ddrg/super_eurlex huggingface dataset:
Article 1(2) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that the fact that a person who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, or to negotiate and conclude such transactions on behalf of and in the name of that person, performs his activities from the latter’s business premises does not prevent him from being classified as a ‘commercial agent’ within the meaning of that provision, provided that that fact does not prevent that person from performing his activities in an independent manner, which is for the referring court to ascertain.

Article 1(2) of Directive 86/653 lays down the three necessary and sufficient conditions for a person to be classified as a ‘commercial agent’. First, that person must be a self-employed intermediary. Second, the contractual relationship must be of a continuing character. Third, he must exercise, on behalf of and in the name of the principal, an activity which may consist either simply in being an intermediary for the sale or purchase of goods or in both acting as intermediary and concluding sales or purchases of goods.

Therefore, it is sufficient that a person satisfies those three conditions to be classified as a ‘commercial agent’ within the meaning of Article 1(2) of Directive 86/653, regardless of the arrangements under which he performs his activities, and provided that he does not fall within one of the exclusions laid down by Article 1(3) and Article 2 of that directive.

In that context, in the absence of any provision in that directive requiring that the commercial agent perform his activity in an itinerant manner external to the principal’s premises, it must be held that the benefit of the protection conferred by that directive must also be extended to persons who, as in the case in the main proceedings, perform their activity from within that establishment (see, by analogy, judgment of 30 April 1998, Bellone, C‑215/97, EU:C:1998:189, paragraph 13).

(see paras 23, 24, 28, 36, operative part 1)
1.

Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that regulation, and by failing to communicate to the European Commission the text of the provisions adopted to transpose that implementing directive, the Kingdom of Spain has failed to fulfil its obligations under that implementing directive, in particular under the first paragraph of Article 13 thereof;
Appeal — 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 — Ground of appeal alleging distortion of the clear sense of the evidence — Need to indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to that distortion

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see pars 40, 70)
Given that, if the prohibition on placing on the market tobacco products for oral use were to be lifted, the positive effects would be uncertain with respect to the health of consumers seeking to use those products as an aid to the cessation of smoking and, moreover, there would be risks to the health of other consumers, particularly young people, requiring the adoption, in accordance with the precautionary principle, of restrictive measures, Article 1(c) and Article 17 of Directive 2014/40 cannot be regarded as being manifestly inappropriate to the objective of ensuring a high level of public health. Conversely, less restrictive measures, such as those laid down for other tobacco products in Directive 2014/40, in particular the strengthening of health warnings and the prohibition on flavoured tobacco, do not appear to be equally appropriate to achieving the objective pursued.

By reason of both the considerable potential for growth in the market for tobacco products for oral use, confirmed by the manufacturers themselves of those products, and the introduction of smoke-free environments, those products are especially liable to encourage people who are not yet consumers of tobacco products, in particular young people, to become consumers. Moreover, tobacco products for oral use are particularly dangerous for minors because of the fact that their consumption is hardly noticeable. The consumption of such a product generally involves placing the product between the gum and upper lip and keeping it in place (see, to that effect, judgment of 14 December 2004, Arnold André, C‑434/02, EU:C:2004:800, paragraph 19). Consequently, the prohibition on the placing of tobacco products for oral use on the market does not manifestly exceed what is necessary in order to attain the objective of ensuring a high level of protection of public health.

With respect to the objective of facilitating the smooth functioning of the internal market of tobacco and related products, it must be stated that the prohibition on the placing on the market of tobacco products for oral use laid down by those provisions is also appropriate to facilitating the smooth functioning of the internal market of tobacco and related products. The Court observed in paragraph 37 of its judgment of 14 December 2004, Swedish Match (C‑210/03, EU:C:2004:802), that there were differences, at the time of adoption of Directive 92/41, between the laws, regulations and administrative provisions of the Member States intended to stop the expansion in consumption of products harmful to health which were novel to the markets of the Member States and were thought to be especially attractive to young people. Accordingly, Article 1(c) and Article 17 of Directive 2014/40 do not lead to disadvantages that are manifestly disproportionate to the aims pursued.

(see paras 49-53, 55, 56, 61)
Under Article 127(1) of the Rules of Procedure of the Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

The forms of order sought by the parties may not, in principle, be altered. Article 86 of the Rules of Procedure of the General Court, on the modification of the application initiating proceedings, is a codification of pre-existing case-law on the admissible exceptions to the principle that the forms of order sought by the parties are unalterable. Article 86 provides that where a measure the annulment of which is sought is replaced or amended by another measure with the same subject-matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor. As an exception to the principle of unalterability of proceedings, Article 86 must, accordingly, be interpreted strictly.

