ddrg/super_eurlex huggingface dataset:
Case C‑290/15

Patrice D’Oultremont and Others

v

Région wallonne

(Request for a preliminary ruling from the

Conseil d’État (Belgium))

‛Reference for a preliminary ruling — Assessment of the effects of certain plans and programmes on the environment — Directive 2001/42/EC — Articles 2(a) and 3(2)(a) — Definition of ‘plans and programmes’ — Conditions concerning the installation of wind turbines laid down by a regulatory order — Provisions concerning, inter alia, safety, inspection, site restoration and financial collateral and permitted noise levels set having regard to area use)’

Summary — Judgment of the Court (Second Chamber), 27 October 2016

Environment — Assessment of the effects of certain plans and programmes on the environment — Directive 2001/42 — Plan and programme — Definition — Conditions concerning the installation of wind turbines laid down by regulatory order — Included

(European Parliament and Council Directive 2001/42, Arts 2(a) and 3(2)(a))

Articles 2(a) and 3(2)(a) of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment must be interpreted as meaning that a regulatory order containing various provisions on the installation of wind turbines which must be complied with when administrative consent is granted for the installation and operation of such installations comes within the notion of ‘plans and programmes’, within the meaning of that directive.

The assessment of the criteria laid down in those provisions for determining whether an order may come within that definition must in particular be carried out in the light of the objective of that directive, which is to make decisions likely to have significant environmental effects subject to an environmental assessment.

Furthermore, it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the practical effect of that directive. Having regard to that objective, the notion of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment.

In that regard, technical standards, operating conditions, the prevention of accidents and fires, noise level standards, restoration and financial collateral for wind turbines have a sufficiently significant importance and scope in the determination of the conditions applicable to the sector concerned and the choices, in particular related to the environment, available under those standards must determine the conditions under which actual projects for the installation and operation of wind turbine sites may be authorised in the future.

(see paras 47-50, 54, operative part)
Article 45 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which has the effect that a national official seconded to an EU institution or body who chooses to remain affiliated to the national pension scheme for the duration of his secondment loses all or part of the advantages accruing from his affiliation to that scheme if he completes 10 years’ service with the European Union entitling him to a pension under the European Union pension scheme.

Thus, if an official seconded to an EU institution or body remains affiliated to his national pension scheme during his secondment, that national legislation makes the pension resulting from that affiliation subject to a ceiling rule and a capping rule. Under those rules, the amount of the pension which the official will receive under the national pension scheme may supplement the pension received under the EU pension scheme only to the extent of the pension which he would have acquired under the national scheme if there had been no secondment and the national retirement pension is reduced by the amount of the pension due under the EU pension scheme in such a way that the aggregated amount of the two pensions does not exceed the ceiling thus fixed.

In such circumstances, an official who remains affiliated to the national pension scheme makes contributions which are non-recoverable. Those ceiling and capping rules are thus likely to hinder or make less attractive the exercise by such an official of his freedom guaranteed under Article 45 TFEU.

The optional nature of the maintenance of the affiliation to the national pension scheme does not alter the fact that the ceiling and capping rules applying when that option is exercised have the effect that an official who exercises that option has paid contributions which are non-recoverable if he completes 10 years’ service with the EU entitling him to a pension under the EU pension scheme. When a national pension scheme allows seconded officials to remain affiliated, that option must be so conceived as not to have such an effect, otherwise it constitutes an obstacle to the freedom of movement for workers.

In fact, such legislation places a seconded official who is affiliated both to the EU pension scheme and to the national pension scheme at a disadvantage compared with an official who remains in the Member State of origin who is affiliated only to the latter scheme inasmuch as only the first official, while having contributed to two schemes at once, suffers a loss of all or part of the advantages accruing from his affiliation to the national pension scheme if he becomes entitled to a pension under the EU pension scheme.

(see paras 29, 30, 32, 34, 38, operative part)
The duty to act diligently which is inherent in the principle of sound administration and applies generally to the actions of the EU administration in its relations with the public requires that that administration act with care and caution. In that respect, where an administration is called upon to conduct an inquiry, it is for that administration to conduct it with the greatest possible diligence in order to dispel the doubts which exist and to clarify the situation.

