ddrg/super_eurlex huggingface dataset:
21.

Alpina River Cruises and Nicko Tours believe that the question should be rephrased so that the issue of whether a cruise service that operates in internal waters except for a single sea crossing lasting approximately one hour falls within the ambit of Regulation No 3577/92 can also be considered. They take the view that if Regulation No 3577/92 applies only to ‘maritime’ cabotage, in other words cabotage ‘by sea’, then a service operating almost entirely in internal waters would clearly fall outside its ambit and should not therefore be prohibited on grounds of Article 224 of the Shipping Code. Hence the service requested should, in their view, have been authorised on the basis of a decision of the Ministry of Merchant Shipping of 1 June 1957, which established the rule that ships operating a service mainly in internal waters were authorised to pass by sea between the ports of Chioggia and Porto Levante.
44.

After all, even if one were to accept that a non-discriminatory restriction of a fundamental freedom is possible in tax law, it still could not ultimately be accepted that there has been a restriction of the freedom of establishment in the present case. For, in such cases, the Court of Justice does not consider the freedom of establishment to be hindered by the host State where the legislation in question is applicable to all economic operators, its purpose is not to regulate the conditions concerning establishment and any restrictive effects which that legislation might have are too uncertain and indirect to be capable of hindering the exercise of the freedom of establishment. ( 20 ) The decisive criterion in this regard is, ultimately, whether non-discriminatory legislation is capable of seriously influencing an economic operator’s investment decision. ( 21 ) If that case-law is also transposed to a hindrance to the exercise of the freedom of establishment by the State of origin, the fact that an exchange rate loss is not taken into account for tax purposes does not constitute a restriction on the freedom of establishment in the present case. At the time when the investment decision is made, the prospect of an exchange rate loss that would not be allowable against tax and the prospect of an exchange rate gain that would not be taxable are of course both present. Accordingly, the restrictive effects of the non-deductibility of any exchange rate loss arising in connection with the shareholding are too uncertain and too indirect to hinder the exercise of the freedom of establishment.
4.

Articles 361(1), 363, 365(1), (2) and (3), 859(6) and 860 of the implementing regulation provide: ‘Article 361 1. The goods and copies No 4 and No 5 of the transit declaration shall be presented at the office of destination. … Article 363 The customs authorities of the Member State of destination shall return copy No 5 of the transit declaration to the customs authorities in the Member State of departure without delay and at most within one month of the date when the procedure ended. … Article 365 1. If copy No 5 of the transit declaration is not returned to the customs authorities of the Member State of departure within two months of the date of acceptance of the declaration, those authorities shall inform the principal and ask him to furnish proof that the procedure has ended. … 2. The proof referred to in paragraph 1 may be furnished to the satisfaction of the customs authorities in the form of a document certified by the customs authorities of the Member State of destination identifying the goods and establishing that they have been presented at the office of destination or, where Article 406 applies, to the authorised consignee. 3. The Community transit procedure shall also be considered as having ended where the principal presents, to the satisfaction of the customs authorities, a customs document issued in a third country entering the goods for a customs-approved treatment or use, or a copy or photocopy thereof, identifying the goods. Copies or photocopies must be certified as being true copies by the body which certified the original documents, by the authorities of the third countries concerned or by the authorities of one of the Member States. [ ( 5 )] … Article 859 The following failures shall be considered to have no significant effect on the correct operation of the temporary storage or customs procedure in question within the meaning of Article 204(1) of the Code, provided: — they do not constitute an attempt to remove the goods unlawfully from customs supervision, — they do not imply obvious negligence on the part of the person concerned, and — all the formalities necessary to regularise the situation of the goods are subsequently carried out: … 6. in the case of goods in temporary storage or entered for a customs procedure, removal of the goods from the customs territory of the Community … without completion of the necessary formalities; … Article 860 The customs authorities shall consider a customs debt to have been incurred under Article 204(1) of the Code unless the person who would be the debtor establishes that the conditions set out in Article 859 are fulfilled.’
44.

