ddrg/super_eurlex huggingface dataset:
Article 1(1) of Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that a situation, such as that at issue in the main proceedings, where the successful tenderer for a service contract for the management of a municipal school of music, to which the municipal administration had supplied all the means necessary for the exercise of that activity, ceases that activity two months before the end of the current academic year, proceeding to dismiss the staff and returning those material resources to that municipal administration, which conducts a new tendering procedure solely for the following academic year and provides the new contractor with the same material resources, is capable of coming within the scope of that directive.

It should be noted, first of all, that in a situation such as that at issue in the main proceedings, the material resources, such as musical instruments, facilities and premises, appear to be essential to the conduct of the economic activity in question, relating to the management of a School of Music. In the present case, it is common ground that the municipal administration of Valladolid has made available to the new contractor all the material resources which it had assigned to the former contractor.

It follows that an interpretation of Article 1(1)(b) of Directive 2001/23 which excludes from the scope of that directive a situation in which the tangible assets essential to the performance of the activity in question have always been owned by the transferor (the local authority of Valladolid) would deprive that directive of part of its effectiveness (see judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 40).

Furthermore, it is clear from the case-law of the Court that a temporary suspension, of only a few months, of the undertaking’s activities cannot preclude the possibility that the economic entity at issue in the main proceedings retained its identity and that there was therefore a transfer of undertaking within the meaning of that directive (see, to that effect, judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 31).

(see paras 35, 39, 41, 46, operative part 1)
A Member State which adopts national implementing measures intended to clarify the concept of cabotage operations within the meaning of Regulation No 1072/2009 on common rules for access to the international road haulage market does not fail to fulfil its obligations under Article 2(6) and Article 8 thereof.

First, the wording of Article 2(6) and Article 8(2) respectively of Regulation No 1072/2009 does not give an answer to the question whether the definition of cabotage operations referred to in that regulation must be understood as meaning that a cabotage operation may include a number of loading points and a number of unloading points. The fact that a provision of a regulation is worded in general or imprecise terms is an indication that domestic implementing measures are required. Second, in order to decide when the limit of three transport operations laid down in Article 8(2) of Regulation No 1072/2009 must be regarded as being reached, it must be determined whether a transport operation consisting of several loading points and unloading points constitutes one single cabotage operation or several cabotage operations. Third, the concept of cabotage operations within the meaning of Regulation No 1072/2009 is interpreted differently in the Member States.

Furthermore, since allowing non-resident hauliers to carry out cabotage operations with an unlimited number of loadings points and an unlimited number of unloading points could render meaningless the three-operation limit laid down in Article 8(2) of Regulation No 1072/2009 and, thereby, run counter to the temporary nature of the cabotage and the objective pursued by that regulation with regard to that type of transport, a limit of the kind laid down in Article 8(2) of Regulation No 1072/2009 is appropriate to achieve the objective pursued by that regulation with regard to cabotage. In that connection, since, according to the national measures, only cabotage operations having several loading points and several unloading points are prohibited, those measures do not go beyond what is necessary to achieve the objective pursued by Regulation No 1072/2009.

(see paras 38, 39, 41, 42, 53, 55, 59, 60, 62)
Case C‑163/16

Christian Louboutin and Christian Louboutin SAS

v

Van Haren Schoenen BV

(Request for a preliminary ruling from the rechtbank Den Haag)

(Reference for a preliminary ruling — Trade marks — Absolute grounds for refusal or invalidity — Sign consisting exclusively of the shape of the product — Concept of ‘shape’ — Colour — Position on a part of the product — Directive 2008/95/EC — Article 2 — Article 3(1)(e)(iii))

Summary — Judgment of the Court (Grand Chamber), 12 June 2018

Approximation of laws — Trade marks — Directive 2008/95 — Grounds for refusal or invalidity — Signs consisting exclusively of shape giving substantial value to the goods — Mark consisting of a colour applied to the sole of a high-heeled shoe

(European Parliament and Council Directive 2008/95, Art. 3(1)(e)(iii))

Article 3(1)(e)(iii) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that a sign consisting of a colour applied to the sole of a high-heeled shoe, such as that at issue in the main proceedings, does not consist exclusively of a ‘shape’, within the meaning of that provision.

As noted by the European Commission, in the context of trade mark law, the concept of ‘shape’ is usually understood as a set of lines or contours that outline the product concerned.

It does not follow from Directive 2008/95, the case-law of the Court, or the usual meaning of that concept, that a colour per se, without an outline, may constitute a ‘shape’.

Nevertheless, the question arises as to whether the fact that a particular colour is applied to a specific part of the product concerned results in the sign at issue consisting of a shape within the meaning of Article 3(1)(e)(iii) of Directive 2008/95.

In that regard, it must be noted that, while it is true that the shape of the product or of a part of the product plays a role in creating an outline for the colour, it cannot, however, be held that a sign consists of that shape in the case where the registration of the mark did not seek to protect that shape but sought solely to protect the application of a colour to a specific part of that product.

