ddrg/super_eurlex huggingface dataset:
1.

Must Article 46(3) of Directive 2013/32/EU (1) of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (‘the Procedures Directive’) be interpreted to the effect that a national court deciding on the merits of an applicant’s need for international protection may, on the grounds that a negative decision has been repeatedly set aside and the case referred back to an administrative body on the basis of a repeatedly successful appeal, which has thus been shown to be ineffective, decide itself to grant such protection to the applicant, even if it does not have such competence under national law?
EN Official Journal of the European Union C 168/21

Appeal brought on 24 February 2017 by Gul Ahmed Textile Mills Ltd against the judgment of the General Court (Fifth Chamber) delivered on 15 December 2016 in Case T-199/04 RENV: Gul Ahmed Textile Mills Ltd v Council of the European Union

(Case C-100/17 P)

(2017/C 168/28)

Language of the case: English

Parties

Appellant: Gul Ahmed Textile Mills Ltd (represented by: L. Ruessmann, avocat, J. Beck, Solicitor)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

The Appellant claims that the Court should:

— declare the Appeal admissible and well-founded;

— set aside the General Court’s judgment;

— rule on the substance and annul the Regulation 397/2004 (1) or refer the case back to the General Court for a decision on the substance of the Application for Annulment; and

— order the Council to pay the Appellant’s costs for the Appeal and the General Court proceedings.

Pleas in law and main arguments

In support of the appeal, the Appellant puts forward the following arguments:

— The General Court committed an error in law by holding that the Appellant no longer has an interest in the second and third pleas in law. When deciding whether the Appellant has a continued interest in the case, the Court must take into account all evidence and information before it and look at the overall context. The errors in the Council’s dumping margin calculations are methodological and liable of recurring in the future.

— The General Court committed an error of law in finding without properly addressing (in some cases, not addressing at all) the Appellant’s arguments that the EU industry’s shifting of production to the high-value segment of the EU bed linen market and the increasing EU imports of bed linen from Turkish producers related to the EU industry did not break the causal link between the alleged dumping and the alleged material injury of the EU industry. Furthermore, the findings of the General Court are based on distortions of the facts as presented in Regulation 397/2004 and incorrect legal characterisations of the facts.

(1) Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan (OJ 2004, L 66, p. 1).
2.

Are Article 3(1)(a) of Council Directive 2008/120/EC of 18 December 2008 laying down minimum standards for the protection of pigs (1), and Article 12 thereof, to be interpreted as precluding national legislation such as Article 8(1) of Royal Decree 4/2014 of 10 January approving the quality standard for Iberian meat, ham, shoulder ham and loin, which makes the use of the term ‘ibérico’ on products prepared or marketed in Spain subject to the breeders of Iberian pigs in intensive farming systems (de cebo) increasing the total minimum unobstructed floor area per animal of more than 110 kg to 2 m2 — even if the aim of the national legislation is to improve the quality of the products, and not specifically to provide better protection for pigs. If the answer to the previous question is in the negative, is Article 12 of Directive [2008/120/EC], in conjunction with Articles 34 and 35 of the Treaty on the Functioning of the European Union, to be interpreted as precluding a provision such as Article 8(1) of Royal Decree 4/2014 requiring the producers of other Member States, with the aim of improving the quality of the products processed and marketed in Spain — and not of providing better protection for pigs –, to fulfil the same conditions for rearing the animals as the Spanish producers in order that the products obtained from their pigs may use the sales descriptions which are regulated by that Royal Decree?
1.

May Article 4(1) of Council Directive 93/[1]3/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, together with the principle in dubio pro consumer reflected in the second sentence of Article 5(1) of the directive, and the case-law of the European Union, be interpreted as meaning that the terms of a bank loan agreement: — which grants the borrower a sum of money expressed in a certain curruncy (foreign currency) and requires the borrower to repay the loan in the same currency (foreign currency) but it is apparent from the circumstances attending the conclusion and execution of the agreement that the funds were in fact provided to the borrower in an entirely different currency and that the accounting currency is used only virtually and for the purposes of calculation; — under which the entire risk of appreciation of the external and/or internal value of the accounting currency used virtually (the foreign currency) is borne by the borrower (consumer), even though the consumer drew down a different payment currency, being the currency actually used; — which does not explain clearly how the exchange mechanism for the accounting currency used virtually actually works, that is, in such a way that the consumer is able to assess, on the basis of clear and intelligible criteria, the financial consequences of signing the agreement; — which imposes a pecuniary obligation on the consumer to pay, in respect of loan instalments, sums arising from the difference between the instalments calculated in the accounting currency made available virtually to the borrower and the instalments calculated in the payment currency actually used: may be unfair?
1.

