ddrg/super_eurlex huggingface dataset:
36

In those circumstances, the Administrativen sad Sofia‑grad decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Do the provisions of the Europe Agreement and particularly of the EU-Bulgaria Association Council decisions apply to State aid that was granted prior to the accession of the Republic of Bulgaria to the European Union pursuant to the provisions of the Europe Agreement and, in particular, pursuant to Article 9(4) of Protocol 2 [to the Europe Agreement] where an assessment of the incompatibility of State aid granted in that way takes place after the date of accession of the Republic of Bulgaria to the European Union? If the answer to this question is in the affirmative the following interpretation is required: (a) Is the second paragraph of Article 3 of the [Additional Protocol] to be interpreted as meaning that only the European Commission may establish whether the restructuring programme and the plans have been fully implemented in accordance with Article 2 of the Additional Protocol and are in compliance with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the answer to this question is in the negative the following interpretation is required: (b) Is the third paragraph of Article 3 of the [Additional Protocol] to be interpreted as meaning that the competent national authority of the Republic of Bulgaria has the right to adopt a decision on the recovery of State aid that does not comply with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the Court of Justice should answer this question in the negative an interpretation of the following question is requested: 2. Is the provision in Article 1 of Title 2 of Annex V [to the Act of Accession] relating to competition rules to be interpreted as meaning that the State aid in question constitutes “new aid” within the meaning of Title 2 of that Annex? If so, are the provisions of Articles 107 [TFEU] and 108 TFEU (Articles 87 EC and 88 EC) on State aid and the provisions of Regulation No 659/1999 to apply in such a case to such “new aid”? (a) If the answer to this question is in the negative … are the provisions in … Annex V to the Act of Accession to be interpreted as meaning that the competent national authorities cannot take steps to recover State aid such as that in the main proceedings before the Commission has taken a decision by which the State aid at issue is declared incompatible with the common market? (b) If the answer given to the previous question is in the affirmative: is the Commission decision of December 2009 ... to be considered a negative decision on unlawful aid within the meaning of Article 14 of Regulation No 659/1999?’
3

The first to sixth recitals in the preamble to Directive 90/434 state: ‘… mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States … ought not to be hampered by restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States; … to that end it is necessary to introduce with respect to such operations tax rules which are neutral from the point of view of competition, in order to allow enterprises to adapt to the requirements of the common market, to increase their productivity and to improve their competitive strength at the international level; … tax provisions disadvantage such operations, in comparison with those concerning companies of the same Member State; … it is necessary to remove such disadvantages; … it is not possible to attain this objective by an extension at the Community level of the systems presently in force in the Member States, since differences between these systems tend to produce distortions; … only a common tax system is able to provide a satisfactory solution in this respect; … the common tax system ought to avoid the imposition of tax in connection with mergers, divisions, transfers of assets or exchanges of shares, while at the same time safeguarding the financial interests of the State of the transferring or acquired company; … in respect of mergers, divisions or transfers of assets, such operations normally result either in the transformation of the transferring company into a permanent establishment of the company receiving the assets or in the assets becoming connected with a permanent establishment of the latter company; … the system of deferral of the taxation of the capital gains relating to the assets transferred until their actual disposal, applied to such of those assets as are transferred to that permanent establishment, permits exemption from taxation of the corresponding capital gains, while at the same time ensuring their ultimate taxation by the State of the transferring company at the date of their disposal’.
3

