ddrg/super_eurlex huggingface dataset:
6

Article 4 of Directive 2003/109, entitled ‘Duration of residence’, is worded as follows: ‘1. Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application. 2. Periods of residence for the reasons referred to in Article 3(2)(e) and (f) shall not be taken into account for the purposes of calculating the period referred to in paragraph 1. Regarding the cases covered in Article 3(2)(a), where the third-country national concerned has acquired a title of residence which will enable him/her to be granted long-term resident status, only half of the periods of residence for study purposes or vocational training may be taken into account in the calculation of the period referred to in paragraph 1. 3. Periods of absence from the territory of the Member State concerned shall not interrupt the period referred to in paragraph 1 and shall be taken into account for its calculation where they are shorter than 6 consecutive months and do not exceed in total 10 months within the period referred to in paragraph 1. In cases of specific or exceptional reasons of a temporary nature and in accordance with their national law, Member States may accept that a longer period of absence than that which is referred to in the first subparagraph shall not interrupt the period referred to in paragraph 1. In such cases Member States shall not take into account the relevant period of absence in the calculation of the period referred to in paragraph 1. By way of derogation from the second subparagraph, Member States may take into account in the calculation of the total period referred to in paragraph 1 periods of absence relating to secondment for employment purposes, including the provision of cross-border services.’
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Keywords

Environment — Conservation of wild birds — Directive 2009/147 — Field of application — Species naturally occurring in the wild state in the European territory of the Union — Complete, effective protection necessary (European Parliament and Council Directive 2009/147, Art. 1) (see paras 23-25)

2. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see paras 27, 42)

3. Acts of the institutions — Directives — Implementation by Member States — Implementation by way of administrative practices — Insufficient (Art. 288(3) TFEU; European Parliament and Council Directive 2009/147) (see para. 48)

4. Environment — Conservation of wild birds — Directive 2009/147 — Transposition without legislative action — Limits — Management of a common heritage — Faithful transposition by the Member States necessary (European Parliament and Council Directive 2009/147) (see paras 56-58)

5. Environment — Conservation of wild birds — Directive 2009/147 — Implementation by Member States — Conditions for the grant of derogations from the prohibitions laid down in the directive (European Parliament and Council Directive 2009/147, Art. 9) (see paras 72, 73, 75, 78)
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Keywords

Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU; European Parliament and Council Directive 2000/60, Arts 13(1) to (3) and 6, 14(1)(c), and 15(1)) (see para. 13)

2. Member States — Obligations — Implementation of directives — Failure to fulfil obligations — National system pleaded as justification — Not permissible (Art. 258 TFEU) (see paras 14, 17)
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Summary



Keywords

Environment — Assessment of the effects of certain projects on the environment — Directive 2001/42 — Requirement for competent authorities to carry out an assessment of the effects of certain plans and programmes on the environment — Conditions — Risk of a significant effect on the site concerned

(European Parliament and Council Directive 2001/42, Art. 3(2)(b); Council Directives 79/409, Art 4(1) and (2), and 92/43, Arts 4(5), 6(3) and 7)

Summary

Article 3(2)(b) of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment must be interpreted as meaning that the obligation to make a particular plan subject to an environmental assessment depends on the preconditions requiring an assessment under Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2006/105, including the condition that the plan may have a significant effect on the site concerned, being met in respect of that plan. The examination carried out to determine whether that latter condition is fulfilled is necessarily limited to the question as to whether it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned.

(see para. 24, operative part)
The third subparagraph of Article 12(2) of Regulation No 874/2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration must be interpreted as meaning that, in a situation where the prior right concerned is a trade mark right, the words ‘licensees of prior rights’ do not refer to a person who has been authorised by the proprietor of the trade mark concerned solely to register, in his own name but on behalf of that proprietor, a domain name identical or similar to that trade mark, but without that person being authorised to use the trade mark commercially in a manner consistent with its functions.