In order for it to be concluded that there is a sufficiently serious breach of the Ombudsman’s duty to act diligently, it is necessary to establish that, by failing to act with all the requisite care and caution, the Ombudsman gravely and manifestly disregarded the limits on her discretion in the exercise of her powers of investigation. Whilst having regard to that context, account must, to that end, be taken of all aspects characterising the situation concerned, including, in particular, the obviousness of the lack of care shown by the Ombudsman in the conduct of the investigation, whether it was excusable or inexcusable, or whether the conclusions drawn from the Ombudsman’s examination were inappropriate and unreasonable.

A mere breach of the principle of diligence is not sufficient to establish the existence of a sufficiently serious breach that may render the European Union liable. Only a sufficiently serious breach, not merely any breach, of a rule of EU law protecting individuals is capable of giving rise to non-contractual liability on the part of the European Union. Furthermore, where an EU institution or body has been given a discretion, only that particular institution’s or body’s manifest and grave disregard of the limits on that discretion is capable of constituting a sufficiently serious breach of EU law. The same applies in the event of a breach by the Ombudsman of the duty to act diligently, which does not automatically amount to unlawful conduct that may result in liability being incurred by the European Union, but must be assessed taking into account the fact that, in the performance of her duties, the Ombudsman is merely under an obligation to use her best endeavours and enjoys very wide discretion as regards (i) the merits of complaints and the way in which they are to be dealt with; (ii) the way in which open inquiries and investigations are to be conducted; and (iii) analysis of the information gathered and the conclusions to be drawn from that analysis.

(see paras 36-38, 41)
Case C‑321/15

ArcelorMittal Rodange and Schifflange SA

v

État du Grand-duché de Luxembourg

(Request for a preliminary ruling

from the Cour constitutionnelle (Luxembourg))

(Reference for a preliminary ruling — Environment — Scheme for greenhouse gas emissions allowance trading in the European Union — Directive 2003/87/EC — Article 3(a) — Articles 11 and 12 — Cessation of activities of an installation — Surrender of unused allowances — Period from and including 2008 to 2012 — No compensation — Broad logic of the greenhouse gas emissions allowance trading scheme)

Summary — Judgment of the Court (Fifth Chamber), 8 March 2017

Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Cessation of activities of an installation — Failure by the operator to fulfil the obligation to inform the competent authority in a timely manner — National legislation requiring the surrender of unused allowances without compensation — Lawfulness — Categorisation of unused allowances as emissions allowances within the meaning of the directive — Not included

(European Parliament and Council Directive 2003/87, as amended by Regulation No 219/2009, Art. 3(a))

Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Regulation (EC) No 219/2009 of the European Parliament and of the Council of 11 March 2009, must be interpreted as not precluding national legislation which allows the competent authority to require the surrender, without full or partial compensation, of unused allowances which have been improperly issued to an operator, as a result of the failure by the latter to comply with the obligation to inform the competent authority in due time of the cessation of the operation of an installation.

The allowances issued after an operator has ceased the activities performed in the installation to which those allowances relate, without informing the competent authority beforehand, cannot be classified as emissions ‘allowances’ within the meaning of Article 3(a) of Directive 2003/87, as amended by Regulation No 219/2009.

(see para. 40, operative part)
Case C‑632/15

Costin Popescu

v

Guvernul României and Others

(Request for a preliminary ruling from the Înalta Curte de Casație şi Justiție)

(Reference for a preliminary ruling — Transport — Road transport — Driving licences — Directive 2006/126/EC — Article 13(2) — Concept of ‘entitlement to drive granted before 19 January 2013’ — National legislation transposing the directive — Obligation to obtain a driving licence imposed on persons who were allowed to ride a moped without a licence before the entry into force of that legislation)

Summary — Judgment of the Court (Fourth Chamber), 26 April 2017

Transport — Road transport — Driving licences — Directive 2006/126 — Maintenance of entitlements to drive granted before the entry into force of the directive — National legislation terminating the possibility of riding mopeds without holding a driving licence — Lawfulness

(European Parliament and Council Directive 2006/126, Art. 13(2))

The provisions of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences, in particular Article 13(2), must be interpreted as not precluding national legislation, adopted in order to transpose that directive into national law, which terminates the authorisation to ride mopeds without holding a driving licence, the issue of which is subject to passing tests or examinations similar to those required for driving other motor vehicles.