In any event, a sign, such as that at issue in the main proceedings, cannot be regarded as consisting ‘exclusively’ of a shape, where, as in the present instance, the main element of that sign is a specific colour designated by an internationally recognised identification code.

(see paras 21-24, 26, 27, operative part)
Case C‑531/16

Šiaulių regiono atliekų tvarkymo centras

and

‘Ecoservice projektai’ UAB

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas)

(Reference for a preliminary ruling — Directive 2004/18/EC — Procedures for the award of public works contracts, public supply contracts and public service contracts — Links between tenderers having submitted separate tenders in the same procedure — Obligations of the tenderers, of the contracting authority and of the national court)

Summary — Judgment of the Court (Fourth Chamber), 17 May 2018

Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directive 2004/18—Submission of tenders—Submission of separate tenders by related undertakings—Lawfulness (European Parliament and Council Directive 2004/18, Art. 2) Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directive 2004/18—Award of contracts—Principles of equal treatment of tenderers and transparency—Scope—Selection and award criteria—Obligation to provide a clear definition in advance—Requirement imposed on tenderers not provided for in national legislation or the tender specifications—Unlawful (European Parliament and Council Directive 2004/18) Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directive 2004/18—Submission of tenders—Submission of separate tenders by related undertakings—No requirement for undertakings to declare those links if there is no obligation to that effect provided for in national legislation or the tender specifications—Possibility for the contracting authority to verify whether the offers are autonomous and independent—Conditions (European Parliament and Council Directive 2004/18, Art. 2) Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directives 89/665 and 2004/18—Member States' duty to provide for a review procedure—Rules of evidence—Member States' discretion—Limits—Respect for the principles of equivalence and effectiveness—Assessment of the standard of proof required to establish that the offers submitted by related undertakings are not autonomous and independent (European Parliament and Council Directive 2004/18, Art. 2; Council Directive 89/665, Arts 1(1)(3) and 2(1)(b))
An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate; which presupposes that the action must be capable, if successful, of procuring an advantage for the party bringing it.

As regards an action for the annulment of a regulation imposing sector-specific restrictive measures concerning restrictions on transfers of funds involving Iranian financial institutions, the repeal of those measures after an action is brought eliminates a commercial bank’s interest in bringing an action for the annulment of that regulation, since the action was not capable, if successful, of procuring an advantage for the applicant. More particularly, it cannot be maintained that restrictive measures of general application consisting essentially in prohibiting transactions between banks and financial institutions of the European Union and of the Islamic Republic of Iran are likely to cause, as regards an individual operator, clear non-material harm resulting in damage to its reputation, comparable to that caused by the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with, for example, a terrorist organisation or that annulment of those measures would be such as to procure an advantage for the bank in question, in the form of its rehabilitation and, thus, to offer it some form of reparation for such non-material harm. Such sector-specific restrictive measures are of a very different nature than individual fund and asset freezing measures in so far as they do not target identified natural or legal persons, the scope of those measures being determined by reference to objective criteria. The fact that the activities of a bank or financial institution may have been affected by the sector-specific restrictive measures in question does not mean that such measures constitute a penalty for a specific conduct attributable to that entity, since those general measures apply irrespective of the possible involvement of the latter in Iranian nuclear proliferation.

Furthermore, even assuming the existence of damage that can be made good, the adoption of sector-specific restrictive measures does not have a separate, effective impact on a bank where that bank is, throughout the application of the sector-specific restrictive measures, subject, to individual restrictive measures imposing more severe restrictions.

(see paras 50, 55-59, 61, 62, 68)
Article 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council must be interpreted as meaning that the act of not providing consumers with information on the testing conditions that resulted in the energy classification indicated on the label relating to the energy class of vacuum cleaners, the model of which is shown in Annex II to Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners does not constitute a ‘misleading omission’ within the meaning of that provision.

In that regard, it must be stated that Directive 2010/30 and Delegated Regulation No 665/2013 are to be interpreted as meaning that no information relating to the conditions under which the energy efficiency of vacuum cleaners was measured may be added to the energy label. It is stipulated, in recital 8 of Directive 2010/30, that it is necessary to introduce a uniform label for all products of the same type. It follows that Delegated Regulation No 665/2013, read in the light of Directive 2010/30, prohibits references other than, where appropriate, the reproduction of the EU Ecolabel from being added to the energy label.

It follows from that prohibition that, pursuant to Article 3(4) of Directive 2005/29, Article 7 of that directive cannot apply to the absence, from the energy label, of information on vacuum cleaner energy efficiency testing conditions.

So far as concerns, in the second place, the absence, from places other than the energy label, of information concerning testing conditions, it should be noted that, according to Article 7(1) of Directive 2005/29, a commercial practice is to be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, in view of the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. It is further apparent from paragraph 5 of the same article that information requirements established by EU law in relation to commercial communications including advertising and marketing are to be regarded as material.