In circumstances where expenditure of a branch established in one Member State is exclusively used for the transactions of its principal establishment established in another Member State, must the provisions of Article 17(2), (3) and (5) and Article 19(1) of the Sixth Directive 77/388/EEC, (1) incorporated in Articles 168, 169 and 173 to 175 of Directive 2006/112/EC, (2) be interpreted to the effect that the Member State in which the branch is registered is to apply to that expenditure the branch’s deductible proportion, determined according to the transactions carried out in the Member State in which it is registered and according to the rules applicable in that State, or to apply the proportion applicable to the principal establishment, or to deduct a specific proportion combining the rules applicable in the Member States in which the branch and the principal establishment are registered, with regard in particular to a possible option mechanism for imposing value added tax on transactions?
1.

Are Articles 114(3), 151 and 153 TFEU, and the provisions of Framework Directive 89/391/EEC (1) and the subsequent specific directives to be interpreted as precluding a Member State of the European Union from laying down time limits and procedures which limit access to judicial remedies for the purposes of classifying work places as characterised by particular or special conditions, with the result that workers’ rights to safety and health at work deriving from the assessment of those conditions, in accordance with the national provisions described in the request for a preliminary ruling, are not recognised?
Second plea in law, alleging that the General Court impermissibly substituted its own reasoning for that of the Council and manifestly distorted the evidence

The appellant avers, in the first instance, that the General Court impermissibly sought to substitute its own reasoning for that of the Council and the Commission and, in so doing, provided an impermissible reason of its own for supporting the notion that the merchandise offered by the objector could be considered identical, equivalent or substitutable materials for BPA.

In the second instance, it avers that the General Court assessed the evidence relevant to the objector’s ability to supply sufficiently available volumes of the allegedly comparable merchandise to BPA in a manner that was manifestly incorrect, thereby distorting the clear sense of the evidence and its application to the evaluation of the case at first instance.
2.

Must Article 9(1) of Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the European Union be interpreted as precluding national legislation, such as that at issue in the main proceedings, which lays down as aggravating circumstances in the case of failure to comply with the obligation to declare, lack of proof of the lawful origin of the means of payment and inconsistency between the activity carried on by the person concerned [and the amount of the movement]?
1)

Is case-law incompatible with Articles 6 and 7 of Directive 93/13/EEC (1) on unfair terms in consumer contracts when it (STS (Sentencia del Tribunal Supremo: judgment of the Supreme Court) of 18 February 2016) holds that, despite the unfairness of the early repayment term and even though the application for enforcement is based on that term, mortgage enforcement proceedings are not to be closed because their continuation is more favourable to the consumer, given that, in the event of any enforcement of a judgment given in declaratory proceedings brought under Article 1124 CC (Código Civil: Civil Code), a consumer would not enjoy the procedural privileges applicable in mortgage enforcement proceedings, and when that case-law does not take into account the settled case-law of the TS (Tribunal Supremo: Supreme Court) to the effect that Article 1124 CC (laid down for contracts creating reciprocal obligations) is not applicable to loan agreements, because such an agreement is a real, unilateral contract which does not become valid until the money is handed over and which, therefore, creates obligations for the borrower alone and not for the lender (creditor), so that, if that case-law of the TS were to be applied in declaratory proceedings, a consumer could obtain a ruling dismissing the claim for termination and compensation and it could no longer be argued that continuation of the mortgage enforcement proceedings was more favourable to him?
(4)

Are Articles 5, 10 and 31 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read in conjunction with Articles 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, with Articles 7, 24, 41 and 47 of the Charter of Fundamental Rights of the European Union, and with Article 21 of the Treaty on the Functioning of the European Union, compatible with national case-law and provisions, such as Articles 39/2(2), 40, 40a, 42 and 43 of the Law of 15 December 1980 on entry into the territory, residence, establishment and removal of foreign nationals, and Article 52(4) of the Royal Decree of 8 October 1981 on entry into the territory, residence, establishment and removal of foreign nationals, under which a judgment delivered by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) annulling a decision refusing residence on the basis of those provisions interrupts, and does not suspend, the mandatory period of six months prescribed by Article 10 of Directive 2004/38/EC, by Article 42 of the Law of 15 December 1980 and by Article 52 of the Royal Decree of 8 October 1981?
3.

