ddrg/super_eurlex huggingface dataset:
The amendments made to Article 45(1) and to Article 52 of the Staff Regulations, as well as to Article 4 of Annex IVa to the Staff Regulations, by Article 1(27), (32) and (64) of Regulation No 1023/2013 do not affect the principle of the acquired rights of officials and other servants of the European Union resulting, according to the applicant, from the agreement on the 2004 reform concluded between the Council and the trade unions and staff associations as part of the adoption of Regulation No 723/2004.

In the first place, that agreement is concerned only with the 2004 reform and the effects of such an agreement cannot therefore be extended to all subsequent amendments made to the Staff Regulations by the European Union legislature without depriving the latter of the opportunity to exercise the competence conferred on it by Article 336 TFEU.

Moreover, since the legal link between an official and the administration is based upon the Staff Regulations, the rights and obligations of officials may be altered at any time by the legislature.

In the second place, it is, after all, well established that amending legislation, such as the regulations amending the Staff Regulations, applies, unless otherwise provided, to the future consequences of situations which arose under previous legislation. That is so except for situations originating and becoming definitive under the previous legislation, which create acquired rights. Thus, a right is considered to be acquired when the event giving rise to it occurred before the legislative amendment. However, that is not the case when the event creating the right did not take place under the legislation that has been amended.

(see paras 86-88, 91)
Judgment of the General Court (Sixth Chamber) of 13 July 2017 — Boomkwekerij van Rijn-de Bruyn v OCVV — Artevos (Oksana)

(Case T‑767/14)

(New varieties of plants — Community plant variety rights — Application for a Community plant variety right for the pear variety Oksana — Objections — Rejection of the application by the Board of Appeal of the CPVO — Article 10 of Regulation (EC) No 2100/94 — Novelty of the candidate variety — Lack of evidence)

1. Agriculture — Uniform legislation — Protection of plant varieties — Decisions of the CPVO or its Boards of Appeal — Judicial review — Scope — Limits (Council Regulation No 2100/94, Art. 73) (see paras 30, 69-71)

2. EU law — Principles — Rights of defence — Audi alteram partem rule — Scope — No need to hear the parties on each point of the legal assessment (Council Regulation No 2100/94, Art. 75) (see para. 40)

3. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Appeal brought against a decision of the Community Plant Variety Office and referred to the Board of Appeal — Investigation of the facts of the Court’s own motion (Council Regulation No 2100/94, Arts 54, 55 and 76) (see para. 73)

Re:

ACTION against the decision of the Board of Appeal of the CPVO of 2 July 2014 (Case A 007/2013) concerning the grant of a Community plant variety right in respect of pears of the Oksana variety.

Operative part

The Court:

1. Dismisses the action;
If a Member State relies on the private investor test during the administrative procedure, it must, where there is doubt, establish unequivocally and on the basis of objective and verifiable evidence that the measure implemented falls to be ascribed to the State acting as shareholder. That evidence must show clearly that, before or at the same time as conferring the economic advantage, the Member State concerned took the decision to make an investment, by means of the measure actually implemented, in the public undertaking. In that regard, it may be necessary to produce evidence showing that the decision is based on economic evaluations comparable to those which, in the circumstances, a rational private investor in a situation as close as possible to that of the Member State would have had carried out, before making the investment, in order to determine its future profitability.

By contrast, for the purposes of showing that, before or at the same time as conferring the advantage, the Member State took that decision as a shareholder, it is not enough to rely on economic evaluations made after the advantage was conferred, on a retrospective finding that the investment made by the Member State concerned was actually profitable, or on subsequent justifications of the course of action actually chosen. In order to examine whether or not the State has adopted the conduct of a prudent investor operating in a market economy, it is necessary to place oneself in the context of the period during which the financial support measures were taken in order to assess the economic rationality of the State's conduct, and thus to refrain from any assessment based on a later situation. That is especially so where the Commission is seeking to determine whether there has been State aid in relation to a measure which was not notified to it and which, at the time when the Commission carries out its examination, has already been implemented by the public body concerned.

(see paras 56, 57, 83, 86)
Although the Member States are not required to establish that they have an interest in bringing proceedings against the provisions the annulment of which is sought by them, the fact remains that, even when proceedings are brought before it by a Member State, the European Union judicature must find that there is no need to adjudicate on the action where the annulment sought is incapable of producing legal effects.

While it is true that an action for annulment brought against an act withdrawn by the body which adopted it in the course of proceedings becomes devoid of purpose, an action brought against an act vitiated by unlawfulness still has a purpose, if that illegality is liable to recur in the future in circumstances independent from the case in question. In that connection, as regards an action for annulment brought by a Member State against a provision of a Commission decision on State aid prohibiting the Member State from implementing an unlawful aid measure for beneficiaries, the fact that that measure has been annulled by a national court in the course of the proceedings does not deprive any annulment of that provision of any legal effect.

