ddrg/super_eurlex huggingface dataset:
In this regard, it follows from that provision that, while Member States have a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values are exceeded is as short as possible. In those circumstances, it is necessary to ascertain on the basis of a case-by-case analysis whether the plans drawn up by the Member State concerned comply with the second subparagraph of Article 23(1) of Directive 2008/50.

Air quality plans may be adopted only on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests. Therefore, the fact that a Member State exceeds the limit values for PM10 concentrations in ambient air is not in itself sufficient to find that that Member State has failed to fulfil its obligations under the second subparagraph of Article 23(1) of Directive 2008/50 on ambient air quality and cleaner air for Europe.

A Member State having adopted air quality plans, in order to put an end to exceedances of the limit values for PM10 concentrations in ambient air, which fix time-limits of ten, or 14 years, after the date on which those exceedances were recorded, fails to fulfil its obligation under Article 23(1) of Directive 2008/50 on ambient air quality and cleaner air for Europe.

In that regard, whereas it is true that difficulties arising from the socio-economic and financial challenge of the major technical investments to be carried out by the Member State to end those exceedances are factors which may be taken into account in the context of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests, it remains that such difficulties, which are not exceptional, such as to rule out the possibility of having set shorter periods. It follows that such an argument cannot, in itself, justify such long periods for putting an end to those exceedances in the light of the requirement seeking to ensure that the exceedance period is as short as possible.

(see paras 99-102)
2.

EU trade mark—Observations of third parties and opposition—Facts, evidence and observations submitted in support of the opposition—Proof of the acquisition, permanent nature and scope of the protection of an earlier right referred to in Article 8(4) of Regulation No 207/2009—Evidence for establishing the content of the applicable national law—Aim—No need to produce the text of the legislation from an official source (Council Regulation No 207/2009, Art. 8(4); Commission Regulation No 2868/95, Art. 1er, Rule 19(2)(a), (b) and (d)) (see paras 40, 41, 57, 58)
Articles 63 to 65 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which subjects a deduction of profits from shareholdings in a capital company with its management and head office in a non-member State to stricter conditions than a deduction of profits from shareholdings in a non-exempt capital company governed by national law.

In that regard, it is clear from the Court’s case-law that the comparability of a cross-border situation with an internal one must be examined having regard to the aim pursued by the national provisions at issue as well as their purpose and content (judgment of 2 June 2016, Pensioenfonds Metaal en Techniek, C‑252/14, EU:C:2016:402, paragraph 48 and the case-law cited).

Moreover, only the relevant distinguishing criteria established by the legislation in question must be taken into account in determining whether the difference in treatment resulting from that legislation reflects an objectively different situation (judgments of 10 May 2012, Santander Asset Management SGIIC and Others, C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 28, and of 2 June 2016, Pensioenfonds Metaal en Techniek, C‑252/14, EU:C:2016:402, paragraph 49).

With regard to national legislation, such as that in the main proceedings, which seeks to prevent double taxation by authorising the deduction from the trade tax base of dividends from shareholdings in one or more capital companies, the situation of a company receiving dividends distributed by resident companies is comparable to that of a company receiving income from shareholdings from non-resident companies (see, by analogy, judgments of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 62, and of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 113).

In that context, it should be noted that, in order for national legislation to be regarded as seeking to prevent tax evasion and abuses, its specific objective must be to prevent conduct involving the creation of wholly artificial arrangements which do not reflect economic reality, the purpose of which is unduly to obtain a tax advantage (judgments of 5 July 2012, SIAT, C‑318/10, EU:C:2012:415, paragraph 40, and of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 30 and the case-law cited).

Thus, a general presumption of fraud and abuse cannot justify a measure which prejudices the enjoyment of a fundamental freedom guaranteed by the Treaty and the mere fact that the company distributing the dividends is located in a non-member State cannot set up a general presumption of tax evasion (see, to that effect, judgment of 19 July 2012, A, C‑48/11, EU:C:2012:485, paragraph 32 and the case-law cited).