In that respect, while Article 84 of those Rules of Procedure allows the applicant only to introduce new pleas in law, by contrast Article 86 thereof allows that party to modify the subject matter of the application, that is to say, to reformulate the forms of order sought where, as in the present case, a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter. The applicant is required, in a statement in modification of the application, to set out unambiguously and in a sufficiently clear and precise manner the subject matter of the proceedings and the form of order sought by the applicant, so that the General Court does not rule ultra petita. On that basis, a statement in modification must, in accordance with Article 86(4)(a) of the Rules of Procedure of the General Court, contain, inter alia, the modified form of order sought.

(see paras 52-54, 56, 59)
Case C‑367/17

S

v

EA and Others

(Request for a preliminary ruling from the Bundespatentgericht)

(Reference for a preliminary ruling — Agriculture — Regulation (EC) No 510/2006 — Article 4(2)(e) — Regulation (EU) No 1151/2012 — Article 7(1)(e) — Protection of geographical indications and designations of origin — Application to amend the product specification — Ham originating from the Black Forest, Germany (‘Schwarzwälder Schinken’) — Requirements to package in the area of production — Applicability of Regulation (EC) No 510/2006 or of Regulation (EU) No 1151/2012)

Summary — Judgment of the Court (First Chamber), 19 December 2018

Agriculture — Uniform legislation — Protection of geographical indications and designations of origin for agricultural products and foodstuffs — product covered by a protected geographical indication — requirement to package the product in its geographical area of production — Lawfulness — Conditions — Proportionality — Verification by the national court

(European Parliament and Council Regulation No 1151/2012, Art. 7(1)(e); Council Regulation No 510/2006, Art. 4(2)(e); Commission Regulation 1898/8, Art. 8)

Article 4(2)(e) of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, in conjunction with Article 8 of Commission Regulation (EC) No 1898/2006 of 14 December 2006 laying down detailed rules of implementation of Regulation No 510/2006, and Article 7(1)(e) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs, must be interpreted as meaning that the requirement to package a product covered by a protected geographical indication in its geographical area of production is justified, under Article 4(2)(e), if it constitutes a necessary and proportionate means to safeguard the quality of the product, to guarantee its origin or to ensure the verification of the specification of the protected geographical indication. It is for the national court to assess whether that requirement is duly justified by one of the objectives mentioned above, regarding the protected geographical indication ‘Schwarzwälder Schinken’.

(see para 36, operative part)
11

Part One of the CN contains a series of preliminary provisions. In Section I of Part One, which contains general rules, subsection A, entitled ‘General rules for the interpretation of the [CN]’, provides: ‘Classification of goods in the [CN] shall be governed by the following principles: 1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. … 3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: (a) the heading which provides the most specific description shall be preferred to headings providing a more general description. … … 6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’
8

Article 59 of the Family Code provides: ‘(1) In the event of divorce, the spouses shall make decisions by mutual agreement on the custody and upbringing of minors from the marriage, in the interest of those minors. The court shall validate the agreement pursuant to Article 49(5). (2) If the spouses fail to reach the agreement referred to in paragraph 1, the court shall decide of its own motion with which parent the children will live and to which parent custody is awarded and shall prescribe measures relating to the exercise of that right and determine the arrangements for the parents’ rights of access and maintenance obligations. … (7) By way of exception, if the interests of the children so require, the court can make an order for them to live with their grandfather or grandmother or with the family of other relations or relatives, with their agreement. If this should not be possible, the child shall be placed with a foster family or in a specialised establishment, designated by the Social Services Directorate, or in a residential care centre. At all events, the court shall make the appropriate arrangements for the parents’ rights of access to the child. (8) In so far as necessary, the court shall order appropriate protective measures in order to secure implementation of the decision under paragraphs 2 and 7 hereof, such as: 1. exercise of rights of access in the presence of a specified person; 2. exercise of rights of access at a specified place; 3. responsibility for the child’s travel expenses and, where necessary, the travelling expenses of an accompanying person. (9) If there is a change of circumstances, the court may, upon application by a parent or by the Social Services Directorate or of its own motion, amend the measures previously ordered and order new measures.’
66

