ddrg/super_eurlex huggingface dataset:
The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review. However, since the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and the context in which it was adopted, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him.

Thus, where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision.

In that regard, in a situation where the name of the person concerned has been included in the list of persons subject to restrictive measures freezing funds because of that person’s alleged responsibility, as supposed director of a newspaper, for acts of public incitement to hatred and violence and for disinformation campaigns, the obligation to state reasons is fulfilled if the institution adopting the act provides notes in the statement of reasons for the decision to freeze funds which allow the person concerned to understand the basis for the actual and specific reason which led that institution to adopt restrictive measures against that person. Such is the case if the act identifies the actual and specific evidence, in terms of professional position, publishing group, newspaper and types of activities and press campaigns covered. From those notes, the person concerned is in a position to dispute the merits of the act. In the light of those notes, it is possible for that person, if appropriate, to dispute the truth of the claims made in the act or to dispute the relevance of all or any of those claims or their classification.

(see paras 50, 51, 53, 54, 56, 57, 59)
Article 11(1) of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2945/94 and Regulation No 495/97, must be interpreted as meaning that, subject to the exemptions laid down in the third subparagraph of Article 11(1), the reduction referred to in point (a) of the first subparagraph of Article 11(1) must be applied, inter alia, in the case where it turns out that the goods for export in respect of which a refund was requested were not of sound and fair marketable quality, notwithstanding the fact that the exporter acted in good faith and correctly described the nature and origin of those goods.

That reduction mechanism consists in imposing the payment of a penalty, the amount of which is determined in proportion to the amount which would have been unduly received by the exporter had the requested refund been granted. It concerns a penalty which forms an integral part of the export refund scheme and is not criminal in nature. The liability on which that penalty is based is essentially objective in nature. It follows that the reduction must be applied even if the exporter has not committed any fault, he acted in good faith and gave an exact description of the nature and origin of the goods at issue in his export declarations.

(see paras 25, 26, 28, 37, operative part)
Where, in their capacity as contracting authority, a number of public authorities jointly establish an entity with responsibility for carrying out their public service mission, or where a public authority subscribes to such an entity, the condition established by the case-law of the Court of Justice of the European Union to the effect that, in order to be exempted from their obligation to initiate a public tendering procedure in accordance with the rules of EU law, those authorities must jointly exercise over that entity control similar to the control they exercise over their own departments, is fulfilled where each of those authorities not only holds capital in that entity, but also plays a role in its managing bodies.

There is similar control where the entity in question is subject to a control which enables the contracting authority to influence that entity’s decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions of that entity. In other words, the contracting authority must be able to exercise a structural and functional control over that entity. That control must also be effective. Where use is made of an entity jointly owned by a number of public authorities, the similar control may be exercised jointly by those authorities, without it being essential for such control to be exercised individually by each of them. It follows that, if a public authority becomes a minority shareholder in a company limited by shares with wholly public capital for the purpose of awarding the management of a public service to that company, the control that the public authorities which are members of that company exercise over it may be categorised as similar to the control they exercise over their own departments when it is exercised by those authorities jointly. In those circumstances, although, where a number of public authorities make use of a common entity for the purposes of carrying out a common public service task, it is certainly not essential that each of those authorities should in itself have an individual power of control over that entity. However, if the very concept of joint control is not to be rendered meaningless, the control exercised over that entity cannot be based solely on the controlling power of the public authority with a majority holding in the capital of the entity concerned. Where the position of a contracting authority within a jointly owned successful tenderer does not provide it with the slightest possibility of participating in the control of that tenderer, that would, in effect, open the way to circumvention of the application of the rules of EU law regarding public contracts or service concessions, since a purely formal affiliation to such an entity or to a joint body managing it would exempt the contracting authority from the obligation to initiate a tendering procedure in accordance with the EU rules, even though it would take no part in exercising the similar control over that entity.

(see paras 27-31, 33, operative part)
Article 23(3) and (4) of Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in accordance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.

Member States enjoy a discretion with regard to the implementation of the provisions of Directive 2005/85 in the light of the particular features of their national law, including when implementing the procedure for granting and withdrawing refugee status. First, under Article 23(3) of the directive, Member States may prioritise or accelerate any examination, including where the application is likely to be well-founded or where the applicant has special needs. Secondly, under Article 23(4), Member States may apply a prioritised or accelerated examination procedure on the basis of 15 specific reasons justifying the application of such a procedure. It is apparent from those provisions that the list of applications which can be subject to prioritised or accelerated examination is indicative and non-exhaustive, and that Member States may thus decide to examine in priority, or by way of an accelerated procedure, applications which do not fall within any of the categories listed in paragraph (4), provided that they comply with the basic principles and guarantees set out in Chapter II of the directive.

As to the principle of non-discrimination, under the system established by the directive, the country of origin and the nationality of the applicant play a decisive role. It is clear from Article 8(2)(b) of the directive that the country of origin of the applicant has a bearing on the determining authority’s decision, given that the determining authority is required to keep abreast of the general situation existing in that country in order to determine whether a danger exists for the applicant for asylum and, if necessary, whether that person has need of international protection.

