ddrg/super_eurlex huggingface dataset:
Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it does not allow the courts of the place where a harmful event occurred which is imputed to one of the presumed perpetrators of damage, who is not a party to the dispute, to take jurisdiction over another presumed perpetrator of that damage who has not acted within the jurisdiction of the court seised.

In so far as the jurisdiction of the court of the place where the harmful event occurred or may occur constitutes a rule of special jurisdiction, it must be interpreted restrictively and cannot give rise to an interpretation going beyond the cases expressly envisaged by Regulation No 44/2001

Where only one among several presumed perpetrators of an alleged harmful act is sued before a court within whose jurisdiction he has not acted, the connecting factor based on the defendant’s act is, as a matter of principle, absent.

A solution which consists in making the identification of the connecting factor dependent on assessment criteria having their source in national substantive law would be contrary to the objective of legal certainty since, depending on the applicable law, the actions of a person which took place in a Member State other than that of the court seised might or might not be classified as the event giving rise to the damage for the purpose of the attribution of jurisdiction under Article 5(3) of Regulation No 44/2001. That solution would not allow the defendant reasonably to predict the court before which he might be sued. Moreover, in so far as it would lead to allowing the presumed perpetrator of a harmful act to be sued before the courts of a Member State within whose jurisdiction he has not acted, on the basis that the event giving rise to the damage occurred there, that solution would go beyond the situations expressly envisaged in that regulation and, consequently, would be contrary to its general scheme and objectives.

(see paras 24, 30, 35, 36, 41, operative part)
Keywords

Summary



Keywords

1. Customs union — Common Customs Tariff — Tariff headings — Classification of goods — Criteria — Characteristics and objective properties

2. Customs union — Common Customs Tariff — Classification of goods — Criteria — Objective characteristics — Scope — Intended use of a product — Included

3. Customs union — Common Customs Tariff — Tariff headings — Product consisting of lysine sulphate and impurities resulting from the manufacturing process — Classification under heading 2309 of the Combined Nomenclature (Council Regulation No 2658/87, Annex I, position 2309)

4. Agriculture — Common organisation of the markets — Sugar — Grant of the production refund on certain products used in the chemical industry — Manufactured product not coming under the tariff heading indicated in the refund certificate — Repayment sought by the national customs authorities of a wrongly paid amount of production refunds already received — Refusal by those authorities to pay production refunds envisaged — Breach of principle of the protection of legitimate expectations — None

(Commission Regulation No 1265/2001)

Summary

1. See the text of the decision.

(see para. 27)

2. See the text of the decision.

(see para. 41)

3. The Combined Nomenclature listed in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that a product composed of lysine sulphate and impurities resulting from the manufacturing process must be classified under heading 2309 as a preparation of a kind used in animal feeding.

(see para. 45, operative part 1)

4. The principle of the protection of legitimate expectations must be interpreted as meaning that it does not preclude the national customs authorities from, first, seeking repayment of a wrongly paid amount of lysine sulphate production refunds that the producer has already received and, second, refusing to pay production refunds on that product which those authorities had given undertakings to that producer to pay.

The principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of EU law; nor can the conduct of a national authority responsible for applying EU law, which acts in breach of that law, give rise to a legitimate expectation on the part of a trader of beneficial treatment contrary to EU law.

A trader may rely on a legitimate expectation of payment of a production refund only if the product manufactured by him is to be classified under the heading or in the chapter of the Combined Nomenclature indicated in the refund certificate.

(see paras 52, 54, 57, operative part 2)
Regulation No 1931/2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention must be interpreted as meaning that the holder of a local border traffic permit granted under the special local border traffic regime established by that regulation must be able, within the limits laid down in that regulation and in the bilateral agreement concluded for its implementation between the third country of which he is a national and the neighbouring Member State, to move freely within the border area for a period of three months if his stay is uninterrupted and to have a new right to a three-month stay each time that his stay is interrupted.