Is Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts to be interpreted and applied to the effect that, if the answer to the second question referred to the Court is in the affirmative, national courts may not amend (are prohibited from amending) the clauses held to be unfair, namely, by holding that the ‘fourth-degree’ forfeiture clause may operate under other conditions than those expressly provided for in the preliminary contract (for example, not in the event of any late or missed payment whatsoever regardless of the amount, but only for late or missed payments of a specified amount that the court, case by case, considers to be substantial), and to reduce (limit) the amount of the penalty clause to the amount paid as a deposit by the promisee-purchaser until such time as the forfeiture clause is triggered? In such cases, may the national courts limit themselves merely to ruling that those clauses do not apply to the consumer in question?
EN Official Journal of the European Union C 239/28

Appeal brought on 8 May 2017 by Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Csi Cells Co. Ltd, Csi Solar Power (China), Inc. against the judgment of the General Court (Fifth Chamber) delivered on 28 February 2017 in Case T-163/14: Canadian Solar Emea and Others v Council

(Case C-237/17 P)

(2017/C 239/35)

Language of the case: English

Parties

Appellants: Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Csi Cells Co. Ltd, Csi Solar Power (China), Inc. (represented by: J. Bourgeois, avocat, S. De Knop, advocaat, M. Meulenbelt, advocaat, A. Willems, avocat)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

The appellants claim that the Court should:

— quash the judgment of the General Court in case T-163/14;

— uphold the application at first instance and annul the contested regulation in so far as it concerns appellants;

— order the respondent to pay the appellants’ costs, and its own costs, both at first instance and on appeal;

— order any other parties to the appeal to pay their own costs;

In the alternative

— quash the judgment of the General Court in case T-163/14;

— refer the case back to the General Court for judgment;

— reserve the costs at first instance and on appeal for final judgment by the General Court;

— order any other parties to the appeal to pay their own costs.

Pleas in law and main arguments

The General Court erred in law by requiring appellants to show an interest in raising the first and second pleas; in any event, the General Court erred in its legal characterization of the facts as the appellants have such an interest.
1.

Is Article 21 of Directive 2011/83/EU (1) of the European Parliament and of the Council of 25 October 2011 to be interpreted as meaning that a trader can make available a telephone number for which a higher rate than the normal rate applies if the trader, in addition to the telephone number at a higher rate, also offers consumers, in a comprehensible and easily accessible way, a landline number at the normal rate for the purposes of contacting him in relation to a contract concluded?
3.

If the preceding question is answered in the affirmative, under what conditions can a Member State, without infringing the right to property, freedom of expression, the freedom to conduct a business and the principle of proportionality, avail itself of the option open to it under Article 24(2) of the directive in order to require manufacturers and importers to have plain, standardised unit packets and outside packaging?
—

and, on the basis of that decision, he transferred the purchase price for the security acquired on the secondary market from his account held with an Austrian bank to a clearing account held with another Austrian bank, from where the purchase price was subsequently transferred to the seller by order of the applicant,
1.

Must Article 30 TFEU be interpreted as precluding a national rule such as Article 12(9) of the Nariadenie vlády Slovenskej republiky č. 317/2007 Z. z., ktorým sa ustanovujú pravidlá pre fungovanie trhu s elektrinou (Regulation No 317/2007 of the Government of the Slovak Republic laying down rules for the functioning of the market in electricity — ‘the regulation’) which introduces a specific pecuniary charge for the export of electricity from the territory of the Slovak Republic, regardless of whether that electricity is exported from Slovak territory to the Member States of the European Union or to third countries, in circumstances in which the electricity exporter fails to demonstrate that the electricity exported has been imported into the Slovak Republic, that is to say, a pecuniary charge levied solely on electricity generated in the Republic of Slovakia and exported from it?
2.

