ddrg/super_eurlex huggingface dataset:
Case C‑116/11

Bank Handlowy w Warszawie SA and PPHU ‘ADAX’/Ryszard Adamiak

v

Christianapol sp. z o.o.

(Reference for a preliminary ruling from the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu)

‛Judicial cooperation in civil matters — Regulation (EC) No 1346/2000 — Insolvency proceedings — Concept of ‘closure of insolvency proceedings’ — Possibility for a court before which secondary insolvency proceedings have been brought to examine the debtor’s insolvency — Possibility of opening winding-up proceedings as secondary insolvency proceedings where the main proceedings are sauvegarde proceedings’

Summary — Judgment of the Court (First Chamber), 22 November 2012

Judicial procedure — Request to have the oral procedure reopened — Request to lodge observations on the points of law raised by the Advocate General’s opinion — Conditions for the reopening

See the text of the decision. (see paras 26-30)

Once proceedings are listed in Annex A to Regulation No 1346/2000 on insolvency proceedings, as amended by Regulation No 788/2008, it must be regarded as falling within the scope of the regulation. Inclusion in the list has the direct, binding effect attaching to the provisions of a regulation. (see para. 33)

Article 4(2)(j) of Regulation No 1346/2000 on insolvency proceedings, as amended by Regulation No 788/2008, must be interpreted as meaning that it is for the national law of the Member State in which insolvency proceedings have been opened to determine at which moment the closure of those proceedings occurs. Article 4 of Regulation No 1346/2000 appears to be a conflict of laws rule which replaces national rules of private international law. The defining characteristic of such a conflict of laws rule is that it does not answer a question of substantive laws itself, but simply determines the law that governs the answer to that question. Accordingly, questions such as the conditions for and effects of the closure of insolvency proceedings, about which Article 4(2)(j) of the Regulation makes an express reference to national law, cannot be given an autonomous interpretation, but must be decided under the lex concursus designated as applicable. (see paras 47, 48, 50, 52, operative part 1)

Article 27 of Regulation No 1346/2000 on insolvency proceedings, as amended by Regulation No 788/2008, must be interpreted as meaning that it permits the opening of secondary insolvency proceedings in the Member State in which the debtor has an establishment, where the main proceedings have a protective purpose. It is for the court having jurisdiction to open secondary proceedings to have regard to the objectives of the main proceedings and to take account of the scheme of the Regulation, in keeping with the principle of sincere cooperation. (see para. 63, operative part 2)
Inasmuch as the provisions of Articles 2(1) and 3(2) of Directive 2004/48 on the enforcement of intellectual property rights, interpreted in the light of Article 2(1) of the Paris Convention for the Protection of Industrial Property and of Article 41(1) and (2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement), which constitutes Annex 1C to the Agreement establishing the World Trade Organisation, approved by Decision 94/800 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations, are not applicable to a procedure for the invalidation of the protection of a utility model, those provisions do not preclude that, in such judicial proceedings, the court is not bound by the claims and other statements made by the parties and is entitled to order of its own motion the production of any evidence that it may deem necessary, is not bound by an administrative decision made in relation to an application for invalidation or by the findings of fact in that decision, and is not entitled to re-examine evidence which was already submitted in connection with a previous application for invalidation.

The abovementioned provisions are intended to govern only the aspects of intellectual property rights related to, first, the enforcement of those rights and, secondly, to infringement of them, by requiring that there must be effective legal remedies designed to prevent, terminate or rectify any infringement of an existing intellectual property right. It follows that those provisions simply ensure the enforcement of the various rights enjoyed by persons who have acquired intellectual property rights, namely the proprietors of such rights, and cannot be interpreted as being intended to govern the various measures and procedures available to persons who, without themselves being the proprietors of such rights, dispute the intellectual property rights acquired by others.

A procedure for the invalidation of the protection of a utility model is specifically available to a person who, without being the proprietor of an intellectual property right, disputes the protection of a utility model granted to the proprietor of the corresponding rights. Consequently, such a procedure is not intended to ensure, for the purposes of the relevant provisions, that proprietors of intellectual property rights are protected.