In the light of all of the foregoing, the answer to the questions referred is that Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that a child’s place of habitual residence for the purpose of that regulation is the place which, in practice, is the centre of that child’s life. It is for the national court to determine, on the basis of a consistent body of evidence, where that centre was located at the time the application concerning parental responsibility over the child was submitted. In that regard, in a case such as that in the main proceedings, having regard to the facts established by that court, the following, taken together, are decisive factors: – the fact that, from its birth until its parents’ separation, the child generally lived with those parents in a specific place; – the fact that the parent who, in practice, has had custody of the child since the couple’s separation continues to stay in that place with the child on a daily basis and is employed there under an employment contract of indefinite duration; and – the fact that the child has regular contact there with its other parent, who is still resident in that place. By contrast, in a case such as that in the main proceedings, the following cannot be regarded as decisive: – the stays which the parent who, in practice, has custody of the child has spent in the past with that child in the territory of that parent’s Member State of origin in the context of leave periods or holidays; – the origins of the parent in question, the cultural ties which the child has with that Member State as a result, and the parent’s relationships with family residing in that Member State; and – any intention the parent has of settling in that Member State with the child in the future.
7

Article 91 of that regulation provides: ‘1. Where a beneficiary referred to in Article 92 does not comply with the rules on cross-compliance as laid down in Article 93, an administrative penalty shall be imposed on that beneficiary. 2. The administrative penalty referred to in paragraph 1 shall only apply where the non-compliance is the result of an act or omission directly attributable to the beneficiary concerned; and where one, or both, of the following additional conditions are met: (a) the non-compliance is related to the agricultural activity of the beneficiary; (b) the area of the holding of the beneficiary is concerned. … 3. For the purpose of this Title the following definitions shall apply: (a) “holding” means all the production units and areas managed by the beneficiary referred to in Article 92 situated within the territory of the same Member State; (b) “requirement” means each individual statutory management requirement under Union law referred to in Annex II within a given act, differing in substance from any other requirements of the same act.’
9

The Explanatory Notes to the HS for heading 8525 are worded as follows: ‘B. Television cameras, digital cameras and video camera recorders This group covers cameras that capture images and convert them into an electronic signal that is: (1) transmitted as a video image to a location outside the camera for viewing or remote recording (i.e., television cameras); or (2) recorded in the camera as a still image or as a motion picture (i.e., digital cameras and video camera recorders). Many of the cameras of this heading may physically resemble the photographic cameras of heading 90.06 or the cinematographic cameras of heading 90.07. The cameras in heading 85.25 and the cameras in Chapter 90 typically include optical lenses to focus the image on a light-sensitive medium and adjustments to vary the amount of light entering the camera. However, photographic and cinematographic cameras of Chapter 90 expose images onto photographic film of Chapter 37, while the cameras of this heading convert the images into analogue or digital data. The cameras of this heading capture an image by focusing the image onto a light-sensitive device, such as a complementary metal oxide semiconductor (CMOS) or charge-coupled device (CCD). The light-sensitive device sends an electrical representation of the images to be further processed into an analogue or digital record of the images. Television cameras may or may not have an incorporated device for remote control of lens and diaphragm as well as for remote control of the horizontal and vertical movement of the camera (e.g., television cameras for television studios or for reporting, those used for industrial or scientific purposes, in closed circuit television (surveillance) or for supervising traffic). These cameras do not have any inbuilt capability of recording images. Some of these cameras may also be used with automatic data processing machines (e.g., webcams). … In digital cameras and video camera recorders, images are recorded onto an internal storage device or onto media (e.g., magnetic tape, optical media, semiconductor media or other media of heading 85.23). They may include an analogue/digital converter (ADC) and an output terminal which provides the means to send images to units of automatic data processing machines, printers, televisions or other viewing machines. Some digital cameras and video camera recorders include input terminals so that they can internally record analogue or digital image files from such external machines. Generally, the cameras of this group are equipped with an optical viewfinder or a liquid crystal display (LCD), or both. Many cameras equipped with an LCD can employ the display both as a viewfinder when capturing images and as a screen for displaying images received from other sources or for reproducing images already recorded.’
6

Article 4 of that directive is worded as follows: ‘1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground. Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.’
6

Article 8 of that protocol, entitled ‘Designation of the applicable law’, is worded as follows: ‘1. Notwithstanding Articles 3 to 6, the maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation: … (b) the law of the State of the habitual residence of either party at the time of designation; … 3. Paragraph 1 shall not apply to maintenance obligations in respect of a person under the age of 18 years or of an adult who, by reason of an impairment or insufficiency of his or her personal faculties, is not in a position to protect his or her interest. 4. Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the State of the habitual residence of the creditor at the time of the designation. 5. Unless at the time of the designation the parties were fully informed and aware of the consequences of their designation, the law designated by the parties shall not apply where the application of that law would lead to manifestly unfair or unreasonable consequences for any of the parties.’