Where the prior right is a trade mark right, that provision covers licensing contracts, in which the proprietor of the trade mark confers on the licensee, within the limits set by the clauses of the licensing contract, the right to use that mark for the purposes falling within the area of the exclusive rights conferred by that mark. By contrast, a contract by which the contractual partner of the proprietor of the trade mark right undertakes, in return for remuneration, to use reasonable efforts to file an application and obtain a registration for a .eu domain name is more akin to a contract for services under which that party carries out a particular activity in return for remuneration.

(see paras 47, 49, 53, operative part)
Article 13 of Directive 2002/20 on the authorisation of electronic communications networks and services must be interpreted as precluding the imposition of a fee for the right to install facilities on, over or under public or private property on operating undertakings which, without being proprietors of those facilities, use them to provide mobile telephony services.

First, it follows from the first indent of Article 11(1) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services that the rights to install facilities on, over or under public or private property are granted to an undertaking authorised to provide public communications networks, namely to one which is entitled to install the necessary facilities on, under or in the spaces above the ground.

Second, the terms ‘facilities’ and ‘install’ refer to the physical infrastructure enabling provision of electronic communications networks and services and to their physical installation on the public or private property concerned respectively.

Accordingly, the only person who may be charged the fee for the rights relating to the installation of facilities referred to in Article 13 of Directive 2002/20 is the holder of those rights, who is also the proprietor of the facilities installed on, over or under the public or private property concerned.

(see paras 31-33, 35, operative part 1)
The cultivation of genetically modified organisms such as the MON 810 maize varieties cannot be made subject to a national authorisation procedure when the use and marketing of those varieties are authorised pursuant to Article 20 of Regulation No 1829/2003 on genetically modified food and feed and those varieties have been accepted for inclusion in the common catalogue of varieties of agricultural plant species provided for in Directive 2002/53 on the common catalogue of varieties of agricultural plant species, as amended by Regulation No 1829/2003.

Regulation No 1829/2009 and Directive 2002/53 both seek to enable the free use and marketing of genetically modified organisms throughout the European Union, provided they are authorised in accordance with that regulation and accepted for inclusion in the common catalogue pursuant to that directive. Furthermore, having regard to recitals 9, 33 and 34 in the preamble to Regulation No 1829/2003 and Articles 4(4) and (5) and 7(4) of Directive 2002/53, the conditions imposed by those two acts, for authorisation or inclusion in the common catalogue respectively, cover the requirements for the protection of health and the environment.

(see paras 65, 66, 76, operative part)
Article 49 EC must be interpreted as not precluding legislation of a Member State which confers on local authorities a broad discretion in enabling them to refuse authorisation to open a casino, amusement arcade or bingo hall on grounds of ‘substantial impairment of the interests of the State and of the residents of the administrative area concerned’, provided that that legislation is genuinely intended to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner or to ensure the maintenance of public order and in so far as the competent authorities exercise their powers of discretion in a transparent manner, so that the impartiality of the authorisation procedures can be monitored, it being for the national court to determine whether those conditions are satisfied.

(see para. 48, operative part)
Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the leasing of immovable property and the supplies of services linked to that leasing, such as inter alia the supply of water, heating throughout the building, repair of the structure and machinery of the building, cleaning of the common parts, and the security of the building, may constitute a single supply from the point of view of value added tax. The fact that the lease gives the landlord the right to terminate it if the tenant fails to pay the service charges supports the view that there is a single supply, but does not necessarily constitute the decisive element for the purpose of assessing whether there is such a supply. On the other hand, the fact that those services could in principle be supplied by a third party does not allow the conclusion that they cannot constitute a single supply. It is for the referring court to determine whether, in the light of the interpretative guidance provided by the Court and having regard to the particular circumstances of the case, the transactions in question are so closely linked to each other that they must be regarded as constituting a single supply of the leasing of immovable property.

