ddrg/super_eurlex huggingface dataset:
Judgment of the Court (Fifth Chamber) of 29 March 2012 —

Commission v Italy



(Case C‑243/10)

Failure of a Member State to fulfil obligations — State aid — Aid in favour of the hotel industry in Sardinia — Recovery

1. State aid — Recovery of unlawful aid — Obligation — Duty to carry out immediately and effectively the Commission’s decision (Art. 108(2) TFEU) (see paras 35, 36)

2. Actions for failure to fulfil obligations — Failure to fulfil the obligation to recover unlawful aid — Defences — Absolute impossibility of performance (Art. 4(3) TEU; Art. 108(2) TFEU) (see paras 40, 41, 45, 55)

3. Actions for failure to fulfil obligations — Failure to fulfil the obligation to recover unlawful aid — Defences — Legitimate expectations entertained by the recipients — Not included (Arts 107 TFEU and 108 TFEU) (see para. 47)

4. State aid — Recovery of unlawful aid — Application of national law — Adoption by the national court of provisional suspensory measures — Whether lawful — Conditions — An action before the General Court against a decision ordering the recovery of aid producing no suspensory effect (Council Regulation No 659/1999, Art. 14(3)) (see paras 48-50)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt, within the prescribed period, all the measures necessary to comply with Articles 2, 3 and 4 of Commission Decision 2008/854/EC of 2 July 2008 on a State aid scheme (C 1/04 (ex NN 158/03 and CP 15/2003)): Misuse of aid measure N 272/98, Regional Act No 9 of 1998 (notified under document number C(2008) 2997) (OJ 2008 L 302, p. 9).

Operative part

The Court:

1. Declares that, by not taking within the prescribed period all the measures necessary to recover from the recipients the aid granted under the aid scheme considered unlawful and incompatible with the common market by Commission Decision 2008/854/EC of 2 July 2008 on a State aid scheme (C 1/04 (ex NN 158/03 and CP 15/2003)): Misuse of aid measure N 272/98, Regional Act No 9 of 1998, the Italian Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision;
11

Section 188 of that Act, concerning the duty to consult, provides: ‘(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals. 1A) The consultation shall begin in good time and in any event: (a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and (b) otherwise, at least 30 days before the first of the dismissals takes effect. ... (2) The consultation shall include consultation about ways of: (a) avoiding the dismissals, (b) reducing the numbers of employees to be dismissed, and (c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives. ... ... (4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives: (a) the reasons for his proposals, (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant, (c) the total number of employees of any such description employed by the employer at the establishment in question, (d) the proposed method of selecting the employees who may be dismissed, (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect, and (f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed. ... (7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (1A), (2) or (4), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. ...’
3

Articles 76 A, 76 B and 76 C of the CIRC were worded as follows: ‘Article 76 A Transfer of residence 1. For the purpose of determining the taxable profit for a financial year in which there is cessation of the activity of an entity, including of a European company and of a European cooperative society, whose seat or effective management is in Portuguese territory, on account of the seat and effective management ceasing to be situated in that territory, the differences between the market values and the book values relevant for tax purposes of its assets at the date upon which activity ceases shall constitute gains or losses. 2. The provisions of paragraph 1 shall not apply to assets which in fact remain allotted to a permanent establishment of the same entity and contribute to its taxable profit, provided that the conditions laid down in Article 68(3) are met mutatis mutandis for those assets. 3. The provisions of Article 68(4) shall apply mutatis mutandis to determination of the permanent establishment’s taxable profit. 4. In the case referred to in paragraph 2, tax losses prior to the cessation of activity may be deducted from the taxable profit attributable to the permanent establishment of the non-resident entity, in accordance with the terms and conditions laid down in Article 15. 5. The special regime laid down in paragraphs 2, 3 and 4 shall not apply to the cases referred to in Article 67(10) of the CIRC. Article 76 B Cessation of activity of a permanent establishment The provisions of paragraph 1 of the preceding article shall apply mutatis mutandis to determination of the taxable profit attributable to a non-resident entity’s permanent establishment situated in Portuguese territory: (a) in the case of cessation of its activity in Portuguese territory; (b) in the case of the transfer outside Portuguese territory, whatever the substantive or legal method, of assets allotted to the permanent establishment. Article 76 C Regime applicable to members 1. For the financial year in which the registered office and the effective management are transferred outside Portuguese territory, account shall be taken, for the purpose of taxation of the members, of the difference between the net asset value at that date and the cost of acquiring the corresponding shares, applying mutatis mutandis the provisions of Article 75(2) and (4). 2. For the purpose of applying the provisions of the preceding paragraph, the assets shall be assessed at their market value. 3. Transfer of the seat of a European company or a European cooperative society shall not entail, in itself, application of the provisions of paragraph 1.’
50