Both the wording and the spirit of Regulation No 1931/2006 demand that its provisions be given an autonomous interpretation and not be interpreted in the light of the Schengen acquis. Article 5 of the regulation leaves to bilateral agreements the task of determining the maximum permissible duration ‘of each uninterrupted stay’, subject to the three-month limit. That specification clearly distinguishes, as does the wording in which it is framed, between the limitation in time of local border traffic, on the one hand, and the ‘Schengen limitation’, which is wholly unrelated to uninterrupted stays, on the other. The fact that that limitation is set at three months, just as it is under the Schengen acquis, cannot cast doubt on its special nature in relation to the ordinary rules in place for third-country nationals who are not subject to visa requirements, since there is nothing in Regulation No 1931/2006 to suggest that those three months must fall within one and the same six-month period.

Moreover, the European Union legislature intended to put rules in place for local border traffic which derogate from Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders. The purpose of those rules is to enable the residents of the border areas concerned – while, at the same time, taking account of local, current and historical realities – to cross the external land borders of the European Union for legitimate economic, social, cultural or family reasons, and to do so easily – that is to say, without excessive administrative constraints – and frequently, even regularly.

(see paras 23, 24, 26, operative part 1)
Where the employee of an insurance undertaking pursues insurance mediation activities independently of the relationship of subordination by which he is bound to the undertaking, he should not, in principle, be regarded as acting under the responsibility of that undertaking and should therefore be regarded as acting in a personal capacity as an insurance intermediary within the meaning of Article 2(5) of Directive 2002/92 and, as a consequence, he must meet the requirements laid down in Article 4 of the directive. The fact that the insurance undertaking supervises the intermediary’s activities is not sufficient to exempt such a person from the obligation to meet the professional requirements laid down in the directive.

The second subparagraph of Article 2(3), in conjunction with Article 4(1), of Directive 2002/92 on insurance mediation must be interpreted as precluding an employee of an insurance undertaking who does not possess the qualifications required under the latter provision from pursuing — on an incidental basis and not as his main professional activity — the activity of insurance mediation where such an employee does not act as a subordinate of that undertaking, even though the latter in any event supervises that person’s activities.

Directive 2002/92 on insurance mediation pursues a dual objective, namely, on the one hand, the completion and proper functioning of the single market in insurance by removing obstacles to freedom of establishment and freedom to provide services and, on the other, the enhancement of consumer protection in this field.

Any interpretation which permits a certain category of persons to offer mediation services even though such persons do not meet the requirements laid down by Article 4(1) of Directive 2002/92 for the provision of such services would undermine that dual purpose. First, such an interpretation of Directive 2002/92 would give rise to significant differences between intermediaries acting on the single market in insurance, since intermediaries could engage in mediation activities for the same types of contract irrespective of whether or not they met those requirements. Furthermore, that interpretation runs counter to the objective of ensuring equal treatment of all categories of insurance intermediaries. Second, it would not be possible on the basis of such an interpretation to ensure a high level of protection for consumers on the insurance market, namely insurance policyholders. The employees of an insurance undertaking who are engaged in the direct sale of insurance services within that undertaking cannot, in any event, be regarded as possessing the appropriate knowledge and skills required for pursing, on an individual basis, the activity of insurance mediation and thus as being able to guarantee the quality of such mediation services. Nor can it be assumed that, in the absence of such knowledge and skills, such employees will be able to provide their customers with the information set out in Article 12 of Directive 2002/92 when concluding, amending or renewing customers’ insurance contacts.

(see paras 27-30)
Case C‑281/11

European Commission

v

Republic of Poland

‛Failure of a Member State to fulfil obligations — Contained use of genetically modified micro-organisms — Directive 2009/41/EC — Incorrect and incomplete transposition’

Summary — Judgment of the Court (Fifth Chamber), 19 December 2013

Action for failure to fulfil obligations — Subject-matter of the dispute — Determination during the pre-litigation procedure — Adaptation following a change in EU law — Lawfulness — Conditions (Art. 258 TFEU)

Action for failure to fulfil obligations — Subject-matter of the dispute — Determination during the pre-litigation procedure — Initial complaints set out in greater detail in the application instituting proceedings — Lawfulness (Art. 258 TFEU)

Acts of the institutions — Directives — Implementation by the Member States — Transposition of a directive without formal and verbatim incorporation of its provisions — Lawfulness — Conditions — Existence of a general legal context ensuring the full application of the directive (European Parliament and Council Directive 2009/41, Art. 2(a), (b), (d) and (e))