Is use of one of the three terms mentioned in Article 7 of Regulation (EU) No 1007/2011, namely ‘100 %’, ‘pure’ or ‘all’, mandatory or is this merely an option, and not an obligation, for such products?
EN Official Journal of the European Union C 277/28

Action brought on 26 June 2017 — European Commission v Portuguese Republic

(Case C-383/17)

(2017/C 277/41)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Costa de Oliveira and L. Nicolae, Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court should:

— declare that by failing to provide the Commission with any report of the results of the monitoring of every recognised organisation acting on its behalf, the Portuguese Republic fails to fulfil its obligations under Article 9(2) of Directive 2009/15/EC (1) of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 9(2) of the Directive clearly lays down that each Member State must, at least on a biennial basis, monitor every recognised organisation acting on its behalf and provide the other Member States and the Commission with a report on the results of such monitoring activities at the latest by 31 March of the year following the year in which the monitoring was carried out.

Since the time limit for transposing the Directive into national law expired on 17 June 2011 in accordance with Article 13(1) of that directive, the Portuguese Republic ought to have provided the first report by 31 March 2013 at the latest, as it could have opted to carry out the first monitoring during 2011 or 2012.

It is now June 2017 and the Portuguese Republic has still not provided a report.

(1) OJ 2009 L 131, p. 47.
—

declare that, in maintaining the effects of the provisions aimed at eliminating double economic taxation of the dividends that allow a parent company to set off against the advance payment, for which it is liable when it redistributes to its shareholders dividends paid by its subsidiaries, the tax credit applied to the distribution of those dividends if they come from a subsidiary established in France, but not to offer that option if those dividends originate from a subsidiary established in another Member State, since, in that case, that legislation does not give entitlement to a tax credit applied to the distribution of those dividends by that subsidiary in so far as, according to the case-law of the Conseil d’État, applications are granted for reimbursement of advance payments made in breach of EU law within the meaning of the judgment of the Court in Case C-310/09 Accor (1), subject to the following three restrictions: — the right to reimbursement of the advance payment illegally made is restricted by the refusal to take into account taxation suffered by sub-subsidiaries established outside France; — the right to reimbursement of the advance payment illegally made is restricted by disproportionate evidentiary requirements; — the right to reimbursement of the advance payment illegally made is restricted by limiting the tax credit to the amount of the dividend redistributed in France which comes from a subsidiary established outside France, and whereas the Conseil d’État, administrative court adjudicating at last instance, established those restrictions without asking the Court of Justice for the purposes of determining the compatibility of those restrictions with EU law, the French Republic has failed to fulfil its obligations under the principles of equivalence and effectiveness and in accordance with Articles 49, 63 and the third paragraph of Article 267 of the Treaty on the Functioning of the European Union
1.

Where a person is convicted and sentenced by a court of competent jurisdiction in a member state and the original sentence imposed on him is altered on appeal and that sentence (as altered on appeal) is subsequently both suspended and reactivated following the quashing of the suspension in question, should the term ‘the trial’ as used in Article 4a of the Framework Decision (1) be interpreted as: a) referring only to the process leading to the finding of guilt and the imposition of the original sentence (‘the original sentence’); or b) referring to (a) above and/or any or all of the following: i) the process of any appeal following (a) and where by the original sentence is altered on appeal (‘the altered sentence’); ii) the process leading to the subsequent suspension of the altered sentence (or part thereof); iii) the process leading to the revocation of suspension of the altered sentence (or part thereof).
3.

May the appropriate assessment as referred to in Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206), which is made for a programme such as the Programma Aanpak Stikstof 2015-2021, take into account the positive effects of conservation measures and appropriate steps for existing areas of habitat types and habitats, which are taken in connection with the obligations arising from Article 6(1) and (2) of that Directive? 3(a) If question 3 is answered in the affirmative: can the positive effects of conservation measures and appropriate steps be taken into account in an appropriate assessment if, at the time of the appropriate assessment, those measures have not yet been implemented and their positive effect has not yet been achieved? Assuming that the appropriate assessment contains definitive findings on the effects of these measures based on the best available scientific knowledge in that regard, is it important that the implementation and the results of those measures be monitored and, if it transpires that the effects are less favourable than had been assumed in the appropriate assessment, that adjustments, if required, be made?