brought by mutual agreement by the holders of parental responsibility ceases following a final judgment in those proceedings.

It follows from the wording of Articles 8(1) and 12(3) of that regulation that the jurisdiction of a court in matters of parental responsibility must be verified and established in each specific case, where a court is seised of proceedings, which implies that it does not continue after pending proceedings have been brought to a close.

Moreover, jurisdiction in matters of parental responsibility must be determined, above all, in the best interests of the child.

Accordingly, it must be considered that, where a court is seised of proceedings in accordance with Article 12(3) of Regulation No 2201/2003, the best interests of the child can be safeguarded only by a review, in each specific case, of the question whether the prorogation of jurisdiction which is sought is consistent with those best interests.

Finally, since Article 12(3) seeks to allow the holders of parental responsibility, by mutual agreement and subject to certain other conditions, to bring proceedings before a court in relation to matters pertaining to parental responsibility for the assessment of which that court does not, in principle, have jurisdiction, it cannot be assumed that that agreement will continue, in all cases, after those proceedings have been brought to a close or in relation to other matters which may come to light subsequently.

Consequently, a prorogation of jurisdiction, on the basis of Article 12(3) of Regulation No 2201/2003, is valid only in relation to the specific proceedings for which the court whose jurisdiction is prorogued is seised and that jurisdiction comes to an end, in favour of the court benefiting from a general jurisdiction under Article 8(1) of that regulation, following the final conclusion of the proceedings from which the prorogation of jurisdiction derives.

(see paras 40, 45, 47-50, operative part)
If there was no requirement for fresh poultry meat to comply with the microbiological criterion at all stages of distribution, including retail sale, one of the fundamental objectives of food law, which is to attain a high level of protection of public health, to which recital 1 in the preamble to Regulation No 2073/2005 refers, would be undermined if foodstuffs, containing micro-organisms in quantities which present an unacceptable risk to human health were placed on the market.

Annex II E. 1 to Regulation No 2160/2003 on the control of salmonella and other specified food-borne zoonotic agents in the food chain, as amended by Regulation No 1086/2011, must be interpreted as meaning that fresh poultry meat from the animal populations listed in Annex I to that regulation must satisfy the microbiological criterion set out in Annex I, Chapter I, Row l.28 of Regulation No 2073/2005 on microbiological criteria for foodstuffs, as amended by Regulation No 1086/2011, at all the stages of distribution including the retail sale stage.

EU law, in particular Regulation No 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety and Regulation No 2073/20052005 on microbiological criteria for foodstuffs, as amended by Regulation No 1086/2011, must be interpreted in principle, as not precluding national law which imposes a penalty on a food business operator which is active only at the distribution stage for placing foodstuff on the market, on account of the failure to comply with the microbiological criterion laid down in Annex I, Chapter I, Row 1.28 of Regulation No 2073/2005. It is for the national court to determine whether the penalty observes the principle of proportionality referred to in Article 17(2) of Regulation No 178/2002.

In that regard, the imposition of a system of strict liability is not disproportionate in relation to the objectives pursued if that system is such as to encourage the persons concerned to comply with the provisions of a regulation and where the objective pursued is a matter of public interest which may justify the introduction of such a system.

(see paras 36, 37, 42, 44, operative part 2)
3.

Annuls point 2 of the operative part of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 June 2011 (Case R 1432/2010-1) and point 2 of the operative part of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 May 2011 (Case R 1310/2010-1);
Article 45 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1177/2009, read in conjunction with Article 2 of the directive, and the principle of equal treatment and the obligation of transparency must be interpreted as not precluding the exclusion of an economic operator from a procurement procedure on the ground that the operator has failed to comply with the requirement laid down in the contract documentation to annex to his bid, on pain of exclusion, a statement to the effect that the person designated in the bid as the operator’s technical director has not been the subject of criminal proceedings or a conviction, even where, at a date after the expiry of the deadline for submitting bids, such a statement has been provided to the contracting authority or it is shown that the person in question was identified as the technical director in error.

(see para. 50, operative part)
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by tolerating the operation of the said landfill site without a valid permit complying with the conditions and content laid down for the grant of such a permit and, consequently, without the holder of the waste or the operator of the said landfill site being able to prove, before or at the time of delivery of the waste, that the waste can be accepted at the site in accordance with the conditions set out in the permit, the Hellenic Republic has failed to fulfil its obligations under Articles 8, 9(a) to (c) and 11(1)(a) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste and Article 23 of Directive 2008/98; and
Annex I, No 14, to Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2009/31, must be interpreted as meaning that exploratory drilling, in the context of which a trial production of natural gas and petroleum is envisaged in order to determine the commercial feasibility of a deposit, does not come within the scope of that provision.