(see paras 75, 77-79, 82, operative part)
The Member States, when defining what land is to be regarded as being ‘building land’, must have regard to the objective pursued by Article 135(1)(k) of Directive 2006/112 on the common system of value added tax (VAT), which seeks to exempt from VAT only supplies of land which has not been built on and is not intended to support a building.

Thus, Article 135(1)(k) of Directive 2006/112, read in conjunction with Article 12(1) and (3) therein, must be interpreted as meaning that the exemption from VAT provided for in Article 135(1)(k) does not cover the supply of land which has not been built on following the demolition of the building situated on it, even where, at the time of that supply, improvement works on the land, apart from that demolition, had not been carried out, where it is apparent from an overall assessment of the factual circumstances surrounding that transaction and prevailing at the time of supply, including the intention of the parties when it is supported by objective evidence, that, at that time, the land at issue was in fact intended to be built on, a matter which is for the referring court to determine.

(see paras 30, 36, operative part)
Articles 63 and 65 of Directive 2006/112/EC on the common system of value added tax must be interpreted as meaning that, where a building right is established in favour of a company in order to erect a building, by way of consideration for construction services of certain real property in that building and that company has undertaken to deliver on a turn-key basis to the persons who established that building right, they do not preclude the value added tax on those construction services from becoming chargeable as from the moment when the building right is established, that is to say, before those services are performed, provided that, at the time that right is established, all the relevant information concerning that future supply of services is already known and, therefore, in particular, the services in question are precisely identified, and the value of that right may be expressed in monetary terms, which it is for the national court to verify.

The fact that the building right may be extinguished by reason of a limitation period provided for by the national legislation has no effect on that interpretation. Since that possibility constitutes a mere cancellation condition for the purposes of Article 90(1) of the Directive, the fact that such a condition may potentially be relied on in the future does not cast doubt on the fact that the transaction is completed at the time the building right is established if, at that time, all the relevant information concerning that future supply of services is already known and, therefore, in particular, the services in question are precisely identified.

Furthermore, in order to determine whether the conditions for chargeability of the value added tax owing on such a future supply of services are satisfied, it does not matter whether the consideration for that future supply of services itself constitutes a transaction which is subject to tax. In order for the value added tax owing on such a future supply of services to become chargeable, it is sufficient that all the relevant information concerning that future supply of services is already known and that the value of the corresponding consideration may be expressed in monetary terms.

(see paras 38-40, operative part 1)
Article 3 of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11 and by Directive 2003/35, must be interpreted as meaning that the environmental impact assessment, as provided for in that article, does not include the assessment of the effects which the project under examination has on the value of material assets. However, pecuniary damage, in so far as it is the direct economic consequence of the effects on the environment of a public or private project, is covered by the objective of protection pursued by Directive 85/337.

As regards compensation for such damage, the fact that an environmental impact assessment has not been carried out, in breach of the requirements of that directive, does not, in principle, by itself, according to European Union law, and without prejudice to rules of national law which are less restrictive as regards State liability, confer on an individual a right to compensation for purely pecuniary damage caused by the decrease in the value of his property as a result of the environmental effects of that project. However, it is for the national court to determine whether the requirements of European Union law applicable to the right to compensation, including the existence of a direct causal link between the breach alleged and the damage sustained, have been satisfied.

(see paras 30, 3,647, 48, operative part)
Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the site in the list of sites of Community importance, in accordance with the directive. The precautionary principle should be applied for the purposes of that appraisal.

More specifically, authorisation for a plan or project, as referred to in that provision, may be given only on condition that the competent authorities are certain that the plan or project will not have lasting adverse effects on the integrity of the site. That is so where no reasonable scientific doubt remains as to the absence of such effects. However, the competent national authorities cannot authorise an intervention where there is a risk that it will bring about the disappearance or the partial and irreparable destruction of a priority natural habitat type present on the site concerned.

