ddrg/super_eurlex huggingface dataset:
17

In those circumstances, the Tribunale Amministrativo Regionale per le Marche decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Must Article 30(4) of [Regulation No 1260/1999] be interpreted as meaning that it is not possible to undertake an assessment of whether the grant of the concession generates substantial revenue for the contracting authority or undue advantage for the concessionaire without first establishing whether the works under concession have undergone substantial modification? 2. If the answer to Question 1 is in the affirmative, what is meant by “substantial modification”, that is to say, does [Article 30(4) of Regulation No 1260/1999] refer only to physical modifications — in the sense that the structure set in place is not as specified in the project approved for funding — or does it also include modifications with regard to function, in which case has there been “substantial modification” if the structure is used “also” — but not predominantly — for activities other than those envisaged in the call for projects or in the application to participate in the call for projects? 3. If the answer to Question 1 is in the negative, does Article 30(4) of [Regulation No 1260/1999], with reference to those cases in which the public funding is used to carry out works the management of which is likely to be of economic interest, apply only to the construction stage of the project, or does the requirement to comply with the rules on competitive tendering procedures continue to apply when a management concession is granted? 4. Lastly, must Article 30(4) of [Regulation No 1260/1999] be interpreted as meaning that the process of establishing whether the concession of the management to a third party actually generates substantial net revenue or gives undue advantage to a firm or a public body constitutes a stage which, logically and legally, follows on after the preliminary question (that is to say, the question whether a competitive tendering procedure must be held), or must account also be taken, in determining the existence of the obligation to hold a competitive tendering procedure, of the actual rules governing the concession relationship?’
28

The Court has already held, in a situation in which a ‘product’ within the meaning of Article 1 of Regulation No 469/2009 is protected by a number of basic patents which may belong to different patent holders and may be patents for that product, patents for processes by which the product is obtained or patents relating to an application of the product, that, under Article 3(c) of that regulation, each of those patents may confer entitlement to an SPC but that only one certificate may be granted for each basic patent (see Case C-181/95 Biogen [1997] ECR I-357, paragraph 28, and Case C-482/07 AHP Manufacturing [2009] ECR I-7295, paragraphs 22 and 23). In such a situation, the type of patent held, as the case may be, by each of those proprietors will affect the protection that may be obtained if an SPC is granted, since, for a patent protecting a product as such, the protection conferred by the SPC will cover that product, whereas for a patent protecting a process by which a product is obtained, that protection will extend only to the process by which that product is obtained or, if the law applicable to such a patent so provides, possibly to the product directly obtained by that process (see the order in Queensland University and CSL, paragraph 39), and, for a patent relating to a new therapeutic application of an active ingredient, known or otherwise, the protection conferred by the SPC will not cover the active ingredient as such but only the new use of that product (Case C-130/11 Neurim Pharmaceuticals (1991) [2012] ECR, paragraph 25).
4

Articles 12, 15, 16, 18 to 20 and 42 of the Second Directive provide, inter alia: ‘Article 12 Subject to the provisions relating to the reduction of subscribed capital, the shareholders may not be released from the obligation to pay up their contributions. ... Article 15 (a) Except for cases of reductions of subscribed capital, no distribution to shareholders may be made when on the closing date of the last financial year the net assets as set out in the company’s annual accounts are, or following such a distribution would become, lower than the amount of the subscribed capital plus those reserves which may not be distributed under the law or the statutes. … (d) The expression “distribution” used in subparagraphs (a) and (c) includes in particular the payment of dividends and of interest relating to shares. … Article 16 Any distribution made contrary to Article 15 must be returned by shareholders who have received it if the company proves that these shareholders knew of the irregularity of the distributions made to them, or could not in view of the circumstances have been unaware of it. ... Article 18 1. The shares of a company may not be subscribed for by the company itself. … Article 19 1. Where the laws of a Member State permit a company to acquire its own shares, either itself or through a person acting in his own name but on the company’s behalf, they shall make such acquisitions subject to at least the following conditions: (a) authorisation shall be given by the general meeting, which shall determine the terms and conditions of such acquisitions, and in particular the maximum number of shares to be acquired, the duration of the period for which the authorisation is given and which may not exceed 18 months, and, in the case of acquisition for value, the maximum and minimum consideration. …; … Article 20 1. Member States may decide not to apply Article 19 to: … (d) shares acquired by virtue of a legal obligation or resulting from a court ruling … ... Article 42 For the purposes of the implementation of this Directive, the laws of the Member States shall ensure equal treatment to all shareholders who are in the same position.’
4