(see paras 8, 28, operative part)
Article 43 EC must be interpreted as meaning that where, under the national legislation of a Member State, the possibility of transferring, by means of group relief and to a resident company, losses sustained by the permanent establishment in that Member State of a non-resident company is subject to a condition that those losses cannot be used for the purposes of foreign taxation, and where the transfer of losses sustained in that Member State by a resident company is not subject to any equivalent condition, such provisions constitute a restriction on the freedom of a non-resident company to establish itself in another Member State.

Such a difference in treatment makes it less attractive for companies having their seat in other Member States to exercise the right to freedom of establishment through a branch. Further, the situation of a non-resident company with only a permanent establishment in the national territory and that of a resident company are, having regard to the objective of a tax regime concerning the transfer of losses, objectively comparable in so far as concerns the possibility of transferring by means of group relief losses sustained in that Member State to another company in that group.

Such a restriction cannot be justified by overriding reasons in the public interest based on the objective of preventing the double use of losses or the objective of preserving a balanced allocation of the power to impose taxes between Member States or by a combination of those two grounds.

In that regard, in relation to, first, the preservation of the allocation of the power to impose taxes between Member States, the power of the host Member State, on whose territory the economic activity giving rise to the losses of the permanent establishment is carried out, to impose taxes is not at all affected by the possibility of transferring, by group relief and to a resident company, the losses sustained by a permanent establishment situated in its territory, given that the power of that Member State to tax the profits (if any) arising from the activity, in its territory, of the permanent establishment is not affected.

In relation to, secondly, the risk of the double use of losses, that has no effect on the power of the Member State where the permanent establishment is situated to impose taxes. The losses transferred by the permanent establishment of a non-resident company in that Member State to a resident company can be linked, in any event, to that State’s power of to impose taxes. That power to impose taxes is not at all impaired by the fact that the losses transferred might also, in appropriate circumstances, be used in another Member State.

(see paras 16, 19, 20, 25, 26, 30, 31, 35, operative part 1, 2)
Articles 44(2) and 47(1)(b) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that a contracting authority may require a minimum level of economic and financial standing by reference to one or more particular aspects of the balance sheet, provided that those aspects are such as to provide information on such standing of an economic operator and that that level is adapted to the size of the contract concerned in that it constitutes objectively a positive indication of the existence of a sufficient economic and financial basis for the performance of that contract, without, however, going beyond what is reasonably necessary for that purpose. The requirement of a minimum level of economic and financial standing cannot, in principle, be disregarded solely because that level relates to an aspect of the balance sheet regarding which there may be differences between the legislations of the different Member States.

Article 47 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that, where an economic operator cannot meet a minimum level of economic and financial standing consisting in a requirement that the profit/loss item in the balance sheet of candidates or tenderers should not be negative for more than one of the last three completed financial years because of an agreement under which that economic operator systematically transfers its profits to its parent company, that operator has no other option, in order to meet that minimum capacity level, than to rely on the capacities of another entity, in accordance with Article 47(2). It is irrelevant in that regard that the legislation of the Member State of establishment of that economic operator and that of the Member State of establishment of the contracting authority differ in that such an agreement is authorised without limitation by the legislation of the first Member State whereas, under the legislation of the second, it would only be authorised on condition that the transfer of profits does not have the effect of making the profit/loss item in the balance sheet negative.

(see para. 39, operative part 2)
Article 217(2) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 82/97, must be interpreted as meaning that, since that article does not lay down any practical arrangements for ‘entry in the accounts’ within the meaning of that provision, it leaves the Member States free to determine the practical arrangements for the taking into account of sums resulting from a customs debt, without there being any obligation on them to set out in their national legislation the arrangements for the implementation of such an entry. An entry in the accounts must be made in a way which ensures that the competent customs authorities enter the exact amount of the import duty or export duty resulting from a customs debt in the accounting records or on any other equivalent medium, so that, inter alia, the entry in the accounts of the amounts concerned may be established with certainty, including with regard to the person liable.