(see paras 88, 89, 92, 95, 96, 100, operative part)
The protection conferred by Article 8(5) of Regulation No 207/2009 on the European Union trade mark to trade marks with a reputation is extended. The specific condition of that protection consists of a use without due cause of a sign, identical or similar to a registered mark, which would take unfair advantage of, or would be detrimental to, the distinctive character or the reputation of that mark. Nevertheless, as is clear from Article 8(5) of Regulation No 207/2009, the user of a sign similar to a mark with reputation may rely on ‘due cause’ for the purposes of using that sign, that being an expression of the general objective of that regulation, which is to strike a balance between, on the one hand, the interests of the proprietor of a trade mark in safeguarding the essential function of that mark and, on the other, the interests of a third party in using, in the course of trade, such a sign for the purposes of denoting the goods and services that it markets. In so doing, the claim by a third party that there is due cause for using a sign which is similar to a mark with a reputation cannot lead to the recognition, for the benefit of that third party, of the rights connected with a registered mark, but rather obliges the proprietor of the mark with a reputation to tolerate the use of the similar sign.

In that regard, the use of the appellant’s forename, that is, Kenzo, in the composition of the mark KENZO ESTATE was not enough to constitute due cause for the use of that sign, within the meaning of Article 8(5) of Regulation No 207/2009. The mere fact that the term ‘kenzo’ which is a component of the mark KENZO ESTATE corresponds to the appellant’s forename is irrelevant to the issue of whether the use of that term constitutes due cause within the meaning of Article 8(5) of Regulation No 207/2009, since the weighing of the different interests involved cannot undermine the essential function of the earlier word mark KENZO, which is to guarantee the origin of the product.

Accordingly, taking into account the extended protection granted by Regulation No 207/2009 to trade marks with reputation, the Board of Appeal was entitled to find that no due cause had been demonstrated by the applicant for the word mark KENZO ESTATE and that, as a result, the latter wanted to take unfair advantage of the reputation of the earlier word mark KENZO.

(see paras 89-92, 94, 95)
The effective implementation of the prudential supervision regime for credit institutions that the EU legislature established by adopting Directive 2013/36, through supervision within a Member State and the exchanging of information by the competent authorities of several Member States, as briefly described in the preceding paragraphs, requires that both the supervised credit institutions and the competent authorities can have confidence that the confidential information provided will, in principle, remain confidential (see, by analogy, judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 31). The absence of such confidence is liable to compromise the smooth transmission of the confidential information that is necessary for prudential monitoring (see, by analogy, judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 32). Therefore, in order to protect not only the specific interests of the credit institutions directly concerned, but also the public interest linked, in particular, to the stability of the financial system within the European Union, Article 53(1) of Directive 2013/36 imposes, as a general rule, the obligation to maintain professional secrecy (see, by analogy, judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 33). Finally, the specific cases in which the general rule that disclosure of confidential information held by the competent authorities is prohibited, laid down in Article 53(1) of Directive 2013/36, does not, exceptionally, preclude their communication or use, are exhaustively set out in that directive (see, by analogy, judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 38).

(see paras 27-30)
1.

An examination of the questions of validity referred to the Court has revealed nothing capable of affecting the validity of Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14, or the validity of Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14;
Case C‑626/16

European Commission

v

Slovak Republic

(Failure of a Member State to fulfil obligations — Environment — Landfill of waste — Directive 1999/31/EC — Existing landfill sites — Article 14 — Definite decision on whether or not operations may continue — Article 13 — Closure procedures — Judgment of the Court declaring a failure to fulfil obligations — Non-compliance — Article 260(2) TFEU — Pecuniary penalties — Penalty payment and lump sum)

Summary — Judgment of the Court (Fourth Chamber), 4 July 2018

Environment — Waste — Landfill of waste — Directive 1999/31 — Existing landfill sites — Measures to be taken by the Member States — Scope (Council Directive 1999/31, Arts 13 and 14)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Period for implementation — Reference date for assessing whether there has been a failure to fulfil obligations (Art. 260(1) TFEU)

