ddrg/super_eurlex huggingface dataset:
Article 49 TFEU, in particular the requirement that the desired objective be achieved in a consistent manner, must be interpreted as precluding legislation which lays down, as an essential criterion for determining whether a need for the establishment of a new pharmacy exists, a rigid limit on the ‘people remaining to be served’, where the competent authorities cannot depart from that limit to take account of particular local geographical conditions.

It is true that national legislation setting out certain criteria to which the issue of licences to open new pharmacies is subject is generally appropriate for attaining the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality.

However, such legislation is appropriate for securing attainment of the objective sought only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner.

The uniform application, over the entire territory concerned, of conditions relating to the demographic density and the minimum distance between pharmacies, laid down by national legislation governing the opening of a new pharmacy, might well be unsuccessful, in certain circumstances, in ensuring adequate access to pharmaceutical services in areas which have certain special demographic features. More specifically, as regards the conditions relating to demographic density, the uniform application of those conditions, without any possibility of derogation, would lead, in certain rural areas where the population is generally dispersed and less numerous, to certain inhabitants concerned finding themselves beyond reasonable distance of a pharmacy and thus possibly being denied adequate access to pharmaceutical services. Accordingly, the application of the criterion relating to the number of ‘people remaining to be served’, gives rise to a danger that equal and adequate access may not be guaranteed for certain people living in rural and isolated regions.

(see paras 25, 39, 41, 42, 50, 51, operative part)
Article 8(3) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of that directive.

An internet service provider which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29. Such a conclusion is borne out by the objective pursued by Directive 2001/29. To exclude internet service providers from the scope of Article 8(3) of Directive 2001/29 would substantially diminish the protection of rightholders sought by that directive.

(see paras 32, 33, 40, operative part 1)
Keywords

Subject of the case

Operative part



Keywords

EU law — FEU Treaty — General and final provisions — Powers of the Member States to adopt measures intended to ensure national security — Production and trade in armaments — Specific procedural regime established by Article 348 TFEU — Distortion of competition caused by aid granted for non-military activities — Inapplicability (Arts 107 TFEU, 346(1)(b) TFEU and 348 TFEU) (see paras 16-22, 40-42)

2. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — 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 28-29)

3. State aid — Administrative procedure — Obligation of the Commission to give notice to the interested parties to submit their comments — Exclusion of those parties from rights of defence (Art. 108(2) TFEU) (see paras 54, 55)

Subject of the case

Re:

Appeal against the judgment of the General Court (Seventh Chamber) of 15 March 2012 in Case T-391/08 Ellinika Nafpigia v Commission dismissing an action for the partial annulment of Commission Decision C(2008) 3118 final of 2 July 2008 declaring incompatible with the common market aid granted by the Greek authorities in favour of Ellinika Nafpigia (Hellenic Shipyards ‘HSY’), in the context of amendments to the initial investment plan relating to the restructuring of that shipyard (State aid C 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005)).

Operative part

Operative part

The Court:

1. Dismisses the appeal;

2. Orders Ellinika Nafpigia AE to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Appeals — Interest in bringing proceedings — Condition — Appeal capable of procuring an advantage for the party bringing it — Commission decision to take no further action on a complaint regarding an infringement of the competition rules in the context of anti-doping legislation — Tennis player no longer playing professionally — Loss of interest in bringing proceedings — Vested and current interest capable of constituting the basis of a possible action or damages — No such interest (Art. 256 TFEU; Statute of the Court of Justice, Art. 56(2)) (see paras 15-18)

2. Appeals — Grounds — Mere repetition of the pleas and arguments put forward before the General Court — Error of law relied on not identified — Inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Arts 56 and 58(1); Rules of Procedure of the Court, Arts 168(1)(d) and 169) (see paras 22-25)

Subject of the case

Re:

Appeal brought against the order of the General Court (Third Chamber) of 26 March 2012 in Case T-508/09 Cañas v Commission , by which the General Court dismissed the application for annulment of Commission Decision C(2009)7809 of 12 October 2009 in Case COMP/39471, rejecting for lack of Community interest a complaint concerning an infringement of Articles 81 EC and 82 EC allegedly committed by the World Anti-doping Agency, the ATP Tour Inc. and by the International Council of Arbitration for Sport (ICAS) — Competition — Anti-doping legislation — Errors of law in the interpretation of the concept of ‘interest in bringing proceedings’ — Interest in bringing proceedings ceased to exist during the proceedings.