Recitals 2 to 4, 6 and 10 in the preamble to Regulation No 207/2009 state: ‘(2) It is desirable to promote throughout the Community a harmonious development of economic activities and a continuous and balanced expansion by completing an internal market which functions properly and offers conditions which are similar to those obtaining in a national market. In order to create a market of this kind and make it increasingly a single market, not only must barriers to free movement of goods and services be removed and arrangements be instituted which ensure that competition is not distorted, but, in addition, legal conditions must be created which enable undertakings to adapt their activities to the scale of the Community, whether in manufacturing and distributing goods or in providing services. For those purposes, trade marks enabling the products and services of undertakings to be distinguished by identical means throughout the entire Community, regardless of frontiers, should feature amongst the legal instruments which undertakings have at their disposal. (3) For the purpose of pursuing the Community’s said objectives it would appear necessary to provide for Community arrangements for trade marks whereby undertakings can by means of one procedural system obtain Community trade marks to which uniform protection is given and which produce their effects throughout the entire area of the Community. The principle of the unitary character of the Community trade mark thus stated should apply unless otherwise provided for in this Regulation. (4) The barrier of territoriality of the rights conferred on proprietors of trade marks by the laws of the Member States cannot be removed by approximation of laws. In order to open up unrestricted economic activity in the whole of the internal market for the benefit of undertakings, trade marks should be created which are governed by a uniform Community law directly applicable in all Member States. ... (6) The Community law relating to trade marks nevertheless does not replace the laws of the Member States on trade marks. It would not in fact appear to be justified to require undertakings to apply for registration of their trade marks as Community trade marks. National trade marks continue to be necessary for those undertakings which do not want protection of their trade marks at Community level. ... (10) There is no justification for protecting Community trade marks or, as against them, any trade mark which has been registered before them, except where the trade marks are actually used.’
6

Pursuant to Article 11(2), (3) and (4) of the basic regulation, in relation to the review procedure: ‘2. A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon request made by or on behalf of Community producers, and the measure shall remain in force pending the outcome of such review … 3. The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the [Union] producers which contains sufficient evidence substantiating the need for such an interim review. An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury. In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In these respects, account shall be taken in the final determination of all relevant and duly documented evidence. 4. A review shall also be carried out for the purpose of determining individual margins of dumping for new exporters in the exporting country in question which have not exported the product during the period of investigation on which the measures were based. The review shall be initiated where a new exporter or producer can show that it is not related to any of the exporters or producers in the exporting country which are subject to the anti-dumping measures on the product, and that it has actually exported to the [Union] following the abovementioned investigation period, or where it can demonstrate that it has entered into an irrevocable contractual obligation to export a significant quantity to the [Union]. …’
6

Under the heading ‘Access to justice’, Article 9 of the Aarhus Convention states: ‘… 2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned: (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. ... 3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. 4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. ... 5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’
3

Article 16 of the Mergers Directive, entitled ‘Employee participation’, provides: ‘1. Without prejudice to paragraph 2, the company resulting from the cross-border merger shall be subject to the rules in force concerning employee participation, if any, in the Member State where it has its registered office. 2. However, the rules in force concerning employee participation, if any, in the Member State where the company resulting from the cross-border merger has its registered office shall not apply, where at least one of the merging companies has, in the six months before the publication of the draft terms of the cross-border merger as referred to in Article 6, an average number of employees that exceeds 500 and is operating under an employee participation system within the meaning of Article 2(k) of the [SE] Directive, or where the national law applicable to the company resulting from the cross-border merger does not: (a) provide for at least the same level of employee participation as operated in the relevant merging companies, measured by reference to the proportion of employee representatives amongst the members of the administrative or supervisory organ or their committees or of the management group which covers the profit units of the company, subject to employee representation, or (b) provide for employees of establishments of the company resulting from the cross-border merger that are situated in other Member States the same entitlement to exercise participation rights as is enjoyed by those employees employed in the Member State where the company resulting from the cross-border merger has its registered office. 3. In the cases referred to in paragraph 2, the participation of employees in the company resulting from the cross-border merger and their involvement in the definition of such rights shall be regulated by the Member States, mutatis mutandis and subject to paragraphs 4 to 7 below, in accordance with the principles and procedures laid down in Article 12(2), (3) and (4) of Regulation No 2157/2001 and the following provisions of [the SE Directive]: ... (h) part 3 of the Annex, point (b). ... 5. The extension of participation rights to employees of the company resulting from the cross-border merger employed in other Member States, referred to in paragraph 2(b), shall not entail any obligation for Member States which choose to do so to take those employees into account when calculating the size of workforce thresholds giving rise to participation rights under national law. …’
139

