ddrg/super_eurlex huggingface dataset:
30.

The Juzgado de lo Mercantil No 3 de Barcelona refers the following questions to the Court for a preliminary ruling: ‘(1) Whether the system of levying execution, in reliance on judicial documents, on mortgaged or pledged property provided for in Article 695 et seq. of the [LEC], with its limitations regarding the grounds of objection available under Spanish procedural law, may be nothing more than a clear limitation of consumer protection since it involves, both formally and substantively, a clear impediment to the consumer’s exercise of rights of action or judicial remedies of such a kind as to guarantee the effective protection of his rights? (2) This reference to the Court of Justice of the European Union is made so that the concept of disproportion can be expanded upon with regard to: (a) the use of acceleration clauses in contracts planned to last for a considerable time – in this case 33 years – for events of default occurring within a very limited specific period; (b) the setting of default interest rates – in this case exceeding 18% – which are not consistent with the criteria for determining default interest in other consumer contracts (consumer credit), which, in other types of consumer contracts, might be regarded as unfair, and which, nevertheless, in contracts relating to immovable property, are not subject to any clear legal limit, even where they are applied not only to the instalments that have already fallen due but also to the totality of those that have become due as a result of acceleration; (c) the unilateral establishment by the lender of mechanisms for the calculation and determination of variable interest – both ordinary and default interest – which are linked to the possibility of mortgage enforcement and do not allow a debtor who is subject to enforcement to object to the quantification of the debt in the enforcement proceedings themselves but require him to resort to declaratory proceedings in which a final decision will not be given before enforcement has been completed or, at least, the debtor will have lost the property mortgaged or charged by way of guarantee – a matter of great importance when the loan is sought for the purchase of a dwelling and enforcement gives rise to eviction from the property.’
4.

Under the heading ‘Moral Rights’, Article 6 bis of the Berne Convention provides as follows: ‘(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. (2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained. (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.’
10.

The provisions of the Framework Agreement which are relevant for the purposes of the main proceedings are the following: ‘Preamble … This Agreement relates to employment conditions of part-time workers recognising that matters concerning statutory social security are for decision by the Member States. In the context of the principle of non-discrimination, the parties to this Agreement have noted the Employment Declaration of the Dublin European Council of December 1996, wherein the Council inter alia emphasised the need to make social security systems more employment-friendly by “developing social protection systems capable of adapting to new patterns of work and of providing appropriate protection to people engaged in such work”. The parties to this Agreement consider that effect should be given to this Declaration. … Clause 1: Purpose The purpose of this Framework Agreement is: (a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work; … Clause 2: Scope 1. This Agreement applies to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State. … Clause 4: Principle of non-discrimination 1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. … Clause 5: Opportunities for part-time work 1. In the context of Clause 1 of this Agreement and of the principle of non-discrimination between part-time and full-time workers: (a) Member States, following consultations with the social partners in accordance with national law or practice, should identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them; …’
8.

The reduction scheme is laid down in Annex IIB to the VOC Directive: ‘1. Principles The purpose of the reduction scheme is to allow the operator the possibility to achieve by other means emission reductions, equivalent to those achieved if the emission limit values were to be applied. To that end the operator may use any reduction scheme, specially designed for his installation, provided that in the end an equivalent emission reduction is achieved. Member States shall report according to Article 11 of the Directive to the Commission about the progress in achieving the same emission reduction, including the experience from the application of the reduction scheme. 2. Practice In the case of applying coatings, varnishes, adhesives or inks, the following scheme can be used. Where the following method is inappropriate the competent authority may allow an operator to apply any alternative exemption scheme which it is satisfied fulfils the principles outlined here. The design of the scheme shall take into account the following facts: (i) where substitutes containing little or no solvent are still under development, a time extension must be given to the operator to implement his emission reduction plans; (ii) the reference point for emission reductions should correspond as closely as possible to the emissions which would have resulted had no reduction action been taken. The following scheme shall operate for installations for which a constant solid content of product can be assumed and used to define the reference point for emission reductions: (i) the operator shall forward an emission reduction plan which includes in particular decreases in the average solvent content of the total input and/or increased efficiency in the use of solids to achieve a reduction of the total emissions from the installation to a given percentage of the annual reference emissions, termed the target emission. This must be done on the following time frame: Time period Maximum allowed total annual emissions New installations Existing installations By 31.10.2001 By 31.10.2004 By 31.10.2005 By 31.10.2007 Target emission × 1.5 Target emission (ii) The annual reference emission is calculated as follows: (a) The total mass of solids in the quantity of coating and/or ink, varnish or adhesive consumed in a year is determined. Solids are all materials in coatings, inks, varnishes and adhesives that become solid once the water or the volatile organic compounds are evaporated. (b) The annual reference emissions are calculated by multiplying the mass determined in (a) by the appropriate factor listed in the table below. … (c) The target emission is equal to the annual reference emission multiplied by a percentage equal to: — (the fugitive emission value + 15), for installations falling within item 6 and the lower threshold band of items 8 and 10 of Annex IIA, — (the fugitive emission value + 5) for all other installations.’
119.