(see paras 39, 40, 43, 48, operative part)
In matters of competition law, the Commission has discretion when choosing whether or not to impose a fine on an undertaking which has infringed Article 101 TFEU. Any possible limits to the discretion thus conferred on the Commission are governed exclusively by EU law, given that Article 23(2) of Regulation No 1/2003 makes no reference to the laws of the Member States. As regards the limits placed by EU law on the Commission’s discretion in such matters, Article 105(1) TFEU requires the Commission to ensure that the principles laid down in Article 101 TFEU, inter alia, are observed.

One of those principles is indisputably the imposition of fines, on the basis of Article 23(2) of Regulation No 1/2003, on undertakings which have entered into an anti-competitive agreement, which means that, where the Commission decides, exceptionally, not to impose a fine on an undertaking even though that undertaking has infringed the EU rules on competition, it must base its decision on objective reasons capable of justifying such a departure from the principles set out in Article 101 TFEU. One such objective reason can be the fact that the Commission is unable, in a specific case, to prove to the requisite legal standard that the parent company has exercised a decisive influence over the conduct of its subsidiary, that being the company which was immediately involved in the infringement. Proving such influence is significantly easier where a parent company holds 100% of the capital of a subsidiary.

In addition, the Commission’s obligation under Article 105(1) TFEU to ensure the application of the principles laid down in Article 101 TFEU, inter alia, when deciding whether or not to impose a fine applies in the same way, whichever of the two companies is concerned, the parent company or its subsidiary. There is no order of priority when the Commission is imposing a fine on one or other of those companies. Moreover, where the Commission adopts, in respect of a cartel, one specific method for determining whether the parent companies concerned are liable for the infringements engaged in by their subsidiaries, it must — unless there are special circumstances — use the same criteria for all those parent companies. It is only if there are objective reasons capable of justifying a departure from the principles laid down in Article 101 TFEU and if that decision does not lead to preferential treatment of one parent company as compared with the other parent companies involved in the infringement that the Commission is justified in not imposing a fine on that company.

(see paras 44, 46, 47, 49-51)
The freedom to provide services conferred by Article 56 TFEU on Member State nationals, and thus on European Union citizens, includes passive freedom to provide services, namely the freedom for recipients of services to go to another Member State in order to receive a service there, without being hindered by restrictions. Accordingly, tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services.

The notion of freedom to provide services in Article 41(1) of the Additional Protocol signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Regulation No 2760/72 must be interpreted as not encompassing freedom for Turkish nationals who are the recipients of services to visit a Member State in order to obtain services.

There are differences between the Association Agreement and its Additional Protocol on the one hand, and the Treaty on the other, on account, inter alia, of the link that exists between freedom to provide services and freedom of movement for persons within the European Union. In particular, the objective of Article 41(1) of the Additional Protocol and the context of that provision are fundamentally different from those of Article 56 TFEU, especially in so far as concerns the applicability of those provisions to recipients of services.

First of all, the EEC-Turkey Association pursues a solely economic purpose, intended essentially to promote the economic development of Turkey. On the other hand, the development of economic freedoms for the purpose of bringing about freedom of movement for persons of a general nature which may be compared to that afforded to European Union citizens under Article 21 TFEU is not the object of the Association Agreement. Neither that agreement and its Additional Protocol nor Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, which concerns only freedom of movement for workers, establishes any general principle of freedom of movement of persons between Turkey and the European Union. Furthermore, the Association Agreement guarantees the enjoyment of certain rights only within the territory of the host Member State. Accordingly, it is only where the activity in question is the corollary of the exercise of an economic activity that the ‘standstill’ clause may relate to the conditions of entry and residence of Turkish nationals within the territory of the Member States.

In second place, a ‘standstill’ clause such as that in Article 41(1) of the Additional Protocol does not itself create rights. It is a provision which prohibits the introduction of any new restrictive measure by reference to a specific date.

(see paras 49, 50, 53, 55, 58, 62, operative part)
Where the publication of a measure is provided for under EU law, it is only as of the time of publication that such persons are able to ascertain unequivocally what their rights and obligations are and to take the necessary measures accordingly.