Moreover, the manner in which the General Court assessed the ‘inertia’ on the part of the prescribing doctors in the context, first, of the market definition and, secondly, of the dominant position is not at all inconsistent, as claimed by the appellants. Although those assessments by the General Court admittedly produced different results, those differences are, as the Advocate General observed in point 32 of his Opinion, entirely justified in the light of the General Court’s specific findings of fact. Thus, so far as concerns market definition, the General Court concluded, as recalled at paragraph 47 of this judgment, that H2 blockers did not exercise a significant competitive constraint over PPIs and were therefore not part of the same market, since the inertia which characterised the prescription of PPIs was a result not of the therapeutic qualities of the H2 blockers, which were far inferior to those of the PPIs, but of uncertainty concerning the side-effects of PPIs. On the other hand, in the context of the assessment of the appellants’ dominant position on the PPI market, and therefore in relation to products which were therapeutically similar, the General Court found, at paragraph 278 of the judgment under appeal, that the status of AZ as producer of the first PPI on the market, enjoying a solid brand image and reputation, was further supported by the fact that doctors generally require time in order to learn about a new medicinal product and thus that they will hesitate to prescribe PPIs of other producers entering that market.
15

It is in those circumstances that the Haparanda tingsrätt decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: ‘1. Under Swedish law there must be clear support in the [ECHR] or the case-law of the European Court of Human Rights for a national court to be able to disapply national provisions which may be suspected of infringing the ne bis in idem principle under Article 4 of Protocol No 7 to the ECHR and may also therefore be suspected of infringing Article 50 of the [Charter]. Is such a condition under national law for disapplying national provisions compatible with European Union law and in particular its general principles, including the primacy and direct effect of European Union law? 2. Does the admissibility of a charge of tax offences come under the ne bis in idem principle under Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter where a certain financial penalty (tax surcharge) was previously imposed on the defendant in administrative proceedings by reason of the same act of providing false information? 3. Is the answer to Question 2 affected by the fact that there must be coordination of these sanctions in such a way that ordinary courts are able to reduce the penalty in the criminal proceedings because a tax surcharge has also been imposed on the defendant by reason of the same act of providing false information? 4. Under certain circumstances it may be permitted, within the scope of the ne bis in idem principle …, to order further sanctions in fresh proceedings in respect of the same conduct which was examined and led to a decision to impose sanctions on the individual. If Question 2 is answered in the affirmative, are the conditions under the ne bis in idem principle for the imposition of several sanctions in separate proceedings satisfied where in the later proceedings there is an examination of the circumstances of the case which is fresh and independent of the earlier proceedings? 5. The Swedish system of imposing tax surcharges and examining liability for tax offences in separate proceedings is motivated by a number of reasons of general interest … If Question 2 is answered in the affirmative, is a system like the Swedish one compatible with the ne bis in idem principle when it would be possible to establish a system which would not come under the ne bis in idem principle without it being necessary to refrain from either imposing tax surcharges or ruling on liability for tax offences by, if liability for tax offences is relevant, transferring the decision on the imposition of tax surcharges from the Skatteverket and, where appropriate, administrative courts to ordinary courts in connection with their examination of the charge of tax offences?’
Case C-134/11

Jürgen Blödel-Pawlik

v

HanseMerkur Reiseversicherung AG

(Reference for a preliminary ruling from the Landgericht Hamburg)

‛Directive 90/314/EEC — Package travel, package holidays and package tours — Article 7 — Protection against the risk of insolvency or bankruptcy on the part of the package organiser — Scope — Insolvency of the organiser on account of its fraudulent use of the funds transferred by consumers’

Summary of the Judgment

Approximation of laws — Package travel, package holidays and package tours — Directive 90/314 — Protection against the risk of insolvency or bankruptcy on the part of the package organiser — Scope — Insolvency due to the fraudulent conduct of the organiser — Included

(Council Directive 90/314, Art. 7)

Article 7 of Directive 90/314 on package travel, package holidays and package tours is to be interpreted as covering a situation in which the insolvency of the travel organiser is attributable to its own fraudulent conduct.