The fact that (as the Commission maintained at the hearing) experience demonstrates that cases are not unusual of treatment plants which start operating in conditions which do not make it possible to ensure the quality levels required by Directive 91/271 cannot justify the practice of considering that plants constructed within the time limits laid down in Article 3 of the directive have become operational only when it is established that the samples examined over the course of one year in accordance with the procedure laid down in Annex I.D satisfy the levels laid down in Annex I.B. In the face of that possible situation, the correct approach is, rather, to establish from the outset whether the plant satisfies the necessary conditions to start operating, that is, whether it complies at that time with the requirements of Annex I.B. To establish that point, it is not necessary to complete the sampling procedure laid down in Annex I.D, the rationale for which, as I have already stated, is to ensure that the quality of treated water is always at the level which should have been guaranteed from the very time when the plant first started to operate.
5.

The finding, as a result of the two abovementioned judgments of the Court, that the tax levied on the registration of second-hand vehicles imported from other Member States is incompatible with EU law made it necessary for the Romanian authorities to refund considerable amounts levied by virtue of that tax. In that situation those authorities laid down specific rules on effecting that refund which are contained in Ordonanța de urgență a Guvernului nr. 8 din 26 februarie 2014 pentru modificarea și completarea unor acte normative și alte măsuri fiscal-bugetare (Government Emergency Order No 8 of 26 February 2014 amending and supplementing certain legislative acts and other fiscal and budgetary measures; ‘OUG No 8/2014’). In particular, Article XV of that order states: ‘1. The sums determined by judicial decision relating to the refunding of the tax on pollution by motor vehicles and the tax on pollutant emissions from motor vehicles, interest until the date of full payment and legal costs, and all other sums as may be determined by the court, which become enforceable by 31 December 2015, shall be paid over a period of five calendar years by means of an annual payment of 20% of the amount payable. 2. Applications for refunds from taxpayers provided for in paragraph 1 shall be dealt with, pursuant to Government Order No 92/2003 on the Code of Tax Procedure, republished, as subsequently amended and supplemented, within 45 days of being submitted, and the payment of annual instalments shall be made in accordance with the schedule established by the Administraţia Fondului pentru Mediu (Environment Fund Office). 3. The period provided for in paragraph 1 shall run from the date on which the period referred to in paragraph 2 has elapsed. 4. During the period provided for in paragraph 1, all enforcement proceedings shall be suspended by law. 5. The sums provided for in paragraph 1, refunded pursuant to the present emergency order, shall be adjusted on the basis of the consumer price index published by the Institutul Naţional de Statistică (National Institute of Statistics). 6. The procedure to be followed for payment by way of enforcement instrument shall be established jointly by the Ministrului Mediului şi Schimbărilor Climatice (Ministry of the Environment and Climate Change) and the Ministrului Finanţelor Publice (Ministry of Public Finances), within the period referred to in paragraph 1. 7. The balance of the sums relating to enforcement instruments issued by the date on which the present emergency order enters into force and for which no enforcement proceedings have been initiated shall be paid in accordance with paragraphs 1 to 6.’
45.

The application of the criteria I have just reiterated leads me to the view that the penalties imposed on the authorised warehousekeeper under the system of joint and several liability provided for in Greek law are measures of quasi-criminal law according to those criteria. While the order for reference states that that liability is classified in Greek law as a ‘civil liability’ which ‘does not constitute an administrative penalty’, and the Greek Government observes that the liability in question is in the nature not of a penalty but of a guarantee of payment of the amounts charged, there is no getting away from the fact that the customs offence referred to in Article 89(2) of the Customs Code, under which an increased charge is to be levied on the persons responsible for such an offence, is defined in identical terms to the criminal offence of smuggling defined in Article 67(5) of law 2127/1993. Consequently, there is no watertight separation between customs penalties and criminal offences, especially as the joint and several liability of the authorised warehousekeeper is based on the application, ‘by analogy’, ( 12 ) of Article 108 of the Customs Code, which allows the criminal court, when passing sentence, to declare the owner of the smuggled products to be jointly and severally liable with the person sentenced under criminal law for payment of the fine. Furthermore, unlike excise duties properly so-called, the increased charge imposed on the authorised warehousekeeper is both punitive, in that it penalises the warehousekeeper’s failure to exercise adequate vigilance and diligence, and preventive, in that, according to the referring court, it seeks to guarantee the effectiveness of the fines imposed and to ensure that traders who profit from the activity in the context of which the smuggling was committed take all possible measures to prevent the commission of acts of smuggling. ( 13 ) Those two objectives of punishment and deterrence of excise duty evasion are characteristic of criminal penalties. Finally, the tax penalties for which the authorised warehousekeeper may be declared jointly and severally liable can be substantial, amounting to up to 10 times the tax due. ( 14 )
30.