Acts of the institutions — Directives — Implementation by the Member States — Need for clear and precise transposition — Directive 2009/41 — Contained use of genetically modified micro-organisms — Definition of the term ‘accident’ which is broader than that provided for under the directive — Lawfulness (European Parliament and Council Directive 2009/41, Arts 2(d) and 15)

Acts of the institutions — Directives — Implementation by the Member States — Need for full transposition into national law — Directive 2009/41 — Contained use of genetically modified micro-organisms — Competent authority for the implementation of the national measures adopted in application of the directive — Powers (European Parliament and Council Directive 2009/41, Art. 10(3))

Acts of the institutions — Directives — Implementation by the Member States — Inadequacy of mere administrative practices or of an interpretation, by national courts, of the provisions of domestic law in accordance with those of a directive (European Parliament and Council Directive 2009/41, Art. 3(3))

Action for failure to fulfil obligations — Application initiating proceedings — Statement of subject-matter and pleas in law — Formal requirements — Unambiguous wording of the form of order sought by the applicant — Absolute bar to admissibility (Art. 258 TFEU; Rules of Procedure of the Court of Justice, Art. 38(1))

Acts of the institutions — Directives — Implementation by the Member States — Conditions — Directive 2009/41 — Contained use of genetically modified micro-organisms — Determination of the duration of the public inquiries or consultations — Requirement to comply with EU law (European Parliament and Council Directive 2009/41, Art. 10(4)(b))
With regard to a request for access to all the documents in the administrative file relating to the pre-litigation stage of an infringement procedure under Article 226 EC, first of all, infringement procedures are regarded, in the first sentence of Article 6(1) of Regulation No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, as a type of procedure which, as such, has characteristics precluding full transparency being granted in that field and which therefore has a special position within the system of access to documents. EU law, in particular Article 226 EC, with regard to infringement proceedings, does not provide for the right for an individual to consult the file, even if the procedure has been brought about by that individual’s complaint. Furthermore, a complainant in the context of an infringement procedure does not have the right to require the Commission to take a specific position and to bring an action against its refusal to take action against a Member State.

Moreover, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under EU law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission. The disclosure of the documents concerning an infringement procedure during its pre-litigation stage would, in addition, be likely to change the nature and progress of that procedure, given that, in those circumstances, it could prove even more difficult to begin a process of negotiation and to reach an agreement between the Commission and the Member State concerned putting an end to the infringement alleged, in order to enable EU law to be respected and to avoid legal proceedings.

Finally, the documents relating to the pre-litigation stage of an infringement procedure constitute a single category of documents for the purposes of applying the abovementioned general presumption.

Accordingly, it can be presumed that the disclosure such documents risks altering the nature of that procedure and changing the way it proceeds and, accordingly, that disclosure would in principle undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. Nevertheless, that general presumption does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001.

(see paras 55, 59, 60, 62-66)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Composite trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 71, 72)

2. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the facts put before the General Court — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 79, 80)

Subject of the case

Re:

Appeal against the judgment of the General Court (Sixth Chamber) of 6 October 2011 in Case T-176/10 SEVEN v OHIM — SEVEN FOR ALL MANKIND, by which that Court annulled Decision R 1514/2008-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 28 January 2010 rejecting the action against the decision annulling the decision of the Opposition Division which rejected in part the opposition filed by the owner of the Community and international figurative marks containing the word element ‘SEVEN’ in respect of goods within Classes 3, 9, 12, 14, 15, 16, 18, 20, 25 and 28, against the registration of the word mark ‘SEVEN FOR ALL MANKIND’ in respect of goods within Classes 14 and 18 — Interpretation and application of Article 8(1)(b) of Regulation No 207/2009 — Factors to be taken into account when assessing the similarity of the signs.

Operative part

Operative part

The Court:

1. Dismisses the appeal;

2. Orders Seven for all mankind LLC to bear its own costs and to pay those incurred by Seven SpA;

3. Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs.
Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, is applicable to a situation in which a first Member State requires an air carrier holding an operating licence issued by a second Member State, in accordance with Regulation No 1008/2008 on common rules for the operation of air services in the Community, to obtain an authorisation to enter the airspace of the first Member State to operate private flights in non-scheduled traffic from a third country to that first Member State, although such an authorisation is not required for air carriers holding an operating licence issued by that first Member State.

Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, must be interpreted as precluding legislation of a first Member State which requires, on pain of a fine, an air carrier holding an operating licence issued by a second Member State to obtain an authorisation to enter the airspace of the first Member State to operate private flights in non-scheduled traffic from a third country to that first Member State, although such an authorisation is not required for air carriers holding an operating licence issued by that first Member State, and which makes the grant of that authorisation subject to production of a declaration confirming that the air carriers holding an operating licence issued by that first Member State are either not willing to operate those flights or are prevented from operating them.

Such legislation establishes a distinguishing criterion which in fact leads to the same result as a criterion based on nationality. In so far as, in accordance with Article 4(a) of Regulation No 1008/2008 on common rules for the operation of air services in the Community, the operating licence is issued by the competent authority of the Member State in which an air carrier has its principal place of business within the meaning of Article 2, point 26, of that regulation, such legislation in practice places at a disadvantage only air carriers with their seat in another Member State.

The same is also true, a fortiori, of legislation of a first Member State which requires only those air carriers holding an operating licence issued by another Member State, in order to be granted an authorisation to enter the airspace of the first Member State in respect of flights from third countries, to produce a non-availability declaration confirming that the air carriers holding an operating licence issued by the first Member State are either not willing to operate those flights or are prevented from operating them.

Consequently, such legislation, which cannot be justified by the objectives of protection of the national economy and of safety, constitutes discrimination on grounds of nationality, aggravated by the fine imposed in the event of failure to comply therewith.

(see paras 65-67, 70-77, operative part 2)
5

Article 17 of the Sixth Directive, which governs the origin and scope of the right to deduct, provides in paragraphs 2 and 5: ‘2. In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay: (a) [VAT] due or paid in respect of goods or services supplied or to be supplied to him by another taxable person; (b) [VAT] due or paid in respect of imported goods; (c) [VAT] due under Articles 5(7)(a) and 6(3). ... 5. As regards goods and services to be used by a taxable person both for transactions covered by paragraphs 2 and 3, in respect of which [VAT] is deductible, and for transactions in respect of which [VAT] is not deductible, only such proportion of the [VAT] shall be deductible as is attributable to the former transactions. This proportion shall be determined, in accordance with Article 19, for all the transactions carried out by the taxable person. However, Member States may: (a) authorise the taxable person to determine a proportion for each sector of his business, provided that separate accounts are kept for each sector; (b) compel the taxable person to determine a proportion for each sector of his business and to keep separate accounts for each sector; (c) authorise or compel the taxable person to make the deduction on the basis of the use of all or part of the goods and services; (d) authorise or compel the taxable person to make the deduction in accordance with the rule laid down in the first subparagraph, in respect of all goods and services used for all transactions referred to therein; (e) provide that where the [VAT] which is not deductible by the taxable person is insignificant it shall be treated as nil. ...’
39

By adopting the ÜLTS on 7 April 2004, the Republic of Estonia implemented the obligations under Regulation No 1972/2003 by introducing a charge on surplus stocks of agricultural products and defining how that charge was to be calculated. The ÜLTS thus creates obligations for individuals in Estonia, notwithstanding the fact that Regulation No 1972/2003 cannot be enforced against them before they have had an opportunity to learn of it through its proper publication in the Official Journal of the European Union in the language of that Member State. Those obligations include that of declaring to the Põllumajandusministeerium, by 15 May 2004 at the latest, the stocks of certain agricultural products in their possession on 1 May 2004. It is not disputed that the obligation to pay the charge on surplus stocks is thus determined in accordance with the stocks of products held at that date. The date on which the assessment notice is issued therefore has no effect on the chargeable event. Consequently, in the case before the referring court, it cannot be concluded from the fact that the assessment notice of 29 March 2007 was issued after Regulations Nos 1789/2003 and 1972/2003 had been duly published in Estonian in the Official Journal of the European Union that, at the date on which the ÜLTS entered into force, those regulations could be enforced against Pimix.