(see para. 25, operative part)

Case C-134/11

Jürgen Blödel-Pawlik

v

HanseMerkur Reiseversicherung AG

(Reference for a preliminary ruling from the Landgericht Hamburg)

‛Directive 90/314/EEC — Package travel, package holidays and package tours — Article 7 — Protection against the risk of insolvency or bankruptcy on the part of the package organiser — Scope — Insolvency of the organiser on account of its fraudulent use of the funds transferred by consumers’

Summary of the Judgment

Approximation of laws — Package travel, package holidays and package tours — Directive 90/314 — Protection against the risk of insolvency or bankruptcy on the part of the package organiser — Scope — Insolvency due to the fraudulent conduct of the organiser — Included

(Council Directive 90/314, Art. 7)

Article 7 of Directive 90/314 on package travel, package holidays and package tours is to be interpreted as covering a situation in which the insolvency of the travel organiser is attributable to its own fraudulent conduct.

(see para. 25, operative part)
Keywords

Summary



Keywords

Freedom to provide services – Restrictions – Tax legislation – National legislation granting a tax credit on income from loans provided to certain companies for the acquisition of new assets used in national territory

(Art. 49 EC)

Summary

Article 49 EC must be interpreted as precluding a legislative provision of a Member State which provides for the grant of a tax credit on income from loans provided to certain companies for the acquisition of new assets used in national territory subject to the condition that the right to use the asset is not transferred, by the company which acquired it through the loan conferring entitlement to the tax credit or by any other company in the same group, to third parties other than members of that group established in that Member State.

Such a national provision is likely to discourage undertakings that would be eligible for that tax advantage from providing services intended to finance the acquisition of assets when the right to use will be transferred to economic operators established in other Member States. Similarly, given that the tax advantage may be added to the cost of the loan borne by the borrower, such a provision is likely to discourage undertakings wishing to acquire an asset by means of a loan from providing services leading to the transfer of the right to use that asset, such as leasing services, to economic operators established in other Member States. Furthermore, if it is not only the undertaking which acquires the asset by means of the loan conferring entitlement to the tax advantage, but also all the companies belonging to the same group as that company, that may not transfer the right to use to economic operators established in other Member States, that provision is likely to discourage those companies too from carrying out cross-border activities which lead to the transfer of that right to use.

(see paras 23-25, 29, operative part)
Keywords



Keywords

Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility — Entry into force of the Treaty of Lisbon — New fact warranting the late introduction of a head of claim based on breach of the right to a fair hearing — Excluded (Art. 6(2) TEU; Charter of Fundamental Rights of the European Union, Art. 47; Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court of Justice, Arts 42(2) and 113(2)) (see paras 33, 35, 36)

2. Competition — Rules of the Union — Infringements — Attribution — Parent company and subsidiaries — Unilateral conduct — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 45‑47)

3. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 51, 53)
Case C-166/11

Ángel Lorenzo González Alonso

v

Nationale Nederlanden Vida Cía de Seguros y Reaseguros SAE

(Reference for a preliminary ruling

from the Audiencia Provincial de Oviedo)

‛Consumer protection — Contracts negotiated away from business premises — Directive 85/577/EEC — Scope — Not included — Unit-linked insurance contracts’

Summary of the Judgment

Approximation of laws — Protection of consumers in the case of contracts negotiated away from business premises — Directive 85/577 — Scope

(Council Directive 85/577, Art. 3(2)(d))

A contract concluded away from business premises, under which life assurance is offered in return for payment of a monthly premium to be invested, in varying proportions, in fixed-rate investments, variable-rate investments and financial investment products of the company offering the contract falls outside the scope of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, in accordance with Article 3(2)(d) thereof.

(see para. 34, operative part)

Case C-166/11

Ángel Lorenzo González Alonso

v

Nationale Nederlanden Vida Cía de Seguros y Reaseguros SAE

(Reference for a preliminary ruling

from the Audiencia Provincial de Oviedo)

‛Consumer protection — Contracts negotiated away from business premises — Directive 85/577/EEC — Scope — Not included — Unit-linked insurance contracts’

Summary of the Judgment

Approximation of laws — Protection of consumers in the case of contracts negotiated away from business premises — Directive 85/577 — Scope

(Council Directive 85/577, Art. 3(2)(d))

A contract concluded away from business premises, under which life assurance is offered in return for payment of a monthly premium to be invested, in varying proportions, in fixed-rate investments, variable-rate investments and financial investment products of the company offering the contract falls outside the scope of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, in accordance with Article 3(2)(d) thereof.