(see para. 48, operative part)
Appeal—Jurisdiction of the Court—Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty—Not included—Challenge to that assessment on grounds alleging breach of the principle of proportionality—Lawfulness

(Arts 101 TFEU, 102 TFEU, 256 TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31)

(see para. 62)
Appeal—Grounds—Distortion of the facts and evidence—Requirement that the distortion be manifestly apparent from the documents before the Court

(Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 60-64)
Any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of Article 263 TFEU.

That is not the case of letters sent to a Member State by a director of the Commission in which the latter, on the one hand, expressed the view of his Directorate that that Member State was considered liable for the loss of own resources incurred in another Member State and, on the other hand, explained its opinion as to the legal consequences of those losses and the obligations which, according to him, would result for the receiving Member State, while inviting that Member State to make available the amounts at issue. Firstly, neither the statement of a simple legal opinion, nor a simple request to make available the amounts in question can be capable of producing legal effects. Furthermore, it cannot be inferred from the mere fact that the letters at issue lay down a time limit for making those amounts available, whilst indicating that a delay may give rise to default interest, in view of the overall content of those letters, that the Commission intended, rather than expressing its opinion, to adopt measures which have binding legal effects or, therefore, to confer on those letters the nature of actionable measures.

Secondly, as regards the context, the dispatch of letters such as the letters at issue was a common practice of the Commission intended to initiate informal discussions on a Member State’s compliance with EU law, which could be followed by the initiation of the pre-litigation phase of an infringement procedure. In view of the Commission’s discretion to initiate infringement proceedings, a reasoned opinion is not capable of producing binding legal effects. The same applies a fortiori to letters, which can be regarded as simple informal contacts prior to the opening of the pre-litigation phase of an action for failure to fulfil obligations. Finally, as regards the powers of the Commission, that institution has no power to adopt binding acts requiring a Member State to make available the amounts at issue.

(see paras 46, 58-64)
Article 2(2)(c) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as meaning that that directive is not applicable to fees/charges for the payment of which liability is connected with the rights of undertakings authorised to provide electronic communications networks and services to install cables for a public electronic communications network.

The provisions of Chapter III of Directive 2006/123, on freedom of establishment of providers, must be interpreted as meaning that they also apply to a situation where all the relevant elements are confined to a single Member State.

In that regard, it must, first, be noted that the wording of those provisions does not lay down any condition as to the existence of a foreign element. In particular, Article 9(1), Article 14 and Article 15(1) of Directive 2006/123, which relate, respectively, to authorisation schemes, prohibited requirements and requirements to be evaluated, make no reference to any cross-border aspect. Further, as regards the context of Chapter III of Directive 2006/123, Article 2(1) of that directive provides, in general terms, without making any distinction between service activities containing a foreign aspect and service activities that have no such aspect, that that directive is to apply to ‘services supplied by providers established in a Member State’.

Last, the interpretation that the provisions of Chapter III of Directive 2006/123 are applicable not only to the provider who wishes to become established in another Member State but also to the provider who wishes to become established in his own Member State is consistent with the objectives pursued by that directive. In that regard, it must be observed that Directive 2006/123, as is apparent from Article 1 thereof, read together with recitals 2 and 5, lays down general provisions that are intended to remove restrictions on the freedom of establishment for service providers in Member States and on the free movement of services between the Member States, in order to contribute to the completion of a free and competitive internal market (judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 44). If, however, the internal market in services is to be fully achieved, that requires, above all, the elimination of obstacles which are encountered by providers in becoming established in the Member States, whether in their own Member State or in another Member State, and which are liable to affect adversely their ability to supply services to recipients located throughout the European Union.