Operative part

Operative part:

The Court:

1. Dismisses the appeal;

2. Orders Mr Guillermo Cañas to pay the costs;

3. Orders the World Anti-doping Agency to bear its own costs.
Where national rules fall within the scope of EU law, and a reference has been made for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which is ensured by the Courts.

In that regard, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights henceforth guaranteed by the Charter. Thus, the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court.

Where it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter. The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded as ‘implementing [EU] law’ within the meaning of Article 51(1) of the Charter.

(see paras 33, 35, 36)
In the context of an application for a declaration of invalidity of a Community mark based on an earlier copyright protected by a rule of national law, the review by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and by the General Court must be conducted in the light of the requirement of ensuring the practical effect of Regulation No 40/94 on the Community trade mark, which is to protect the Community mark.

In view of the above, since the application of national law can lead to a finding that there is a ground for invalidation of a duly registered Community trade mark, it seems necessary for OHIM and the General Court to be able, before granting the application for a declaration of invalidity of such a mark, to ascertain the relevance of the evidence produced by the applicant with regard to the taking of evidence, which is incumbent upon it, concerning the content of that national law.

The review conducted by the competent OHIM bodies and by the General Court must also meet the requirements of the role performed by them in disputes relating to Community trade marks.

Where the competent OHIM bodies are called upon to rule, initially, on an application for a declaration of invalidity of a Community mark based on an earlier copyright protected by a rule of national law, their decision may have the effect of depriving the proprietor of the Community trade mark of a right that has been granted to him. The scope of such a decision necessarily implies that the authority which takes it is not limited to the role of mere validation of the national law as submitted by the applicant for a declaration of invalidity.

As regards the judicial review conducted, subsequently, by the General Court, that review must meet the requirements of the principle of effective judicial protection. In so far as the application of national law, in the procedural context in question, may have the effect of depriving the proprietor of a Community trade mark of his right, it is essential that that Court is not deprived, due to possible lacunae in the documents submitted as evidence of the applicable national law, of the real possibility of exercising an effective review. To that end, it must therefore be able to confirm, beyond the documents submitted, the content, the conditions of application and the scope of the rules of law relied upon by the applicant for a declaration of invalidity.

Consequently, in circumstances in which OHIM may be called upon to take account, in particular, of the national law of the Member State in which protection is given to the earlier mark on which the application for a declaration of invalidity is based, it must — of its own motion and by whatever means considered appropriate — obtain information about the national law of the Member State concerned, where such information is necessary for the purposes of assessing the applicability of a ground for invalidity relied on before it and, in particular, for the purposes of assessing the accuracy of the facts adduced or the probative value of the documents submitted.

(see paras 40-45)
The right of every citizen of the Union to move and reside freely within the territory of the Member States, guaranteed by Article 45(1) of the Charter of Fundamental Rights of the European Union, is the right guaranteed by Article 20(2), first subparagraph, (a) TFEU, which right, in accordance with the second subparagraph of Article 20(2) TFEU, is to be exercised under the conditions and within the limits defined by the Treaties and by the measures adopted pursuant thereto. Directive 91/477 on control of the acquisition and possession of weapons, which concerns the free movement of the holders of firearms, in particular hunters and sport shooters, constitutes such a measure.

Directive 91/477 on control of the acquisition and possession of weapons, as amended by Directive 2008/51, must be interpreted as not precluding national legislation which authorises the issue of a European firearms pass only to holders of weapons used for hunting and target shooting purposes.