In the first place, in so far as the provision at issue has not been withdrawn and, therefore, has not disappeared with retroactive effect, it follows that, if the European Union judicature were to find that the dispute had become devoid of purpose and that there is no longer any need to adjudicate on the action because the annulment of that provision would have no legal effects, that provision would nevertheless remain part of the EU legal order. In the second place, the implementation in good faith by the Member States of the decisions adopted by the Commission in relation to State aid constitutes implementation of the principle of sincere cooperation laid down in Article 4(3) TEU and assumes that the Member States will make the necessary efforts to overcome any difficulties whilst fully observing the Treaty provisions, in particular the provisions on aid. Thus it follows from the principle of sincere cooperation that that Member State should itself refrain from any conduct which may constitute a circumvention of the prohibition laid down in the contested provision in the event that that provision were to remain in force. It follows that the annulment of that provision, if the action were to prove to be well founded, would not be devoid of legal effects.

Finally, to the extent that, in order to justify the legality of the contested provision, the Commission adopts a general and abstract position, the justifications for which are independent from the circumstances of the case, it follows that, if the European Union judicature were to come to the conclusion that the requirement laid down therein is unlawful, there would be a need to adjudicate on the dispute in question to prevent similar unlawfulness from recurring in the future.

(see paras 58, 59, 63, 64)
Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Restrictive measures taken having regard to the situation in Ukraine — Acts prohibiting all EU operators from certain types of financial transactions with entities with credit institutions established in Russia included in the lists of entities covered by restrictive measures — Action brought by a credit institution included in those lists — Admissibility

(Art. 263, 4th para. TFEU; Council Decision 2014/512/CFSP, Art. 1(1)(a), and Annex I; Council Regulation No 833/2014, Art. 5(1)(a) and Annex III)

(see paras 51-54, 56)
19

In paragraph 12.9.1 of the summary report, the Commission stated that the Slovenian system allowed farmers to add to their declaration of parcels long thin strips of meadow surrounding arable crops, in particular, so that the areas shown in the graphical units of agricultural land in a holding become eligible. According to the report, this could give rise to measuring inaccuracies and thus lead to the acceptance of parcels of less than the minimum surface area for an agricultural parcel, which in Slovenia is 0.1 hectare, in accordance with Article 14(4) of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18) and with Article 13(9) of Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (OJ 2009 L 316, p. 65). In order to illustrate the artificial shape of a graphical unit of agricultural land, the Commission referred to parcel number 127810, named ‘Medja’ (‘the Medja parcel’). The Commission also stated that the difficulty did not lie in the small parcels themselves, but in the unsuitable nature of the process followed to identify farmers who included land in their declaration in order to ensure that parcels not meeting the required minimum became eligible. According to the summary report, in view of the requirements of Article 30 of Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/20003 (OJ 2009 L 30, p. 16), and in the absence of an appropriate control procedure for finding and rejecting the said agricultural parcels, the Commission found that there was a risk to the agricultural funds in question. Finally, in paragraph 12.9.3 of the summary report, the Commission found that, given that the Slovenian authorities had not been able to prove their assertion that the long thin strips existed only in permanent pasture, all the graphical units of agricultural land relating to areas comprising between 0.10 and 0.15 hectare presented a risk.
89

Contrary to the explanation provided by the Commission at the hearing, it is sufficient to state, in any event, that it cannot be precluded that the failure to take that weakness into account or the maintenance of the sole finding of non-implementation of the standards ‘Minimum soil cover’ and‘Retention of landscape features’ for claim years 2008 and 2009 would have been capable of having an impact on the calculation of the total amount of the flat-rate correction, namely EUR 739393.95, which is disputed in the context of the present action. That conclusion is justified, in particular, in the light of the fact that, in the contested decision, concerning claim year 2009, owing to the non-implementation of those two — and only those two — GAEC standards, the Commission deemed it appropriate to apply flat-rate corrections of only 2% instead of 5%. Although the Commission stated as a ground for that approach a certain improvement by the Latvian authorities in the cross-compliance control system by comparison with claim year 2008 (see paragraphs 14 and 80 above), the Court is not in a position to assess, in the light of the evidence in the file, whether the failure to implement only those two GAEC standards in 2008 might have caused the Commission to arrive at a similar conclusion. In that respect, it should be borne in mind that, in regard to the common agricultural policy, the case-law recognises the EU institutions as having a discretionary power which reflects the responsibilities which the Treaty imposes on them (judgment of 3 May 2007, Spain v Commission, T‑219/04, EU:T:2007:121, paragraph 105). Likewise, in the present case, in the context of the implementation of Article 31(2) of Regulation No 1290/2005 and the relevant provisions of document AGRI‑2005-64043, the Commission has a broad discretion to evaluate the risk to the Funds owing to the existence of weaknesses in the cross-compliance control systems and to the complexity of the calculation operations — not disclosed to the Court — underlying the calculation of the various flat-rate corrections at issue set out on pages 69, 70, 73 and 74 of the contested decision. On that point, in reviewing the legality of acts under Article 263 TFEU, the Court cannot substitute its own economic assessment for that of the Commission (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 66, and of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89).
31

