ddrg/super_eurlex huggingface dataset:
Case C‑539/12

Z.J.R. Lock

v

British Gas Trading Limited

(Request for a preliminary ruling from the Employment Tribunal, Leicester)

‛Social policy — Organisation of working time — Directive 2003/88/EC — Right to paid annual leave — Composition of remuneration — Basic salary and commission according to turnover realised’

Summary — Judgment of the Court (First Chamber), 22 May 2014

Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Assessment by the national court or tribunal of the methods of calculation of the financial allowance in respect of leave where the remuneration consists of several components — Criteria set out by the case-law of the Court of Justice and objective pursued by Article 7 of Directive 2003/88 to be taken into account

Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Allowance for leave calculated exclusively on the basis of basic salary, without taking into account commission constituting part of the remuneration

See the text of the decision. (see para. 14)

Article 7(1) of Directive 2003/88 concerning certain aspects of the organisation of working time must be interpreted as precluding national legislation and practice under which a worker whose remuneration consists of a basic salary and commission, the amount of which is fixed by reference to the contracts entered into by the employer as a result of sales achieved by that worker, is entitled, in respect of his paid annual leave, to remuneration composed exclusively of his basic salary. The purpose of providing payment for annual leave is to put the worker, during such leave, in a position which is, as regards his salary, comparable to periods of work. Admittedly, the conditions laid down in Article 7 of Directive 2003/88 appear to be observed by the national legislation and practice in so far as, during the period of his annual leave, the worker receives a total amount comparable to that earned during periods of work. Thus, that amount paid in respect of both his annual leave and the sales achieved by him during the weeks preceding the period of his annual leave enables the worker to take the leave to which he is entitled. However, notwithstanding the remuneration received by the worker during the period in which he actually takes his annual leave, he may be deterred from exercising his right to annual leave, given the financial disadvantage which, although deferred, is nonetheless genuinely suffered by him during the period following that of his annual leave. (see paras 17, 20, 21, 24, operative part 1)
Case C‑483/12

Pelckmans Turnhout NV

v

Walter Van Gastel Balen NV and Others

(Request for a preliminary ruling from the Grondwettelijk Hof)

‛Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Principles of equality and non-discrimination — Implementation of EU law — Scope of application of EU law — None — Lack of jurisdiction of the Court’

Summary — Judgment of the Court (First Chamber), 8 May 2014

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Request for interpretation of the Charter of Fundamental Rights of the European Union — Legal situation at issue in the main proceedings not coming within the scope of or having any other connection with EU law — Lack of jurisdiction of the Court

(Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Arts 20, 21 and 51(1))

See the text of the decision.

(see paras 17-21, 26, 27)

Case C‑483/12

Pelckmans Turnhout NV

v

Walter Van Gastel Balen NV and Others

(Request for a preliminary ruling from the Grondwettelijk Hof)

‛Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Principles of equality and non-discrimination — Implementation of EU law — Scope of application of EU law — None — Lack of jurisdiction of the Court’

Summary — Judgment of the Court (First Chamber), 8 May 2014

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Request for interpretation of the Charter of Fundamental Rights of the European Union — Legal situation at issue in the main proceedings not coming within the scope of or having any other connection with EU law — Lack of jurisdiction of the Court

(Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Arts 20, 21 and 51(1))

See the text of the decision.

(see paras 17-21, 26, 27)
On a proper construction of Articles 24(1) and 34 of Regulation No 810/2009 establishing a Community Code on Visas (Visa Code), the cancellation of a travel document by an authority of a third country does not mean that the uniform visa affixed to that document is automatically invalidated.

A uniform visa thus remains valid at the very least until expiry of the period of validity fixed, when the visa was issued, by the competent authority of the issuing Member State, unless it is annulled or revoked before the expiry of that period, pursuant to Article 34 of the Visa Code.

However, under Article 34(1) and (2) of the Visa Code, annulment or revocation of a uniform visa requires the adoption of a specific decision to that effect by the competent authority of the issuing Member State or of another Member State. An authority of a third country is therefore not competent to annul a uniform visa.

Moreover, the only ground for annulling a visa which directly concerns the travel document is, pursuant to Article 32(1)(a)(i) of the Visa Code, the situation in which the travel document presented at the time when the visa was issued was false, counterfeit or forged. It follows that the cancellation, after the visa has been issued, of the travel document to which the visa is affixed is not one of the reasons that may justify annulment of the visa by a competent authority.

(see paras 32, 33, 35, 36, operative part 1)
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 European 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 44, 46-50, 60)
It follows from the principle of equal treatment of public undertakings and private undertakings that capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid.

In that regard, it is necessary to distinguish between, on the one hand, the role of a Member State as shareholder of an undertaking and, on the other, that of the State acting as a public authority. The applicability of the private investor test ultimately depends on the Member State concerned having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking.