At paragraphs 211 to 213 of the judgment under appeal the General Court made the following observations, in particular: ‘211 Moreover, it must be recalled that the competent public authorities are obliged to maintain a high level of protection of human health even though that level does not have to be the highest possible … . Article 24a of Regulation No 999/2001 recalls that obligation in the context of the powers conferred on the Commission to amend the annexes to Regulation No 999/2001 by making the adoption of decisions taken in the context of that regulation subject to the condition that the level of protection of human health ensured in the Community is maintained or, if scientifically justified, increased. That principle requires the public authority to manage a risk exceeding the level of risk deemed acceptable for society in such a way as to contain it at that level … . Risk management through the adoption of appropriate measures to ensure a high level of protection of public health, safety and the environment therefore corresponds to all the actions undertaken by an institution in order to cope with a risk in such a way as to contain it at an acceptable level. 212 Furthermore, it is for the competent authorities to review the provisional measures which they have adopted in accordance with the precautionary principle within a reasonable period. It has been held that, when new elements change the perception of a risk or show that that risk can be contained by measures less restrictive than the existing measures, it is for the institutions, and in particular the Commission, to bring about an amendment to the rules in the light of the new information … . Thus, the relaxation of preventive measures adopted previously must be justified by new elements changing the assessment of the risk in question. 213 When those new elements, such as new knowledge or new scientific discoveries, justify a relaxation of a preventive measure, they change the specific content of the obligation for the public authorities to maintain consistently a high level of protection of human health. Indeed, those new elements may change the perception of the risk and the level of risk which are deemed acceptable by society. The legality of the adoption of a less restrictive preventive measure is not assessed on the basis of the level of risk deemed acceptable which was taken into account for the adoption of the initial preventive measures. Indeed, the adoption of initial preventive measures in order to reduce the risk to a level deemed acceptable takes place on the basis of a risk assessment and, in particular, of the determination of the level of risk deemed acceptable for society. If new elements change that risk assessment, the legality of the adoption of less restrictive preventive measures must be assessed in the light of those new elements and not in the light of the elements which determined the risk assessment in the context of the adoption of the initial preventive measures. It is only when that new level of risk exceeds the level of risk deemed acceptable for society that a breach of the precautionary principle must be found by the Court.’
5

Article 9 of the Aarhus Convention, headed ‘Access to justice’, states: ‘1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under Article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law. In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law. ... 2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned: (a) having a sufficient interest or, alternatively, (b) maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. ... 3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. 4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. ... 5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’
Article 6(2) and (5) of Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications) must be interpreted as authorising a provider of public communications networks and of publicly-accessible electronic communications services to pass traffic data to the assignee of its claims for payment in respect of the supply of telecommunications services for the purpose of recovery of those claims, and as authorising that assignee to process those data on condition, first, that it acts under the authority of the service provider as regards the processing of those data and, second, that that assignee confines itself to processing the traffic data necessary for the purposes of recovering the claims assigned.

An assignee of the claims for payments of a service provider of public electronic communications networks is deemed to act under the authority of the service provider, within the meaning of Article 6(5) of Directive 2002/58, concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications), where, for the processing of traffic data, it acts exclusively on the instructions and under the control of the service provider. In particular, the contract concluded between them must contain provisions capable of guaranteeing the lawful processing, by the assignee, of the traffic data and enabling the service provider to ensure, at all times, that the assignee is complying with those provisions.

In so far as Article 6(2) and (5) of Directive 2002/58 contains an exception to the confidentiality of communications, laid down in Article 5(1) of that directive, it must be interpreted strictly. Moreover the aim of Article 6(5) is to ensure that the externalisation of the recovery of claims for payment, by restricting it to persons acting under the control of the service supplier, does not affect the level of protection of personal data enjoyed by the user.

(see paras 23, 26, 30, operative part)