An action for annulment may be brought against a measure such as a decision of the European Chemicals Agency (ECHA) identifying a substance as satisfying the criteria set out in Article 57 of Regulation No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) under the second sentence of the first paragraph of Article 263 TFEU, in so far as it was adopted by an agency of the European Union, and it is intended to produce legal effects vis-à-vis third parties. The legal obligations arising from the such a measure can be imposed on the persons concerned only after publication of the candidate list of substances containing that substance, such publication being provided for in Article 59(10) of Regulation No 1907/2006.

In order to allow the persons concerned sufficient time to challenge a published measure of the European Union in full knowledge of the facts, the time-limit for bringing an action against such a measure starts to run, in accordance with the sixth paragraph of Article 263 TFEU, only upon its publication. That provision does not prevent an applicant from lodging an application with the Court as soon as the contested decision has been adopted, without waiting for it to be notified or published, with the result that the action cannot be found to be inadmissible as a result of its having been lodged at the Court Registry prior to the publication of that decision. Although it is true that measures or decisions the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are measures or decisions which may be the subject of an action for annulment for the purposes of Article 263 TFEU, it is not stated in that article that the bringing of such an action is subject to the publication and notification of those measures.

Moreover, the bringing of an action against a European Union measure prior to its publication, provided that that measure has been adopted, does not jeopardise the objective of a time-limit for bringing proceedings, which is to protect legal certainty by ensuring that European Union measures which produce legal effects may not indefinitely be called into question. Consequently, while the publication of a measure commences the period for bringing proceedings on expiry of which that measure becomes final, it does not constitute a precondition for entitlement to bring proceedings against that measure.

(see paras 33, 35, 37-39)
Under the procedure laid down in Article 9 of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61, a national allocation plan (NAP) notified by a Member State to the Commission enjoys a presumption of legality, since, after the three-month time-limit laid down in Article 9(3) has expired, it is regarded as definitive where the Commission makes no observations, so that the Member State concerned may adopt it.

The Commission is bound by a three-month time-limit in which to reject a notified NAP. The need for that time-limit follows from the timetable laid down in Articles 9(1) and 11(2) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61. Under that timetable, the plans must be notified to the Commission at least 18 months before the start of the period concerned and implemented at the latest 12 months before the start of that period by an allocation of emission allowances. When an amended NAP is notified after rejection by the Commission of its initial version, compliance with that three-month time-limit is all the more necessary since the period remaining before the implementation of the plan is considerably shorter than when the NAP was first notified.

If the EU legislature considered that a three-month time-limit was sufficient for the Commission to be able to exercise its power of review and to reject a notified NAP if it fails to comply with the criteria set out in Annex III to Directive 2003/87, that time-limit must be regarded as being all the more sufficient for the purposes of review of an amended version of that NAP since the Commission has already been able to make an initial examination of the data concerning the national industry covered by the NAP.

Accordingly, the General Court did not err in law by holding that the Commission’s power to reject the amended version of an NAP after an initial rejection decision of the NAP in its original version must be subject to the three-month time-limit laid down in the first sentence of Article 9(3) of Directive 2003/87.

(see paras 52, 55, 58)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 39-41)

2. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58(1)) (see para. 50)

Subject of the case

Re:

Appeal against the judgment of the General Court (Sixth Chamber) of 24 March 2011 in Case T-54/09 XXXLutz Marken v OHIM — Natura Selection (Linea Natura Natur hat immer Stil) dismissing the action brought against the decision of the Second Board of Appeal of OHIM of 28 November 2008 (Case R 1787/2007-2) relating to opposition proceedings between Natura Selection, SL and XXXLutz Marken GmbH — Likelihood of confusion between the figurative signs ‘natura selection’ and ‘Linea Natura Natur hat immer Stil’ — Erroneous assessment of the similarity of those signs — Infringement of Article 8(1)(b) of Regulation (EC) No 40/94.

Operative part

Operative part

The Court:

1. Dismisses the appeal;

2. Orders XXXLutz Marken GmbH to pay the costs.