In that context, it is necessary to assess whether the measure would have been adopted in normal market conditions by a private investor in a situation as close as possible to that of the Member State concerned, and only the benefits and obligations linked to the situation of the State as shareholder — to the exclusion of those linked to its situation as a public authority — are to be taken into account. If there is no possibility of comparing the situation of a public authority with that of a private undertaking, normal market conditions must be assessed by reference to the objective and verifiable elements which are available.

Furthermore, for the purposes of the assessment of the private investor test, it is for the Commission to define the economic activities of the Member State concerned, in particular at the geographic and sectoral level, in relation to which the long-term economic rationale of that Member State’s conduct has to be assessed. It is only a sufficiently well-established practice or a settled practice of private undertakings which can be used to apply that test.

In those circumstances, when injections of capital by a public investor disregard any prospect of profitability, even in the long term, such provision of capital must be regarded as aid within the meaning of Article 107 TFEU, and its compatibility with the common market must be assessed on the basis solely of the criteria laid down in that provision. Summary references to the brand image of a Member State, as a global player, are not enough to support a finding that there is no aid, for the purposes of EU law.

(see paras 30, 31, 33-35, 39, 41)
13

Mr Fekete brought an administrative appeal against that decision before the second instance customs authority, arguing that as the vehicle in question belonged to a foundation it entered the territory of the European Union without formalities pursuant to the convention known as the ‘Istambul Convention’ approved by Council Decision 93/329/EEC of 15 March 1993 concerning the conclusion of the Convention on Temporary Admission and accepting its annexes (OJ 1993 L 130, p. 1). Moreover, he maintains that the customs authority was wrong to base its refusal to grant total relief from import duties on the lack of a contract of employment within the meaning of Article 561(2) of the implementing regulation. As he did not have a contract of employment, the authority only had to verify whether the private use of the vehicle had been ‘otherwise authorised by the owner’ within the meaning of that provision. In that connection, Mr Fekete produced an authorisation from the chairman of the board of the Együtt Afrikáért foundation authorising him to use and drive the vehicle belonging to that foundation. In any event, Mr Fekete took the view that he should have been considered to be an employee of that foundation on the basis of the work he did within it, even if he could not be classified as such according to the rules of national law.
6

Article 72 of the Law of 6 April 2010 on market practices and consumer protection (Belgisch Staatsblad, 12 April 2010, p. 20803; ‘the Law of 6 April 2010’) provides: ‘1. Any combined offer to the consumer, of which at least one component is a financial service and which is made by a business or by various businesses acting with a common purpose, shall be prohibited. 2. By way of derogation from paragraph 1, however, combined offers shall be permitted of: (1) Financial services which constitute a whole; The King may, on a proposal from the competent ministers and the Minister for Finance, designate the services offered in the financial sector which constitute a whole; (2) Financial services and incidental goods and incidental services permitted by commercial practice; (3) Financial services and tickets for legally authorised lotteries; (4) Financial services and objects with indelible and clearly visible advertising inscriptions, which are not found as such in shops, provided that the cost price paid by the business does not exceed EUR 10, excluding VAT [value added tax], or 5% of the retail price, excluding VAT, of the financial service with which they are given away. The percentage of 5% applies if the amount corresponding to that percentage is greater than EUR 10; (5) Financial services and colour photographs, stickers and other images with minimal commercial value; (6) Financial services and vouchers consisting in documents conferring entitlement, after the acquisition of a certain number of services, to a free offer or a price reduction upon the acquisition of a similar service, on condition that that benefit is provided by the same business and does not exceed one third of the price of the services previously acquired. The vouchers must indicate any time limit on their validity as well as the conditions applicable to the offer. When the business ends its offer, the consumer must receive the benefits offered in proportion to the purchases previously made.’
16

Italia Zuccheri/Co.Pro.B. brought an appeal against that decision before the Consiglio di Stato, which decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Are Articles 3 and 4 of [the Basic Regulation] and Article 4 of [the Implementing Regulation] to be interpreted as meaning that the phrase “production facilities” does not include facilities used by sugar companies for storing, packing or packaging sugar for the purposes of marketing it and that, therefore, in the case of facilities such as silos, it is necessary to carry out a case-by-case analysis in order to establish whether those facilities are connected with the “production line” or whether they are connected with other activities, different from production? 2. In particular, is Article 4 of [the Implementing Regulation] to be interpreted as meaning that facilities, such as silos, which are used by sugar companies for storing, packing or packaging sugar purely for the purposes of marketing it, being independent from the production cycle, are part of the facilities referred to in Article 4(1)(c), rather than Article 4(1)(a) or (b), in accordance with the wording and objectives of [the Basic Regulation] and [the Implementing Regulation], in particular Recital [4] in the preamble to the latter? 3. In the alternative, with regard to Articles 3 and 4 of [the Basic Regulation and] with regard to the higher rules and principles of EU primary law, is Article 4 of [the Implementing Regulation] invalid if interpreted as also including among the facilities referred to in Article 4(1)(a) and (b) of [the Implementing Regulation] those facilities used by sugar companies for storing, packing or packaging sugar for the purposes of marketing it, given that it is clear that the objective of [the Basic Regulation] is to reduce the sugar companies’ production capacity and not to prevent those companies from being able to operate in the sector of the mere marketing of the product, using sugar obtained under the production quotas belonging to other facilities or companies? 4. In the further alternative, in any event, are Articles 3 and 4 of [the Basic Regulation] and Article 4 of [the Implementing Regulation] valid, by the yardstick of the higher rules and principles of EU primary law, if interpreted as including in the concept of “production facilities” or facilities “directly related to … production” those facilities used by sugar companies for storing, packing or packaging sugar for the purposes of marketing it?’
27