Environment — Waste — Landfill of waste — Directive 1999/31 — Sites not complying not closed down — Failure to fulfil obligations (Council Directive 1999/31, Arts 13 and 14(b))

Member States — Obligations — Failure to fulfil obligations — National system pleaded as justification — Not permissible

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Imposition of a penalty payment — Condition — Failure to comply continuing up to the time of the Court’s examination of the facts (Council Directive 1999/31, Arts 13 and 14(b))

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Determination of the form to be taken and of the amount — Discretion of the Court — Criteria (Arts 258 TFEU and 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Lump sum — Whether the two penalties should be cumulated — Lawfulness
21

It is in those circumstances that the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 131 and Article 138(1) of Directive 2006/112 be interpreted, in respect of an intra-Community supply of goods, as precluding the tax authority of a Member State from refusing to grant VAT exemption to a vendor domiciled in that Member State on the ground that the purchaser, domiciled in another Member State, is not registered in the VIES database nor is subject in that country to a system of taxation on intra-Community acquisitions of goods, although he has, at the time of the transactions, a valid identification number for the purposes of VAT in that other Member State, which has been used in the transaction invoices, and the cumulative material conditions for an intra-Community supply have been fulfilled, namely, that the right to dispose of the goods as owner has been transferred to the purchaser and the vendor has established that these goods were dispatched or transported to another Member State and that, after that dispatch or transport, those goods physically left the Member State of departure and were delivered to a taxable purchaser or legal person acting as such in a Member State other than that in which dispatch or transport of the goods began? (2) Does the principle of proportionality preclude an interpretation of Article 138(1) of Directive No 2006/112/EC to the effect that the benefit of the right to VAT exemption is to be denied in a situation where a vendor, domiciled in a Member State, was aware that the purchaser, domiciled in another Member State, although holding a valid identification number for the purposes of VAT in that other Member State, was not registered in the VIES database nor came under a system of taxation on intra-Community acquisitions of goods, but was convinced that that purchaser would be retroactively registered as an intra-Community operator?’
3

Article 18 of the Koninglijk besluit tot vaststelling van de cassatieprocedure bij de Raad van State (Royal Decree laying down the procedure for appeals on a point of law before the Council of State) of 30 November 2006 (Belgisch Staatsblad, 1 December 2006, p. 66844) reads as follows: ‘1. Where the auditeur concludes that the appeal is inadmissible or should be dismissed, his report shall be served by the principal registrar on the appellant, who has 30 days in which to apply for the proceedings to be continued in order for him to be heard. If the appellant does not ask to be heard, the principal registrar shall transmit the case-file to the chamber for it to order the case to be discontinued … The report of the auditeur shall be served at the same time as the judgment on the parties who have not yet received it. If the appellant asks to be heard, the judge shall determine by order the date on which the parties are to appear. The principal registrar shall mention the present paragraph when serving on the appellant the report concluding that the appeal is inadmissible or should be dismissed. 2. Where the auditeur does not conclude that the appeal is inadmissible or should be dismissed, the president of the chamber or the judge delegated by him shall determine immediately by order the date of the hearing at which the appeal will be examined.’
25