None the less, in order to avoid any discrimination between applicants for asylum from a specific third country whose applications might be the subject of a prioritised examination procedure and nationals of other third countries whose applications are subject to the normal procedure, that prioritised procedure must not deprive applicants in the first category of the guarantees required by Article 23 of Directive 2005/85, which apply to all forms of procedure.

(see paras 63, 64, 67, 69-71, 73, 74, 77, operative part 1)
Articles 43 EC and 49 EC must be interpreted as precluding national legislation which grants the exclusive right to run, manage, organise and operate games of chance to a single entity, where, firstly, that legislation does not genuinely meet the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner and, secondly, where strict control by the public authorities of the expansion of the sector of games of chance, solely in so far as is necessary to combat criminality linked to those games, is not ensured. It is for the national court to ascertain whether this is the case.

In the event that the national legislation governing the organisation of games of chance is incompatible with the Treaty provisions on the freedom to provide services and the freedom of establishment, the national authorities may not refrain from considering applications, such as those at issue in the main proceedings, for permission to operate in the sector of games of chance, during a transitional period.

The refusal to allow the national administration concerned a transitional period in which it does not have to consider, on a transitional basis, applications for the grant of permits in the sector of games of chance in the event of incompatibility of national legislation with Articles 43 EC and 49 EC does not necessarily lead to an obligation for the Member State concerned to liberalise the market in games of chance if it finds that such a liberalisation is incompatible with the level of consumer protection and the preservation of order in society which that Member State intends to uphold. Under EU law as it currently stands, Member States remain free to undertake reforms of existing monopolies in order to make them compatible with Treaty provisions, inter alia by making them subject to effective and strict controls by the public authorities.

In any event, if the Member State concerned should find that a reform of an existing monopoly effected with a view to making it compatible with Treaty provisions is not feasible and that a liberalisation of the market in games of chance is the better measure for ensuring the level of consumer protection and the preservation of order in society which that Member State intends to uphold, it will be required to observe the fundamental rules of the Treaties, including in particular Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency. In such a case, the introduction in that Member State of an administrative permit scheme for the provision of certain types of games of chance must be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily.

(see paras 46-48, operative part 3)
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even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver. The making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication. That retransmission must therefore be considered to be a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29. Such a retransmission cannot be regarded merely as a technical means to ensure or improve reception of the terrestrial television broadcast in its catchment area. Consequently, it cannot be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public. In that connection, the term ‘public’ in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. In that context, it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection. That technique does not prevent a large number of persons having access to the same work at the same time. In addition, the requirement that there must be a ‘new public’ is not relevant where works included in a terrestrial television broadcast are made available at the same time on the Internet. In that case, each of those two transmissions must be authorised individually and separately by the authors concerned given that each is made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for a public. That interpretation of Article 3(1) of Directive 2001/29 is not influenced by the fact that such a retransmission is funded by advertising and is therefore of a profit-making nature, or by the fact that it is made by an organisation which is acting in direct competition with the original broadcaster. A profit-making nature does not determine conclusively whether such a retransmission is to be categorised as a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29.
Keywords

Summary



Keywords

Freedom of establishment — Tax legislation — Corporation tax — Tax relief — National legislation authorising the deduction of losses incurred by a resident subsidiary but excluding deduction for a non-resident subsidiary — Lawfulness — Conditions

(Arts 49 TFEU and 54 TFEU)

Summary

Articles 49 TFEU and 56 TFEU do not preclude national legislation under which a parent company merging with a subsidiary established in another Member State, which has ceased activity, cannot deduct from its taxable income the losses incurred by that subsidiary in respect of the tax years prior to the merger, while that national legislation allows such a possibility when the merger is with a resident subsidiary. Such legislation is none the less incompatible with EU law if it does not allow the parent company the possibility of showing that its non-resident subsidiary has exhausted the possibilities of taking those losses into account and that there is no possibility of their being taken into account in its State of residence in respect of future tax years either by itself or by a third party.

The possibility granted by the law of a Member State to a resident parent company of taking a resident subsidiary’s losses into account when it merges with that subsidiary indeed constitutes a tax advantage for the parent company, while the exclusion of such an advantage in relations between a resident parent company and a subsidiary established in another Member State is liable to make establishment in the latter State less attractive and hence to deter the company from setting up subsidiaries there. Moreover, from the point of view of the aim of such legislation, the situation of a resident parent company which wishes to merge with a resident subsidiary and that of a resident parent company which wishes to carry out the same operation with a non-resident subsidiary are objectively comparable.

However, first, such a difference of treatment is justified in so far as it pursues legitimate objectives compatible with the Treaty and related to overriding reasons in the public interest, such as the need to safeguard the allocation of powers of taxation between the Member States and to avert the risks of the double use of losses and tax avoidance.