In the light of the foregoing considerations, I suggest that the Court answer the questions referred by the Amtsgericht Laufen as follows: (1) Articles 1(2) and 2(1) and (8) of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings are to be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which provides for the use of a certain language as the language of the proceedings before the courts of that State. However, those same provisions are to be interpreted as permitting an individual against whom a judgment has been delivered in criminal proceedings and who does not have a command of the language of the proceedings to bring an appeal in his own language against such a judgment, and it is the responsibility of the competent court, pursuant to the right to interpretation enjoyed by the accused person under Article 2 of that directive, to provide appropriate resources for the translation of the appeal into the language of the proceedings. (2) Articles 2, 3(1)(c) and 6(1) and (3) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings are to be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which an accused person in criminal proceedings who does not reside in that State appoints a person authorised to accept service of a penalty order adopted against him, after which that order is sent by the authorised person to the accused person by ordinary post, provided that procedural mechanism does not prevent that accused person from benefiting from the statutory period of two weeks, provided for by the legislation of that State, for lodging an objection against that penalty order, and that period must run from the time that person becomes aware, by any manner, of that order.
33.

It is of course the case that, as exceptions to the principle of harmonised excise, the exemptions should be interpreted restrictively. However, the issue seems to me to be different in the present case. It is necessary to decide whether the case referred by the referring court falls within the mandatory exemptions regime or within the optional exemptions regime. If there is any uncertainty about this, the requirement for EU law to be applied uniformly should, in my view, lead to the Court prioritising the regime for mandatory exemptions which are defined at EU level, especially given that those mandatory exemptions expressly cover the category of products at issue in the main proceedings, namely medicines. Article 27(1)(d) of Directive 92/83 is therefore a lex specialis compared with Article 27(2)(d) of that directive. In addition, it must be borne in mind that the Court has several times had occasion to emphasise that ‘the exemption of products covered by Article 27(1) of Directive 92/83 is the rule and refusal is the exception’. ( 11 )
4.

Article 32 of Directive 2005/85 provides as follows: ‘1. Where a person who has applied for asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework. 2. Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum: (a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20; (b) after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken. 3. A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant. 4. If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II. 5. Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re-opened. 6. Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations set forth in paragraphs 3, 4 and 5 of this Article in the previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article 39. …’
4.

Article 17 of that regulation, entitled ‘Transfer’, provides: ‘1. A Community trade mark may be transferred, separately from any transfer of the undertaking, in respect of some or all of the goods or services for which it is registered. 2. A transfer of the whole of the undertaking shall include the transfer of the Community trade mark except where, in accordance with the law governing the transfer, there is agreement to the contrary or circumstances clearly dictate otherwise. This provision shall apply to the contractual obligation to transfer the undertaking. … 5. On request of one of the parties a transfer shall be entered in the Register and published. 6. As long as the transfer has not been entered in the Register, the successor in title may not invoke the rights arising from the registration of the Community trade mark. …’
8.

Article 12(3)(a) and (d) of Decreto legislativo n. 286 — Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero (Legislative Decree No 286 consolidating the provisions regulating immigration and the rules relating to the status of foreign nationals) of 25 July 1998, ( *5 ) as amended by Law No 94 of 15 July 2009, ( *6 ) provides that unless the acts constitute a more serious criminal offence, any person who, in breach of the provisions of that consolidated text, promotes, directs, organises, finances or carries out the transportation of foreign nationals into Italy or carries out other acts intended to procure their illegal entry into Italy or into the territory of another State of which they are not nationals or in which they are not entitled to permanent residence may be punished by a term of imprisonment from 5 to 15 years and a fine of EUR 15000 for each individual, where the acts relate to the illegal entry into or stay in Italy of five or more individuals or where the acts are committed by three or more individuals acting together or using international transport services or counterfeit, forged or, in any event, unlawfully obtained documents.
3.