In those circumstances, the Juzgado de lo Social no 33 de Barcelona (Social Court No 33, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Must the general prohibition of discrimination affirmed in Article 21(1) of the Charter be interpreted as including, within the ambit of its prohibition and protection, the decision of an employer to dismiss a worker, previously well regarded professionally, merely because of his finding himself in a situation of temporary incapacity for work — of uncertain duration — as a result of an accident at work, when he was receiving health assistance and financial benefits from Social Security? 2. Must Article 30 of the Charter be interpreted as meaning that the protection that must be afforded a worker who has been the subject of a manifestly arbitrary and groundless dismissal must be the protection provided for in national legislation for every dismissal which infringes a fundamental right? 3. Would a decision of an employer to dismiss a worker previously well regarded professionally merely because he was subject to temporary incapacity — of uncertain duration — as a result of an accident at work, when he is receiving health assistance and financial benefits from Social Security, come within the ambit of Articles 3, 15, 31, 34(1) and 35(1) of the Charter (or any one or more of them)? 4. If the three foregoing questions (or any of them) are answered in the affirmative and the decision to dismiss the worker, previously professionally well regarded, merely because he was subject to temporary incapacity — of uncertain duration — as a result of an accident at work, when he is receiving health assistance and financial benefits from Social Security, is to be interpreted as coming within the ambit of one or more articles of the Charter, may those articles be applied by the national court in order to settle a dispute between private individuals, either on the view that — depending on whether a “right” or “principle” is at issue — they enjoy horizontal effect or by virtue of application of the “principle that national law is to be interpreted in conformity with an EU directive”? 5. If the four foregoing questions are answered in the negative, would the decision of an employer to dismiss a worker, previously well regarded professionally, merely because he was subject to temporary incapacity — of uncertain duration — by reason of an accident at work, be caught by the term “direct discrimination on grounds of disability” as one of the grounds of discrimination envisaged in Articles 1, 2 and 3 of Directive 2000/78?’
27.

The Bundesarbeitsgericht (Federal Labour Court), before which the appeal on a point of law was brought, asks the Court to give a preliminary ruling on the following questions: ‘I. 1. Does Article 3 of … Directive 2001/23 … preclude a provision of national law which provides that, in the event of a transfer of an undertaking or business, all conditions of employment agreed between the transferor and the employee, individually and in the exercise of their freedom of contract, in the contract of employment transfer to the transferee unaltered, as if he had himself agreed them in an individual contract with the employee, where national law provides for both consensual and unilateral adjustments by the transferee? 2. If Question 1 is answered in the affirmative, either generally or for a defined group of individually agreed conditions of employment in the employment contract between the transferor and employee: Does the application of Article 3 of Directive 2001/23 … have the effect that certain terms of the contract of employment between the transferor and the employee which have been agreed in the exercise of freedom of contract are to be excluded from being transferred unaltered to the transferee, and are to be adjusted simply by reason of the transfer of the undertaking or business? 3. If, according to the Court of Justice’s answers to Questions 1 and 2, an individual provision which has been agreed in an individual contract, under which certain provisions in a collective agreement are, dynamically and in the exercise of freedom of contract, incorporated into the employment contract, is not transferred unaltered to the transferee: (a) Does this apply also where neither the transferor nor the transferee is party to a collective agreement or is affiliated to such a party, that is, where, even prior to the transfer of the undertaking or business, the provisions in the collective agreement would not have been applicable to the employment relationship with the transferor in the absence of the term referring to them in the agreement made, in the exercise of freedom of contract, in the contract of employment? (b) If the answer to that question is in the affirmative: Does this apply also if the transferor and the transferee are undertakings within the same group? II. Does Article 16 of the Charter … preclude a national provision enacted to implement Directive 77/187 … or … 2001/23 … which provides that, in the event of a transfer of an undertaking or a business, the transferee is bound by the conditions of employment agreed individually and in the exercise of their freedom of contract by the transferor with the employee as if he had agreed them himself, even if these conditions incorporate certain provisions of a collective agreement, which would not otherwise apply to the employment contract, into the employment contract dynamically, in so far as national law provides for both consensual and unilateral adjustments by the transferee?’
85.