(see para. 34, operative part)
Keywords

Summary



Keywords

Competition — Agreements, decisions and concerted practices — Prohibition — Block exemption — Agreements in the motor industry — Regulation No 1400/2002 — Quantitative selective distribution system — Selection of distributors or repairers on the basis of ‘specified criteria’ — Notion

(Art. 101 TFEU; Commission Regulation No 1400/2002, Art. 1(1)(f))

Summary

The term ‘specified criteria’, referred to in Article 1(1)(f) of Commission Regulation No 1400/2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector, means, with respect to a quantitative selective distribution system within the meaning of that regulation, criteria the precise content of which may be verified. In order to benefit from the exemption provided for by that regulation, it is not necessary for such a system to be based on criteria that are objectively justified and applied in a uniform and non-differentiated manner in respect of all applicants for authorisation.

It is not apparent from the scheme of Regulation No 1400/2002 that the legislature wished to impose the same conditions of exemption for the quantitative and qualitative systems of selective distribution. On the contrary, given that the regulation envisages distinct exemption conditions according to whether the selective distribution in question is classified as ‘quantitative’ or ‘qualitative’, the elements set out only in Article 1(h) of the regulation cannot also be applied to Article(1)(g) of that regulation, without conflating those two types of selective distribution.

(see paras 36, 39, operative part)
Articles 3 and 4 of Regulation No 469/2009 concerning the supplementary protection certificate for medicinal products must be interpreted as meaning that the mere existence of an earlier marketing authorisation obtained for a veterinary medicinal product does not preclude the grant of a supplementary protection certificate for a different application of the same product for which a marketing authorisation has been granted, provided that the application is within the limits of the protection conferred by the basic patent relied upon for the purposes of the application for the supplementary protection certificate.

In those circumstances, Article 13(1) of Regulation No 469/2009 must be interpreted as meaning that it refers to the marketing authorisation of a product which comes within the limits of the protection conferred by the basic patent relied upon for the purposes of the application for the supplementary protection certificate.

Those answers would not be different if, in a situation such as that in the main proceedings where the same active ingredient is present in two medicinal products having obtained successive marketing authorisation, the second marketing authorisation required a full application in accordance with Article 8(3) of Directive 2001/83 on the Community code relating to medicinal products for human use, or if the product covered by the first marketing authorisation of the corresponding medicinal product is within the scope of protection of a different patent which belongs to a different registered proprietor from the supplementary protection certificate applicant.

(see paras 27, 31, 35, operative part 1-3)
Clause 4 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be understood as precluding national legislation which completely prohibits periods of service completed by a fixed-term worker for a public authority being taken into account in order to determine the length of service of that worker upon his recruitment on a permanent basis by that same authority as a career civil servant under a stabilisation procedure specific to his employment relationship, unless that prohibition is justified on ‘objective grounds’ for the purposes of clause 4(1) and/or (4). The mere fact that the fixed-term worker completed those periods of service on the basis of a fixed-term employment contract or relationship does not constitute such an objective ground.

Moreover, although the objective of preventing reverse discrimination against career civil servants recruited after passing a general competition may constitute an ‘objective ground’ for the purposes of clause 4(1) and/or (4) of the framework agreement, it cannot, in any event, justify disproportionate national legislation which completely and in all circumstances prohibits all periods of service completed by workers under fixed-term employment contracts being taken into account in order to determine the length of service of those workers upon their recruitment on a permanent basis and, thus, their level of remuneration. Such a complete and absolute prohibition is essentially based on the general premiss that the permanent nature of the employment relationship of certain public officials in itself justifies a difference in treatment with respect to public officials employed on a fixed-term basis, thereby rendering the objectives of Directive 1999/70 and of the framework agreement meaningless.

As regards the fact that the stabilisation procedure gives rise, in national law, to a new employment relationship, the principle of non-discrimination set out in clause 4 of the framework agreement would be devoid of all content if that fact alone were able to constitute an ‘objective ground’ for the purposes of that clause capable of justifying a difference in treatment concerning taking into account, upon the recruitment on a permanent basis by a public authority of previously fixed-term workers, the length of service accrued by those workers for that authority under their fixed-term employment contracts.

(see paras 62, 63,65, 71, operative part)