Article 10 of the Agreement on extradition between the European Union and the United States of America of 25 June 2003, ( 4 ) entitled ‘Requests for extradition or surrender made by several States’, provides: ‘1. If the requested State receives requests from the requesting State and from any other State or States for the extradition of the same person, either for the same offence or for different offences, the executive authority of the requested State shall determine to which State, if any, it will surrender the person. 2. If a requested Member State receives an extradition request from the United States of America and a request for surrender pursuant to the European arrest warrant for the same person, either for the same offence or for different offences, the competent authority of the requested Member State shall determine to which State, if any, it will surrender the person. For this purpose, the competent authority shall be the requested Member State’s executive authority if, under the bilateral extradition treaty in force between the United States and the Member State, decisions on competing requests are made by that authority; if not so provided in the bilateral extradition treaty, the competent authority shall be designated by the Member State concerned pursuant to Article 19. 3. In making its decision under paragraphs 1 and 2, the requested State shall consider all of the relevant factors, including, but not limited to, factors already set forth in the applicable extradition treaty, and, where not already so set forth, the following: (a) whether the requests were made pursuant to a treaty; (b) the places where each of the offences was committed; (c) the respective interests of the requesting States; (d) the seriousness of the offences; (e) the nationality of the victim; (f) the possibility of any subsequent extradition between the requesting States; and (g) the chronological order in which the requests were received from the requesting States’.
13.

Therefore, after examining the issues expressly indicated in the questions referred for a preliminary ruling, I shall also refer to a matter which was not directly addressed therein, namely the interpretation of Article 14(1)(a) of that directive and its relationship to the third subparagraph of Article 21(5) thereof. Such a broadening of the scope of the questions referred for a preliminary ruling is in my view permissible, since according to settled case-law, in the procedure laid down in Article 267 TFEU which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. Furthermore, the Court may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question. ( 4 ) In my view, it is not possible to give a useful answer to the questions referred in the present case, in particular to the second question, without taking the interpretation of Article 14(1)(a) of Directive 2003/96 into account when interpreting the third subparagraph of Article 21(5) of that directive.
47.

This conclusion is confirmed by the Court’s decision in Cibo Participations. In that case, the Court ruled that the payment of a dividend does not constitute consideration for a service, but is merely the result of ownership of the share and thus of status as a shareholder. In particular, the existence of distributable profits is generally a prerequisite of paying a dividend and that payment is thus dependent on the company’s year-end results. ( 12 ) In the present case, the EIG does not, it is true, distribute dividends, that is to say, shares in profits, to members. Instead, the members pay a sum to the EIG. However, as the tax authority asserted in the main proceedings, at issue here are the general costs of the EIG’s business activity. The way in which these costs are borne is ultimately like a mirror image of the distribution of dividends in Cibo Participations. The amount of the sum invoiced by the EIG depends on its profit situation, just as the amount of dividends distributed depended on the profit situation of the companies in which Cibo Participations had a shareholding. By virtue of its status as a member, a member is not only entitled to share in profits, but is also required in the present case to cover expenditure incurred. While the Cibo Participations case concerned participation in profits, the present case relates to coverage of expenditure incurred. In both cases the payments made are the result of status as a member and do not therefore constitute consideration for a supply of services.
17.

By order of 17 November 2020, lodged at the Court Registry on 9 December 2020, the Tribunal judiciaire d’Auch (Court of Auch) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Must Article 50 of the Treaty on European Union and the [Withdrawal Agreement] be interpreted as revoking the [Union] citizenship of [British] nationals who, before the end of the transition period, have exercised their right to freedom of movement and freedom to settle freely in the territory of another Member State, in particular for those who have lived in the territory of another Member State for more than 15 years and are subject to the UK 15-year rule, thus depriving them of any right to vote? (2) If so, is the combination of Articles 2, 3, 10, 12 and 127 of the Withdrawal Agreement, recital 6 of its preamble, and Articles 18, 20 and 21 of the Treaty on the Functioning of the European Union to be regarded as having allowed those [British] nationals to retain, without exception, the rights to [Union] citizenship which they enjoyed before the withdrawal of their [State] from the European Union? (3) If the answer to Question 2 is in the negative, is the Withdrawal Agreement not invalid in part in so far as it infringes the principles underlying EU identity, and, in particular, Articles 18, 20 and 21 of the Treaty on the Functioning of the European Union, and also Articles 39 and [40] of [the Charter], and does it not infringe the principle of proportionality, in that it contains no provision permitting them to retain those rights without exception? (4) In any event, is Article 127(1)(b) of the Withdrawal Agreement not invalid in part in so far as it infringes Articles 18, 20 and 21 of the Treaty on the Functioning of the European Union, and also Articles 39 and 40 of [the Charter], in that it deprives Union citizens who have exercised their right to freedom of movement and freedom to settle freely in the United Kingdom of the right to vote and to stand as candidates in municipal elections in that [State] and, if the General Court and the Court of Justice interpret them in the same way as the Conseil d’État (Council of State, France), does that infringement not extend to [British] nationals who have exercised their freedom of movement and their freedom to settle freely in the territory of another Member State for more than 15 years and are subject to the UK 15-year rule, thus depriving them of any right to vote?’