In view of all the foregoing considerations, I propose that the questions referred for a preliminary ruling by the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) be answered as follows: (1) Article 79(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs in conjunction with Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted to the effect that decisions adopted by a national court in response to claims that are supplementary to an action for infringement in respect of two co-defendants domiciled in two different Member States, such as compensation for damage, the destruction or recall of the infringing goods, reimbursement of lawyers’ fees or publication of the judgment, have legal effect throughout the entire territory of the Union. (2) Article 89(1)(d) of Regulation No 6/2002 is to be interpreted to the effect that the concept of ‘other sanctions’ refers to claims such as the destruction of the infringing goods, the recall of those goods and publication of the judgment. On the other hand, that concept does not cover claims relating to compensation for damage, disclosure of company accounting information or reimbursement of lawyers’ fees. (3) Article 89(1)(d) of Regulation No 6/2002 and Article 8(2) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations is to be interpreted to the effect that the law applicable to the claims that are supplementary to an action for infringement relating to the destruction of the infringing goods, the recall of those goods, publication of the judgment, compensation for damage, disclosure of company accounting information and reimbursement of lawyers’ fees is the law of the Member State where the act giving rise to the alleged infringement occurred or may occur. In the present case, the act giving rise to the alleged infringement is the manufacture of the infringing goods. (4) Article 20(1)(c) of Regulation No 6/2002 is to be interpreted to the effect that the concept of ‘acts of reproduction for the purpose of making citations’ includes use by a third party of the image of goods incorporating protected Community designs for purposes of selling its own goods. It is for the national court to ascertain that this act of reproduction is compatible with fair trade practice, that it does not unduly prejudice the normal exploitation of those designs and that mention is made of the source.
5.

Article 63(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18 ( 3 ) (‘Reliance on the capacities of other entities’), states: ‘With regard to criteria relating to economic and financial standing as set out pursuant to Article 58(3), and to criteria relating to technical and professional ability as set out pursuant to Article 58(4), an economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. With regard to criteria relating to the educational and professional qualifications as set out in point (f) of Annex XII Part II, or to the relevant professional experience, economic operators may however only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required. Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing a commitment by those entities to that effect. The contracting authority shall, in accordance with Articles 59, 60 and 61, verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion pursuant to Article 57. The contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. The contracting authority may require or may be required by the Member State to require that the economic operator substitutes an entity in respect of which there are non-compulsory grounds for exclusion. ...’
27.

Having doubts concerning the interpretation to be given to Framework Decision 2002/584, the Hof van Beroep te Brussel (Court of Appeal of Brussels) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Should Article 3(3) of Framework Decision [2002/584] on the European arrest warrant be interpreted as meaning that surrender can be granted only in respect of persons who are regarded as having attained the age of majority under the law of the executing Member State, or does that provision allow the executing Member State also to grant the surrender of minors who, on the basis of national rules, can be held criminally responsible from a certain age (assessing, if necessary, whether there has been compliance with various conditions)? (2) On the hypothesis that the surrender of minors is not prohibited by Article 3(3) of the Framework Decision, should that provision then be interpreted: (a) as meaning that the existence of a (theoretical) possibility of being able to punish minors from a certain age in accordance with national law suffices as a criterion for granting the surrender (in other words, by carrying out an assessment in abstracto on the basis of the criterion of the age from which someone can be regarded as criminally responsible, without taking into account any possible further conditions)?; or (b) as meaning that neither the principle of mutual recognition, as referred to in Article 1(2) of Framework Decision [2002/584], nor the text of Article 3(3) of [that] Framework Decision, preclude the executing Member State from carrying out an assessment in concreto on a case-by-case basis, where it may be required that, so far as concerns the person whose surrender is sought, the same conditions for criminal responsibility must be met as those that apply to the nationals of the executing Member State, having regard to their age at the time of the acts, having regard to the nature of the alleged offence and possibly even having regard to the preceding judicial interventions in the issuing Member State which led to a measure of an educational nature, even if those conditions did not exist in the issuing Member State? (3) If the executing Member State may carry out an assessment in concreto, is then, in order to avoid impunity, no distinction to be made between a surrender for the purposes of a criminal prosecution and a surrender for the purposes of the enforcement of a sentence?’