In those circumstances, the Okresný súd Dunajská Streda (District Court, Dunajská Streda) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the expression “the contract between the third party and the principal will not be executed” in Article 11 of Directive 86/653 be interpreted as meaning: (a) complete non-execution of the contract, that is, neither the principal nor the third party even partly performs what is provided for in the contract, or (b) even partial non-execution of the contract, that is, the volume of transactions envisaged is not achieved, for example, or the contract will not last for the time envisaged? (2) If the interpretation in indent (b) of Question 1 is correct, must Article 11(2) of Directive 86/653 be interpreted as meaning that a provision in a contract for commercial agency under which the agent is obliged to return a proportionate part of his commission if the contract between the principal and the third party is not executed to the extent envisaged, or to the extent defined by the contract for commercial agency, is not a derogation to the detriment of the agent? (3) In the cases concerned in the main proceedings, when assessing whether “the principal is to blame” within the meaning of the second indent of Article 11(1) of Directive 86/653, (a) may there be taken into consideration only legal reasons leading directly to termination of the contract (for example, the contract ceases as a result of the non-performance of an obligation under it by the third party), or (b) may there also be taken into consideration the question of whether those legal reasons were the result of the conduct of the principal in the context of the legal relationship with that third party which induced the third party to lose confidence in the principal and consequently to breach an obligation under the contract with the principal?’
20

In those circumstances, the Landgericht Stralsund (Regional Court, Stralsund) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Where the procedural law of a Member State provides for independent proceedings for the taking of evidence in which, by order of the court, an expert report is obtained (in this case the “expertise judiciaire” in French law), and where such independent proceedings for the taking of evidence are conducted in that Member State and an action based on the findings of those independent proceedings is subsequently brought in the same Member State between the same parties: In that case, is the document by which the independent proceedings for the taking of evidence were instituted a “document instituting the proceedings or an equivalent document” within the meaning of point 1 of Article 30 of Regulation (EC) No 44/2001? Or is it only the document by which the action is brought that is to be regarded as being the “document instituting the proceedings or an equivalent document”?’
45

The fact that the transitional periods concerning the date from which new reduced limitation periods become applicable are different depending on whether they concern one or other of the periods which apply to those two types of claim can have no effect whatsoever on such a conclusion, in so far as, when implemented, those periods do not render impossible or excessively difficult the repayment of overpaid VAT and the deduction of input VAT. Since, in the situation at issue in the main proceedings, the reduction of the limitation period for the two types of claim at issue applies from 4 December 1996 for the first type and from 1 May 1997 for the second type, as was observed in paragraph 12 above, such a reduction, which did not have retrospective effect because of the transitional periods, allowed litigants, such as Compass, to have an actual period of three years to submit their claims for periods after 4 December 1996 for the first type and 1 May 1997 for the second type, respectively. Therefore, it must be held that the periods at issue in the main proceedings are reasonable, with the result that the principle of effectiveness does not preclude such legislation.
11

Article 16 of the Implementing Regulation provides: ‘1. A person who pursues activities in two or more Member States shall inform the institution designated by the competent authority of the Member State of residence thereof. 2. The designated institution of the place of residence shall without delay determine the legislation applicable to the person concerned, having regard to Article 13 of the basic Regulation and Article 14 of the implementing Regulation. That initial determination shall be provisional. The institution shall inform the designated institutions of each Member State in which an activity is pursued of its provisional determination. 3. The provisional determination of the applicable legislation, as provided for in paragraph 2, shall become definitive within two months of the institutions designated by the competent authorities of the Member States concerned being informed of it, in accordance with paragraph 2, unless the legislation has already been definitively determined on the basis of paragraph 4, or at least one of the institutions concerned informs the institution designated by the competent authority of the Member State of residence by the end of this two-month period that it cannot yet accept the determination or that it takes a different view on this. 4. Where uncertainty about the determination of the applicable legislation requires contacts between the institutions or authorities of two or more Member States, at the request of one or more of the institutions designated by the competent authorities of the Member States concerned or of the competent authorities themselves, the legislation applicable to the person concerned shall be determined by common agreement, having regard to Article 13 of the basic Regulation and the relevant provisions of Article 14 of the implementing Regulation. … 5. The competent institution of the Member State whose legislation is determined to be applicable either provisionally or definitively shall without delay inform the person concerned. 6. If the person concerned fails to provide the information referred to in paragraph 1, this Article shall be applied at the initiative of the institution designated by the competent authority of the Member State of residence as soon as it is appraised of that person’s situation, possibly via another institution concerned.’