In the case at hand, the conditions under which the energy efficiency of the model of vacuum cleaner concerned was measured cannot be deemed to constitute material information for the average consumer.

(see paras 35, 36, 40-43, 46, operative part 1)
Competition – EU rules – Infringements – Committed intentionally or negligently – Meaning – Undertaking not capable of being unaware of the anti-competitive nature of its conduct – Agreement concluded between an originator company and a generic medicine undertaking – Reverse payments disproportionate in character and combined with an exclusion of competitors from the market – Included

(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Arts 5 and 23(2))

(see paras 91, 135-140)
Article 2(d) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the concept of ‘controller’ within the meaning of that provision encompasses the administrator of a fan page hosted on a social network.

While the mere fact of making use of a social network such as Facebook does not make a Facebook user a controller jointly responsible for the processing of personal data by that network, it must be stated, on the other hand, that the administrator of a fan page hosted on Facebook, by creating such a page, gives Facebook the opportunity to place cookies on the computer or other device of a person visiting its fan page, whether or not that person has a Facebook account. In those circumstances, the administrator of a fan page hosted on Facebook, such as Wirtschaftsakademie, must be regarded as taking part, by its definition of parameters depending in particular on its target audience and the objectives of managing and promoting its activities, in the determination of the purposes and means of processing the personal data of the visitors to its fan page. The administrator must therefore be categorised, in the present case, as a controller responsible for that processing within the European Union, jointly with Facebook Ireland, within the meaning of Article 2(d) of Directive 95/46. The fact that an administrator of a fan page uses the platform provided by Facebook in order to benefit from the associated services cannot exempt it from compliance with its obligations concerning the protection of personal data. In those circumstances, the recognition of joint responsibility of the operator of the social network and the administrator of a fan page hosted on that network in relation to the processing of the personal data of visitors to that page contributes to ensuring more complete protection of the rights of persons visiting a fan page, in accordance with the requirements of Directive 95/46.

(see paras 35, 39, 40, 42, 44, operative part 1)
2.

Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that: — even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of Regulation No 604/2013 can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article; — in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article; — it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member States concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer; and — where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of that person’s application by making use of the ‘discretionary clause’ laid down in Article 17(1) of Regulation No 604/2013. Article 17(1) of Regulation No 604/2013, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, cannot be interpreted as requiring, in circumstances such as those at issue in the main proceedings, that Member State to apply that clause.
8

The HS includes an explanatory note on heading 7318, which provides the following clarification: ‘All these articles are normally threaded in the finished state, with the exception of some bolts which may sometimes be secured by means of a cotter pin, for example. They enable the assembly of two or more parts between them, in such a way that it is possible to separate them subsequently without deterioration. … metal screws are cylindrical in shape and their thread is very tight and slightly angled; [they] are either with a non-slotted head (with sides) – they are therefore fastened with the aid of a wrench –, or with a slotted head or with a socket. … metal screws of all kinds are [included] under this heading, regardless of their shape and their use, including [those] of specific shape such as U-bolts (flange bolts), bolts without heads consisting of cylindrical shanks threaded at one end or along the entire length, stud bolts, composed of a short shank threaded at each end. … Wooden screws are distinguished … from metal screws by their truncated cone shape and by the fact that they are fitted with a cutting thread which, by rotating, clears its passage into the material. In addition, wooden screws are fitted, in the majority of cases, with a slotted head or a head with a socket and are always used without a nut. …’
8

Under Article 5 of that directive: ‘1. Unless Member States provide otherwise, Articles 3 and 4 shall not apply to any transfer of an undertaking, business or part of an undertaking or business where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a competent public authority (which may be an insolvency practitioner authorised by a competent public authority). 2. Where Articles 3 and 4 apply to a transfer during insolvency proceedings which have been opened in relation to a transferor (whether or not those proceedings have been instituted with a view to the liquidation of the assets of the transferor) and provided that such proceedings are under the supervision of a competent public authority (which may be an insolvency practitioner determined by national law) a Member State may provide that: (a) notwithstanding Article 3(1), the transferor’s debts arising from any contracts of employment or employment relationships and payable before the transfer or before the opening of the insolvency proceedings shall not be transferred to the transferee, provided that such proceedings give rise, under the law of that Member State, to protection at least equivalent to that provided for in situations covered by Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer [OJ 1980 L 283, p. 23], and, or alternatively, that, (b) the transferee, transferor or person or persons exercising the transferor’s functions, on the one hand, and the representatives of the employees on the other hand may agree alterations, in so far as current law or practice permits, to the employees’ terms and conditions of employment designed to safeguard employment opportunities by ensuring the survival of the undertaking, business or part of the undertaking or business. 3. A Member State may apply paragraph 2(b) to any transfers where the transferor is in a situation of serious economic crisis, as defined by national law, provided that the situation is declared by a competent public authority and open to judicial supervision, on condition that such provisions already exist in national law by 17 July 1998. … 4. Member States shall take appropriate measures with a view to preventing misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in this Directive.’