It should be recalled that the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged. Moreover, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraphs 93 and 94 and case-law cited).
61

The Board of Appeal found that, given inter alia the judgment of 13 November 2012 (T‑83/11 and T‑84/11, EU:T:2012:592), the concept of saturation in the reference sector could not be alleged or, at first glance, summarily established in the present case, as had sometimes been the case previously. It found that, given the importance and relevance of the legal principle of saturation of the state of the art, and in order to determine the individual character of a particular design, it was necessary, for the party relying on it, namely the applicant, to present sufficiently clear, precise and coherent evidence. In paragraph 41 of the contested decisions, it added that that evidence also had to be ‘current’. It observed that it had set a new time limit for the parties to present their arguments and evidence on this point. It found, in particular, that the documents lodged by the applicant in the attachments to its observations of 12 March 2014, including the extracts from one of its catalogues, extracts from a catalogue of the intervener, extracts taken from five catalogues from other undertakings in the sector (Tubes, Tubor, The Radiator Company, Metalform and Rondra) and an image comparing a radiator manufactured in accordance with one of the contested designs and one of the earlier designs, was not exhaustive, since the catalogue extracts showed only a few radiators for heating proposed by only five manufacturers, without showing the entire range of products proposed by those manufacturers or by others. The Board of Appeal further noted the very poor quality of certain reproductions of radiators, with the result that it was not in a position to assess correctly their lines and contours, and deplored the fact that the images had been taken from catalogues and not design registrations. Lastly, the Board of Appeal stated, in paragraph 46 of the contested decisions, that the catalogues in question were not dated or, if they were, were from 2004 and 2006. The Board of Appeal added that proof of the high level of density in the reference sector ought to have consisted of more coherent and precise evidence, such as other catalogues and documentary evidence relating to the products proposed by a large number of competing undertakings, statements by sectoral experts, statements from manufacturers’ or consumers’ associations, catalogues and price lists from large-scale distributors operating in the reference sector and, lastly, surveys and sectoral studies conducted by third-party undertakings. The Board of Appeal went on to conclude that all of the documentation produced was insufficient to establish the degree of saturation of the state of the art, much less corroborate the applicant’s statement to the effect that the sector was saturated. The Board of Appeal added that some of the designs represented in the evidence provided were even visually different from the other examples provided by the applicant.
84

It is true, admittedly, that Article 32(3) of Protocol 3 to the Association Agreement, concerning the definition of originating products and methods of administrative cooperation, does not specify in detail the way in which the exporting State must carry out a post-clearance check of the movement certificates. However, that provision assumes that, in the light of the financial consequences for the importer and of the facts of the present case, the Commission ought to have ensured that that inspection was carried out reliably and conscientiously, especially since, in paragraph 4 of the OLAF report, entitled ‘Conclusions’, the following is stated: ‘This case has shown, once again, that, in the context of complex fraud cases, it is more helpful and more effective not to rely solely on the applicable administrative procedures (as, in this case, the post-clearance check procedure) but to try to clarify all the aspects of the case in situ and in close cooperation with the competent authorities of the third country concerned. That approach has the effect, in particular, that the different countries learn the appropriate way to proceed in the context of such inspections and are aware of the information and documents necessary in order to shed light on and to prosecute offences in the Community, in order to be better capable of evaluating the needs of the Member States in case of similar events and to be able carry out their own inspections as a result.’
13

The operative part of the contested decision reads as follows: ‘Article 1 The non-collection of debt to the Ministry of Finance and letters of guarantee instead of pre-payment of additional tax in 2010, which Greece has implemented for [Larko], do not constitute State aid within the meaning of Article 107(1) of the Treaty. Article 2 The State aid amounting to EUR 135820 824.35 in the form of State guarantees to [Larko] in 2008, 2010 and 2011 and the State’s participation to the company’s capital increase in 2009, unlawfully granted by Greece in breach of Article 108(3) of the Treaty is incompatible with the internal market. Article 3 1. Greece shall recover the incompatible aid referred to in Article 2 from the beneficiary. 2. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiaries until their actual recovery. 3. The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004, as amended. 4. As regards measure [No] 3, Greece shall provide the exact date(s) when it provided its contribution to the 2009 share capital increase. 5. Greece shall cancel all outstanding payments of the aid referred to in Article 2 with effect from the date of adoption of this decision. Article 4 1. Recovery of the aid referred to in Article 2 shall be immediate and effective. 2. Greece shall ensure that this decision is implemented within four months following the date of notification of this decision. Article 5 1. Within two months following notification of this decision, Greece shall submit the following information: (a) the total amount (principal and recovery interests) to be recovered from the beneficiary; (b) a detailed description of the measures already taken and planned to comply with this decision; (c) documents demonstrating that the beneficiary has been ordered to repay the aid. 2. Greece shall keep the Commission informed of the progress of the national measures taken to implement this decision until recovery of the aid referred to in Article 2 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiary. Article 6 This Decision is addressed to the Hellenic Republic.’