Whilst exploratory drilling is, by definition, an operation carried out for commercial purposes, it follows from the context and objective of Annex I, No 14, to Directive 85/337 that the scope of that provision does not extend to exploratory drillings. In fact, that provision aims at projects of a certain duration which enable relatively large-scale quantities of hydrocarbons to be extracted. A wholesale application of the criteria laid down in Annex I, No 14, to Directive 85/337 to exploratory drillings does not make much sense, as the thresholds laid down in that provision are fixed quantities per day, whereas the limit assigned to an exploratory drilling operation is unrelated to such thresholds. Moreover, prior to an exploratory drilling operation, the actual presence of hydrocarbons cannot be determined with certainty. It is only on the basis of an exploratory drilling operation that the quantity of hydrocarbons that can be extracted per day can be determined. Moreover, the quantity of hydrocarbons earmarked for extraction in such a trial, as well as its duration, are restricted to the technical needs arising from the objective of establishing the feasibility of a deposit.

This interpretation is corroborated by the overall scheme of Directive 85/337. Annex II, No 2(d), to that directive is liable to apply to exploratory drillings, with the result that not all exploratory drillings fall outside the scope of the directive.

(see paras 22-26, 32, operative part 1)
In that connection, Article 21(1) of the Charter of Fundamental Rights of the European Union provides that any discrimination based, in particular, on sexual orientation must be prohibited. That provision is a particular expression of the principle of equal treatment, which is a general principle of EU law enshrined in Article 20 of the Charter.

The requirements flowing from the protection of those fundamental rights are binding on Member States when they implement EU rules, so that they are bound to apply the rules in accordance with those requirements. In that context, the Member States must make sure they do not rely on an interpretation of wording of secondary legislation which would be in conflict with those fundamental rights.

Point 2.1 of Annex III to Commission Directive 2004/33 implementing Directive 2002/98 as regards certain technical requirements for blood and blood components must be interpreted as meaning that the criterion for permanent deferral from blood donation in that provision relating to sexual behaviour covers the situation in which a Member State, having regard to the prevailing situation there, provides for a permanent contraindication to blood donation for men who have had sexual relations with other men where it is established, on the basis of current medical, scientific and epidemiological knowledge and data, that such sexual behaviour puts those persons at a high risk of acquiring severe infectious diseases and that, with due regard to the principle of proportionality, there are no effective techniques for detecting those infectious diseases or, in the absence of such techniques, any less onerous methods than such a counter indication for ensuring a high level of health protection of the recipients. It is for the referring court to determine whether, in the Member State concerned, those conditions are met.

In that connection, it is for the referring court to determine in particular whether the questionnaire and individual interview with a medical professional, provided for in Annex II B(2) to Directive 2004/33, are able to identify more precisely the type of behaviour presenting a risk for the health of recipients, in order to impose a less onerous contraindication than a permanent contraindication for the entire group of men who have had sexual relations with a man.

(see paras 66, 69, operative part)
Article 4(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as allowing holder of an exclusive right to distribute a protected work to prevent an offer for sale or a targeted advertisement of the original or a copy of that work, even if it is not established that that advertisement gave rise to the purchase of the protected work by an EU buyer, in so far as that advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it.

There may be an infringement of the exclusive distribution right, under Article 4(1) of Directive 2001/29, where a trader, who does not hold the copyright, sells protected works or copies thereof and addresses an advertisement, through its website, by direct mail or in the press, to consumers located in the territory of the Member State in which those works are protected in order to invite them to purchase it.

That interpretation is consistent with the objectives of that directive, as set out in recitals 9 to 11 in the preamble thereto, which state that the harmonisation of copyright must take as a basis a high level of protection, that authors have to receive an appropriate reward for the use of their work and that the system for the protection of copyright must be rigorous and effective.

(see paras 31, 34, 35, operative part)
Article 8(3)(e) of Directive 2004/48 on the enforcement of intellectual property rights must be interpreted as precluding a national provision which allows, in an unlimited and unconditional manner, a banking institution to invoke banking secrecy in order to refuse to provide, pursuant to Article 8(1)(c) of that directive, information concerning the name and address of an account holder.

That unlimited and unconditional authorisation to invoke banking secrecy is such as to prevent the procedures laid down by Directive 2004/48 and the measures taken by the competent national authorities, in particular when they seek to order the disclosure of necessary information under Article 8(1) of that directive, from taking due account of the specific characteristics of each intellectual property right and, where appropriate, the intentional or unintentional character of the infringement. It follows that an authorisation of that kind is capable of seriously impairing, in the context of Article 8 of Directive 2004/48, the effective exercise of the fundamental right to intellectual property — to the benefit of the right of persons covered by Article 8(1) of Directive 2004/48 to the protection of personal data concerning them — as a result of the obligation, for a banking institution, to respect banking secrecy. Such a national provision taken in isolation is such as to seriously infringe the fundamental right to an effective remedy and, ultimately, the fundamental right to intellectual property enjoyed by the holders of those rights and does not, therefore, comply with the requirement to ensure a fair balance between the various fundamental rights weighed up in Article 8 of Directive 2004/48.

It is, however, for the referring court to determine whether there are, in the national law concerned, any other means or other remedies which would allow the competent judicial authorities to order that the necessary information concerning the identity of persons who are covered by Article 8(1) of Directive 2004/48 be provided, in view of the specific circumstances of each case, in accordance with recital 17 in the preamble to that directive.

(see paras 39-43, operative part)