Paragraph 20 of the Umwandlungssteuergesetz (the Law on taxation of business reorganisations) of 11 October 1995 (BGB1. 1995 I, p. 1250), in the version applicable at the material time (‘UmwStG 1995’), was worded as follows: ‘(1) Where an undertaking, part of an undertaking or a partnership interest is transferred by way of contribution to a capital company subject to unlimited liability to corporation tax [point 1 of Paragraph 1(1) of the Körperschaftsteuergesetz (Law on Corporation tax)] and the transferor receives in consideration new shares in the company (non-cash consideration), the assets transferred and the new shares shall be valued in accordance with the following paragraphs … (2) The capital company may value the business assets contributed at their book value or a higher value … (3) The capital company must value the business assets contributed at their value as part of a going concern where, at the time of the non-cash consideration, the Federal Republic of Germany does not have the right to tax the gain arising as a result of the grant of company shares to the transferor. (4) The value which the capital company assigns to the business assets contributed shall be deemed for the transferor to be the transfer price and the acquisition cost of the shares. … (6) In the cases referred to in Paragraph 20(3), the second to sixth sentences of Paragraph 21(2) shall apply by analogy to deferment of payment of any income tax or corporation tax due.’
6

Article 7 of that directive, entitled ‘Right of residence for more than three months’, is worded as follows: ‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or (c) — are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and — have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). ... 4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.’
23

In those circumstances, the Tribunale amministrativo regionale per il Lazio decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 15 of Directive [2006/54] applicable to attendance of a vocational training course in the context of an employment relationship and must it be interpreted as meaning that, at the end of the [maternity] leave period, the female worker concerned has the right to be re-admitted to the same course still under way, or can it be interpreted as meaning that the female worker concerned may be enrolled on a subsequent course, even though the timing, at least, of that subsequent course is uncertain? (2) Must Article 2(2)(c) of Directive [2006/54], which provides that any less favourable treatment related to maternity leave constitutes discrimination, be interpreted as affording female workers protection, which is absolute and cannot be affected by divergent interests, against any substantial inequality (Case C-136/95 Thibault [1998] ECR I-2011), so as to preclude national legislation which, by requiring exclusion from a vocational training course and at the same time guaranteeing the option of enrolling on the following course, pursues the objective of providing adequate training but deprives the female worker of the opportunity to take up, at an earlier date, a new post together with male colleagues from the competition and course, and thus to receive the corresponding pay? (3) Must Article 14(2) of Directive [2006/54], under which a difference of treatment based on characteristics constituting a genuine occupational requirement does not amount to discrimination, be interpreted as permitting the Member State to delay access to employment … of a female worker who has been unable to receive full vocational training as a result of maternity leave? (4) In [such a] scenario …, and accepting, in abstract terms, that Article 14(2) [of Directive 2006/54] is applicable to the case set out [in the preceding question], must that provision … be interpreted, in accordance with the general principle of proportionality, as precluding national legislation which requires that a female worker absent on maternity leave be excluded from the course rather than ensuring that parallel remedial courses be set up in order to allow the training shortfall to be remedied, thereby combining the rights of the working mother and the public interest, but with the organisational and financial costs attached to that option? (5) If it is interpreted as precluding the national legislation referred to above, does Directive [2006/54] set out, in that regard, self-executing rules which are directly applicable by the national court?’
55

In the light of all the foregoing, the answer to the question raised is that Article 23 of Directive 2008/48 must be interpreted as precluding the application of a national system of penalties under which, in the event of failure on the part of the creditor to comply with its obligation, prior to conclusion of an agreement, to assess the borrower’s creditworthiness by consulting the relevant database, that creditor forfeits its entitlement to contractual interest but is automatically entitled to interest at the statutory rate, payable from the date of delivery of a court decision ordering that borrower to pay the outstanding sums, which is further increased by five percentage points if, on expiry of a period of two months following that decision, the borrower has not repaid his debt in full, where the referring court finds that — in a case such as that in the main proceedings, in which the outstanding amount of the principal of the loan is immediately payable as a result of the borrower’s default — the amounts which the creditor is in fact likely to receive following the application of the penalty of forfeiture of entitlement to contractual interest are not significantly lower than those which it could have received had it complied with its obligation to assess the borrower’s creditworthiness.
40

In the light of those considerations, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions, which are worded identically in Case C‑24/12 and Case C‑27/12, to the Court of Justice for preliminary rulings: ‘1. For the purposes of Article 56 EC ..., can an own OCT [of a Member State] be regarded as a third country, in which case it would be possible to rely on Article 56 EC in respect of the movement of capital between a Member State and its own OCT? 2. (a) If Question 1 is answered in the affirmative, is it necessary in order to determine whether, for the purposes of Article 57(1) EC ..., there has been an increase, for account to be taken in the present case — in which the withholding tax on share dividends paid by a subsidiary company established in the Netherlands to its holding company established in the Netherlands Antilles was increased from the 1993 rate of 7.5% or 5% to 8.3% as from 1 January 2002 — exclusively of the increase in the Netherlands withholding tax, or must account also be taken of the fact that, as from 1 January 2002, the Netherlands Antillean authorities have — in conjunction with the increase in the Netherlands withholding tax — granted an exemption in respect of share dividends received from a subsidiary company established in the Netherlands, whereas previously those dividends formed part of profits taxed at a rate of 2.4%, 3% or 5%? (b) If account must also be taken of the tax reduction in the Netherlands Antilles effected by the introduction of the share exemption referred to in Question 2(a) above, should Netherlands Antillean implementation arrangements (in the present case: Netherlands Antillean rulings practice), the result of which may have been that prior to 1 January 2002 — including in 1993 — the actual tax liability in respect of dividends received from the/a subsidiary company established in the Netherlands was substantially lower than 8.3%, also be taken into consideration?’
Article 13(5) of Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the Member States must be interpreted as meaning, where a Member State has opted to grant the material reception conditions in the form of financial allowances or vouchers, that those allowances must be provided from the time the application for asylum is made, in accordance with the provisions of Article 13(1) of that directive, and must meet the minimum standards set out in Article 13(2) thereof.