Pursuant to Article 221(1) of the Customs Code, the communication of the amount of duty to be recovered must have been preceded by the entry in the accounts of that amount by the customs authorities of the Member State concerned and, if it has not been entered in the accounts in accordance with Article 217(1) of the Customs Code, that amount may not be recovered by those authorities, which however remain entitled to proceed with a new communication of that amount, in accordance with the conditions laid down by Article 221(1) of the Customs Code and the limitation rules in force at the time the customs debt was incurred.

(see paras 23, 24, 27, 29, 30, operative part)
Point (3) of Article 5 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 an action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict falls within the scope of that provision.

It is true that that action for a negative declaration entails a reversal of the normal roles in matters relating to tort or delict, since, in such an action, the claimant is the party against whom a claim based on a tort or delict might be made, while the defendant is the party whom that tort or delict may have adversely affected. However, that reversal of roles is not such as to exclude an action for a negative declaration from the scope of point (3) of Article 5 Regulation No 44/2001. The objectives, pursued by that provision of ensuring that the court with jurisdiction is foreseeable and of preserving legal certainty are not connected either to the allocation of the respective roles of claimant and defendant or to the protection of either. Moreover, even though there is a difference between, on the one hand, the interests of the applicant in an action for a negative declaration and, on the other, the interests of the applicant in proceedings seeking to have the defendant held liable for causing loss and ordered to pay damages, in both cases, the examination undertaken by the court seised essentially relates to the same matters of law and fact.

(see paras 43-45, 48, 55, operative part)
Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, read in conjunction with Article 3(3) of that convention, must be interpreted as meaning that the right to compensation and the limits to a carrier’s liability in the event of loss of baggage apply also to a passenger who claims that compensation by virtue of the loss of baggage checked in in another passenger’s name, provided that that lost baggage did in fact contain the first passenger’s items.

Consequently, not only a passenger who has checked in his own baggage in person, but also a passenger whose items were placed in the baggage checked in by another passenger on the same flight, is granted an individual right to compensation by the Montreal Convention where those items are lost, in accordance with the conditions laid down in the first sentence of Article 17(2) of that convention and within the limits laid down in Article 22(2) thereof.

However, for the purposes of the compensation provided for under Article 22(2) of the Montreal Convention, it is for the passengers concerned, subject to review by the national court, to establish to the requisite legal standard the contents of the lost baggage and the fact that the baggage checked in in another passenger’s name did in fact contain items belonging to another passenger on the same flight. In that connection, the national court may have regard to the fact that those passengers are members of the same family, that they bought their tickets together or that they checked in at the same time.

(see paras 27, 35, 36, operative part)
In order to be truly effective, the right of workers to be engaged and employed without discrimination, as laid down in Article 45 TFEU, necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers. While it is established that the rights to freedom of movement laid down in Article 45 TFEU benefit workers, including those seeking employment, there is nothing in the wording of that article to indicate that those rights may not be relied upon by others. In those circumstances, an employer of a frontier worker who comes within the scope of that article may rely on the rights directly conferred on workers.

Article 45 TFEU must be interpreted as precluding legislation of a Member State which makes the grant to employers of a subsidy for the recruitment of unemployed persons aged over 45 years subject to the condition that the unemployed person recruited has been registered as a job seeker in that same Member State, in the case where such registration is subject to a condition of residence in the national territory, this being a matter for the referring court to verify.

The discretion which the Member States enjoy in matters of social policy may not have the effect of undermining the rights granted to individuals by the Treaty provisions in which their fundamental freedoms are enshrined.

In that regard, a condition of residence is, as a rule, inappropriate as regards migrant workers and frontier workers since, having participated in the employment market of a Member State, they have in principle established a sufficient link of integration with the society of that State, allowing them to benefit from the principle of equal treatment, as compared with, respectively, national workers and resident workers. The link of integration arises, in particular, from the fact that, through the taxes which they pay in the host Member State by virtue of their employment there, migrant and frontier workers also contribute to the financing of the social policies of that State.

(see paras 42, 52, 53, 55, operative part)