In that regard, firstly, Article 3 of that directive expressly precludes the exercise of that right from creating any restriction of the rights conferred on residents of the Member States by Article 12(2) thereof, namely those of hunters and marksmen who may travel while in possession of weapons without other administrative formalities, notwithstanding the procedure laid down in Article 12(1) of that directive, on certain conditions.

Secondly, the fact that the pass is issued to a person who is already an authorised holder of a weapon under the national provisions suggests that it does not replace the national permit for the acquisition and possession of weapons.

Thirdly, Article 1(4) of Directive 91/477 refers to Annex II thereto, which, as regards the information which the European firearms pass must contain, makes reference precisely to hunting and target shooting purposes. It follows therefrom that Article 1(4) of the directive, read in conjunction with Article 12(2) thereof, is intended mainly to facilitate the transport of weapons used for hunting or sporting purposes.

(see paras 47, 48, 51, 52, 60, operative part)
Keywords

Summary



Keywords

1. Competition — Public undertakings or undertakings upon which special or exclusive rights have been conferred by the Member States — Dominant position — State measure capable of leading those companies to commit an abuse of a dominant position — Not permissible irrespective of whether any abuse actually exists

(Arts 82 EC and 86(1) EC)

2. Competition — Public undertakings or undertakings upon which special or exclusive rights have been conferred by the Member States — Dominant position — Extension of a dominant position, without any objective justification, as a result of a State measure — Incompatibility per se with Article 86(1) EC read in combination with Article 82 EC

(Arts 82 EC and 86(1) EC)

Summary

1. Pursuant to Article 86(1) EC, Member States are not to enact or maintain in force, in the case of public undertakings and the undertakings to which they grant special or exclusive rights, any measure contrary to the rules contained in the EC Treaty, in particular those provided for in Article 82 EC. In so far as it may affect trade between Member States, the abuse of a dominant position within the common market or in a substantial part thereof is prohibited by Article 82 EC.

In that context, infringement of Article 86(1) EC in conjunction with Article 82 EC may be established irrespective of whether any abuse actually exists. All that is necessary is for the Commission to identify a potential or actual anti-competitive consequence liable to result from the State measure at issue. Such an infringement may thus be established where the State measures at issue affect the structure of the market by creating unequal conditions of competition between companies, by allowing the public undertaking or the undertaking which was granted special or exclusive rights to maintain (for example by hindering new entrants to the market), strengthen or extend its dominant position over another market, thereby restricting competition, without it being necessary to prove the existence of actual abuse.

(see paras 39, 40, 46)

2. The extension of a dominant position by public undertakings or undertakings upon which special or exclusive rights have been conferred by the Member States, without any objective justification, is prohibited ‘as such’ by Article 86(1) EC in conjunction with Article 82 EC, where that extension results from a State measure. As competition may not be eliminated in that manner, it may not be distorted either.

(see para. 67)
Pursuant to Article 300(7) EC (now Article 216(2) TFEU), international agreements concluded by the European Union bind its institutions and consequently prevail over the acts laid down by those institutions. Nevertheless, the provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise.

With regard to Article 9(3) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, that article does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions. It follows that that provision cannot be relied on before the EU judicature for the purposes of assessing the legality of Article 10(1) of Regulation No 1367/2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies.

It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organisation or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements. However, those two exceptions were justified solely by the particularities of the agreements that led to their application and cannot, in the absence of such particularities, be deemed relevant for determining whether Article 9(3) of the Aarhus Convention can be relied on before the EU judicature for the purposes of assessing the legality of Article 10(1) of Regulation No 1367/2006.

(see paras 52, 54-58, 68)
Pursuant to Article 40 of the Statute of the Court of Justice, a party who is granted leave to intervene in a case submitted to the Court may not alter the subject-matter of the dispute as defined by the forms of order sought by the main parties and the pleas in law raised by those parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law.