It is true that the Court has held, in a situation in which a ‘product’ within the meaning of Article 1 of Regulation No 469/2009 is protected by a number of basic patents in force, which may belong to different patent holders and may be patents for that product, patents for processes by which the product is obtained or patents relating to an application of the product, that, under Article 3(c) of that regulation, each of those patents may confer entitlement to an SPC but that only one certificate may be granted for each basic patent (see Biogen, paragraph 28, and AHP Manufacturing, paragraphs 22 and 23). In such a situation, the type of patent held, as the case may be, by each of those proprietors will affect the protection that may be obtained if an SPC is granted, since, for a patent protecting a product as such, the protection conferred by the SPC will cover that product, whereas for a patent protecting a process by which a product is obtained, that protection will extend only to the process by which that product is obtained or, if the law applicable to such a patent so provides, possibly to the product directly obtained by that process (see the order in Queensland University and CSL, paragraph 39) and, for a patent relating to a new therapeutic application of an active ingredient, known or otherwise, the protection conferred by the SPC will not cover the active ingredient as such but only the new use of that product (Case C‑130/11 Neurim Pharmaceuticals (1991) [2012] ECR, paragraph 25).
16

Under Article 31 of the CMR: ‘1. In legal proceedings arising out of carriage under this Convention, the plaintiff may bring an action in any court or tribunal of a contracting country designated by agreement between the parties and, in addition, in the courts or tribunals of a country within whose territory: (a) The defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made, or (b) The place where the goods were taken over by the carrier or the place designated for delivery is situated, and in no other courts or tribunals. 2. Where in respect of a claim referred to in paragraph 1 of this article an action is pending before a court or tribunal competent under that paragraph, or where in respect of such a claim a judgement has been entered by such a court or tribunal no new action shall be started between the same parties on the same grounds unless the judgement of the court or tribunal before which the first action was brought is not enforceable in the country in which the fresh proceedings are brought. 3. When a judgement entered by a court or tribunal of a contracting country in any such action as is referred to in paragraph 1 of this article has become enforceable in that country, it shall also become enforceable in each of the other contracting States, as soon as the formalities required in the country concerned have been complied with. These formalities shall not permit the merits of the case to be re-opened. 4. The provisions of paragraph 3 of this article shall apply to judgements after trial, judgements by default and settlements confirmed by an order of the court, but shall not apply to interim judgements or to awards of damages, in addition to costs against a plaintiff who wholly or partly fails in his action. ...’
5

According to Article 2 of that directive: ‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, … ... 5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’
3

Paragraph 10 of the Law on Pharmacies (Apothekengesetz), as amended by law published in BGBl. I, 41/2006 (‘the ApG’) provides: ‘1. Authorisation to open a pharmacy shall be granted where: (1) a doctor is already permanently established in the municipality where the pharmacy is to be opened and where (2) there exists a need for a new pharmacy to be opened. 2. Such a need does not exist where: (1) on the date that the request is submitted, there is already, in the municipality where the proposed pharmacy is to be located, a doctor’s dispensary and fewer than two (full-time) positions for doctors operating under contract to health funds … are occupied by general practitioners, or where (2) the distance between the location of the proposed pharmacy and the location of the closest existing public pharmacy is less than 500 metres, or where (3) as a result of the establishment of the new pharmacy, the number of people that will remain to be served by one of the existing neighbouring pharmacies will be reduced and fall below 5500. 3. A need, within the meaning of point 2(1) above, does not exist where, on the date that the request is submitted, there is, in the municipality where the proposed pharmacy is to be opened, (1) a doctor’s dispensary and (2) a group practice under contract to health funds … … 4. The people to be served, within the meaning of point 2(3) above, are those permanent inhabitants living within a radius of less than four kilometres, by road, from the permanent location of one of the existing neighbouring public pharmacies who, because of local conditions, will continue to be served by that existing pharmacy. 5. Where the number of permanent inhabitants, as defined in point 4 above, is lower than 5500, account must be taken, when ascertaining whether a need exists, of the people who are to be served by virtue of the fact that they work, have recourse to services or use means of transport in that area. 6. The distance referred to in point 2(2) above, may, in exceptional cases, be ignored where the local conditions urgently so require, in the interest of ensuring an adequate supply of medicinal products to the public. 7. An expert’s report shall be prepared by the Austrian Chamber of Pharmacists to establish whether there is a need for a new pharmacy to be opened. … …’