Secondly, such legislation is appropriate to ensuring the attainment of those objectives. However, it goes beyond what is necessary to attain the essential part of the objectives pursued in a situation in which the non-resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account.

In any event, where the application of EU law means that a parent company resident in a Member State can take the losses of its non-resident subsidiary into account in connection with a merger, the rules for calculating the non-resident subsidiary’s losses for the purpose of their being taken over by the resident parent company must not constitute unequal treatment compared with the rules of calculation which would be applicable if the merger were with a resident subsidiary.

(see paras 31, 32, 35, 40, 46, 49, 56, 61, operative part 1 and 2)
Procedures for (i) the drawing off from the original vials of liquid medicinal products, which have been placed on the market in the European Union and have a marketing authorisation granted by the Community pursuant to Article 3(1) of Regulation No 726/2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency, as medicinal products developed by means of one of the biotechnological processes mentioned in point 1 of the Annex to that regulation, and (ii) the transfer into ready-to-use syringes of the portions so drawn off, without the use of any of the biotechnological processes listed in point 1 of the Annex to Regulation No 726/2004, do not require a marketing authorisation under Article 3(1) of Regulation No 726/2004, provided that such drawing off and transfer do not result in a modification of the medicinal product concerned and are carried out solely on the basis of individual prescriptions calling for processes of such a kind (a matter which falls to be determined by the referring court), but remain, in any event, subject to Directive 2001/83 on the Community code relating to medicinal products for human use, as amended by Directive 2010/84.

Those procedures are in reality analogous to actions which could be carried out, under their responsibility, by doctors prescribing the treatment or by pharmacies themselves in their dispensaries, or else in hospitals, and those activities occur after the medicinal products for which a marketing authorisation exists have been placed on the market.

As regards the applicability of Directive 2001/83, first, it is possible that Article 5(1) thereof, which excludes from the scope of the directive, in order to fulfil special needs, medicinal products supplied in response to a bona fide unsolicited order, formulated in accordance with the specifications of an authorised health-care professional and for use by an individual patient under his direct personal responsibility, may be relied on as regards the making available of an authorised medicinal product for therapeutic indications not covered by the marketing authorisation, where such a formulation is in accordance with the specifications of an authorised practitioner and is for use by an individual patient under his direct personal responsibility. Second, the drawing off of liquid medicinal products remains in any event governed by Article 40(2) of Directive 2001/83.

(see paras 40-43, 45, 48, 51, 54, operative part)
Article 45 TFEU must be interpreted as precluding legislation of a federated entity of a Member State all employers whose established place of business is located in that entity’s territory to draft cross-border employment contracts exclusively in the official language of that federated entity, failing which the contracts are to be declared null and void by the national courts of their own motion.

Such legislation cannot be regarded as proportionate since it goes beyond what is strictly necessary to attain legitimate objectives such as, first, to promote and encourage the use of one of the official languages of the Member State concerned, next, to ensure the protection of employees by enabling them to examine employment documents in their own language and to enjoy the effective protection of the workers’ representative bodies and administrative and judicial bodies called upon to recognise those documents, and, finally, the objective to ensure the efficacy of the checks and supervision of the employment inspectorate.

(see paras 24, 33, 34, operative part)
Keywords

Summary



Keywords

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

(Art. 267 TFEU)

2. Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim for damages for losses suffered — Detailed procedural rules — Application of national law — Conditions — Observance of the principle of equivalence in the detailed procedural rules for the exercise of a right conferred by EU law or those governing a right conferred by the domestic legal system — Observance of the principle of effectiveness of EU law

(Art. 101(1) TFEU)

3. Agreements, decisions and concerted practices — Adverse effect on competition — Access for persons who have been adversely affected by a cartel to forming part of the file relating to national proceedings concerning the application of Article 101 TFEU — Application of national law — Conditions — Observance of the principle of effectiveness — Obligation to weigh up the interests involved

(Art. 101(1) TFEU; Council Regulation No 1/2003)

Summary

1. See the text of the decision.

(see paras 15, 16)

2. See the text of the decision.

(see paras 20-27)

3. EU law, in particular the principle of effectiveness, precludes a provision of national law under which access to documents forming part of the file relating to national proceedings concerning the application of Article 101 TFEU, including access to documents made available under a leniency programme, by third parties who are not party to those proceedings with a view to bringing an action for damages against participants in an agreement or concerted practice is made subject solely to the consent of all the parties to those proceedings, without leaving any possibility for the national courts of weighing up the interests involved.

In exercising their powers for the purpose of applying national rules on the right of access by persons believing themselves to be adversely affected by a cartel to documents relating to national proceedings concerning that cartel, the national courts must be able, on a case-by-case basis, to weigh up the interest of the requesting party in obtaining access to those documents in order to prepare its action for damages, in particular in the light of other possibilities it may have, and the actual harmful consequences which may result from such access having regard to public interests or the legitimate interests of other parties, including the public interest relating to the effectiveness of leniency programmes.

(see paras 30, 34, 44-46, 49, operative part)