(see paras 99, 100, 103-105, 110, operative part 3)
Appeal—Grounds—Mistaken assessment of the facts—Inadmissibility—Review by the Court of Justice of the assessment of the facts put before the General Court—Possible only where the clear sense of the evidence has been distorted

(Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d))

(see paras 56-58, 91-93, 111)
8

Pursuant to the second indent of Article 9(1)(a) of Regulation No 2658/87, the Commission draws up explanatory notes to the CN, which it publishes regularly in the Official Journal of the European Union. The notes published on 30 May 2008 (OJ 2008 C 133, p. 1), which were applicable at the time of the facts in the main proceedings, state, under subheading 9027 10 10 of the CN: ‘This subheading includes laser air-particle counters. These are electronic devices which determine or monitor the dust content of filtered air, for example, in industrial plants or in the medical field. The dust particles contained in the air sample cause a laser beam to produce scattered light in the measurement chamber of the device which, after being concentrated into a beam by a lens system, is picked up by a photodiode and converted into an electrical signal. With the aid of pre-programmed reference data, the proportion of dust particles is determined and the measurement result is shown on the instrument’s digital display or printed out on an external tape printer. Via an interface, the measurement result in the form of an electrical signal can also be sent by cable to an automatic data-processing machine.’
4

Article 5 of Directive 2008/95, entitled ‘Rights conferred by a trade mark’, the wording of which reproduces that of Article 5 of Directive 89/104, provides: ‘1. The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: (a) any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered; (b) any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association between the sign and the trade mark. 2. Any Member State may also provide that the proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with, or similar to, the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark. 3. The following, inter alia, may be prohibited under paragraphs 1 and 2: (a) affixing the sign to the goods or to the packaging thereof; (b) offering the goods, or putting them on the market or stocking them for these purposes under that sign, or offering or supplying services thereunder; (c) importing or exporting the goods under that sign; (d) using the sign on business papers and in advertising. ...’
15

Article 73 of Regulation No 796/2004 is worded as follows: ‘1. If undue payment is made, the farmer shall repay the amount in question plus interest calculated in accordance with paragraph 3. … 3. Interest shall be calculated for the period elapsing between the notification of the repayment obligation to the farmer and either repayment or deduction. The rate of interest applicable shall be calculated in accordance with national law but shall not be lower than the interest rate applicable for the recovery of amounts under national provisions. 4. The repayment obligation referred to in paragraph 1 shall not apply if the payment was made by error of the competent authority or of another authority and if the error could not reasonably have been detected by the farmer. However, where the error relates to factual elements relevant for the calculation of the payment concerned, the first subparagraph shall only apply if the decision to recover was not communicated within 12 months of the payment. 5. The repayment obligation referred to in paragraph 1 shall not apply if the period which elapsed between the date of the payment of the aid and that of the first notification to the beneficiary by the competent authority concerning the undue nature of the payment concerned is more than 10 years. However, the period referred to in the first subparagraph shall be limited to four years if the beneficiary acted in good faith. …’
3

Article 47 of that regulation, entitled ‘Renewal’, provides: ‘1. Registration of the EU trade mark shall be renewed at the request of the proprietor of the trade mark or any person expressly authorised by him, provided that the fees have been paid. 2. The Office shall inform the proprietor of the EU trade mark, and any person having a registered right in respect of the EU trade mark, of the expiry of the registration in good time before the said expiry. Failure to give such information shall not involve the responsibility of the Office. 3. The request for renewal shall be submitted within a period of six months ending on the last day of the month in which protection ends. The fees shall also be paid within this period. Failing this, the request may be submitted and the fees paid within a further period of six months following the day referred to in the first sentence, provided that an additional fee is paid within this further period. 4. Where the request is submitted or the fees paid in respect of only some of the goods or services for which the EU trade mark is registered, registration shall be renewed for those goods or services only. 5. Renewal shall take effect from the day following the date on which the existing registration expires. The renewal shall be registered.’