The European Union, while not a party to the Agreement Establishing the International Organisation of Vine and Wine, concluded on 3 April 2001 (the OIV Agreement), is entitled to establish a position to be adopted on its behalf with regard to OIV recommendations, to be voted on at that organisation’s General Assembly, which relate to new oenological practices, methods of analysis for determining the composition of products of the wine sector, or purity and identification specifications of substances used in oenological practices, and are capable of decisively influencing the content of the legislation adopted by the EU legislature in the area of the common organisation of the wine markets.

First of all, there is nothing in the wording of Article 218(9) TFEU to prevent the European Union from adopting a decision establishing a position to be adopted on its behalf in a body set up by an international agreement to which it is not a party.

In addition, the OIV falls within the remit of the Common Agricultural Policy and, more specifically, the common organisation of the wine markets, an area which is regulated for the most part by the EU legislature in the exercise of its competence under Article 43 TFEU. Where an area of law falls within a competence of the European Union of that kind, the fact that the European Union did not take part in the international agreement in question does not prevent it from exercising that competence by establishing, through its institutions, a position to be adopted on its behalf in the body set up by that agreement, in particular through the Member States which are party to that agreement acting jointly in its interest.

Lastly, such recommendations constitute ‘acts having legal effects’ for the purposes of Article 218(9) TFEU.

(see paras 50-52, 63, 64)
45

Indeed, as is apparent also from the explanatory memorandum accompanying the proposal for the regulation amending Regulation No 219/2007 (COM(2008) 483 final), with the launch, for the years 2007 to 2013, of the Seventh Framework Programme for Research and Technological Development, the institutions of the European Union adopted a new approach to the establishment of joint undertakings, according to which they are from now on recognised as ‘bodies of the Union’, enjoying the benefits and immunities of the European Union. Consequently, the status of European Union officials and the conditions of employment of other servants of the European Union apply to members of staff of those bodies and the Protocol on the privileges and immunities of the European Union applies to those bodies as well as to their staff. However, it needs to be recalled that that new approach, which applied in particular in the context of regulations relating to the CLEAN SKY, ENIAC, IMI and ARTEMIS joint undertakings, and in which it is expressly stated that the status of officials and the conditions of employment of other servants of the European Communities are ‘applicable’ to the staff of those Community agencies, was, in any event, adopted only in 2007, that is to say after the termination of Galileo’s activities.
6

The provisions concerning the limits on the broadcasting time of television advertising are laid down in Article 38 of Legislative Decree No 177, consolidating the provisions on audiovisual and radio services (decreto legislativo n. 177 – Testo unico dei Servizi di Media audiovisivi e radiofonici) of 31 July 2005 (Ordinary Supplement to GURI No 208 of 7 September 2005), as amended and replaced by Article 12 of Legislative Decree No 44 of 15 March 2010 transposing Directive 2007/65/EC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (GURI No 73 of 29 March 2010, p. 33, ‘Legislative Decree No 177/2005’), pursuant to which: ‘1. The transmission of advertisements by the holder of the general public broadcasting service concession may not exceed 4% of weekly programming time and 12% of any one hour; any advertising in excess thereof, by a maximum of 2% in any hour, must be offset by a reduction in the preceding or following hour. 2. The transmission of television advertising spots by free-to-air broadcasters, including analogue broadcasters, at national level, other than the holder of the general public broadcasting service concession, may not exceed 15% of daily programming time and 18% of a given clock hour; any advertising in excess thereof, by a maximum of 2% in any hour, must be offset by a reduction in the preceding or following hour. … … 5. The transmission of television advertising spots by pay-TV broadcasters, including analogue broadcasters, may not, for the years 2010, 2011 and 2012, exceed 16%, 14% and 12%, respectively, of a given clock hour; any advertising in excess thereof, by a maximum of 2% in any hour, must be offset by a reduction in the preceding or following hour. …’