That Member State must ensure that the total amount of the financial allowances granted is sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence, enabling them in particular to find housing, having regard, if necessary, to the preservation of the interests of persons having specific needs, pursuant to Article 17 of that directive. The material reception conditions laid down in Article 14(1), (3), (5) and (8) of Directive 2003/9 do not apply to the Member States where they have opted to grant those conditions in the form of financial allowances only. Nevertheless, the amount of those allowances must be sufficient to enable minor children to be housed with their parents, so that the family unity of the asylum seekers may be maintained.

(see para. 46, operative part 1)
The reference to the overall impression produced on the informed user by ‘any design’ which has been made available to the public indicates that Article 6 must be interpreted as meaning that the assessment as to whether a design has individual character must be conducted in relation to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously.

Article 6 of Regulation No 6/2002 on Community designs is to be interpreted as meaning that, in order for a design to be considered to have individual character, the overall impression which that design produces on the informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually.

Article 85(2) of Regulation No 6/2002 on Community designs must be interpreted as meaning that, in order for a Community design court to treat an unregistered Community design as valid, the right holder of that design is not required to prove that it has individual character within the meaning of Article 6 of that regulation, but need only indicate what constitutes the individual character of that design, that is to say, indicates what, in his view, are the element or elements of the design concerned which give it its individual character.

As indicated by the very heading of Article 85 of Regulation No 6/2002, paragraph 1 thereof establishes a presumption of validity of registered Community designs and, in paragraph 2, a presumption of validity of unregistered Community designs.

The implementation of that presumption of validity is, by its very nature, incompatible with the interpretation of Article 85(2) of Regulation No 6/2002, to the effect that the proof which the holder of a design must make out under that provision, namely that the conditions laid down in Article 11 of that regulation have been met, includes the proof that the design concerned also satisfies all of the conditions laid down in Section 1 of Title II of that regulation, that is to say, Articles 3 to 9 thereof.

(see paras 39, 40, 47, operative part 2)
The right conferred by national legislation to have judicial proceedings conducted in a language other than the principal language of the State concerned falls within the scope of EU law and applies to all judicial proceedings brought within the territorial entity concerned, including, civil proceedings.

Articles 18 TFEU and 21 TFEU must be interpreted as precluding national legislation which grants the right to use a language other than the official language of a Member State in civil proceedings brought before the courts of a Member State situated in a specific territorial entity in that State only to citizens of that State who are domiciled in the same territorial entity.

If it were otherwise, a citizen speaking the language of a Member State other than the Member State in which the courts hearing the dispute are situated, who travels and stays in that territorial entity would be treated less favourably in comparison with a national of the latter Member State who speaks the language of the other Member State spoken in that territorial entity, since that national resides there and is allowed to use the official language of that other Member States in civil proceedings before the courts situated in that entity.

Such legislation could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions. That is not the case where, first, the judges in the territorial entity concerned are perfectly capable of conducting judicial proceedings in both languages and, second, aims of a purely economic nature cannot constitute pressing reasons of public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty.

(see paras 21, 23-27, operative part)
Keywords

Summary



Keywords

1. International agreements — EEC-Turkey Association Agreement — Freedom of movement for persons — Freedom of establishment — Standstill rule in Article 41(1) of the Additional Protocol — Scope — Prohibition on Member States introducing new restrictions on the establishment, and correspondingly the residence, of Turkish nationals on national territory

(Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1))

2. International agreements — EEC-Turkey Association Agreement — Freedom of movement for persons — Freedom of establishment — Standstill rule in Article 41(1) of the Additional Protocol — Scope — National legislation, introduced after the entry into force of that provision, requiring evidence of basic linguistic knowledge with regard to family members of Turkish nationals wishing to enter the national territory for the purposes of family reunification — Unlawful

(Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1))

Summary

1. See the text of the decision.

(see paras 26-28)

2. Article 41(1) of the Additional Protocol to the EEC-Turkey Association Agreement must be interpreted as meaning that the ‘standstill’ clause set out in that provision precludes a measure of national law, introduced after the entry into force of that additional protocol in the Member State concerned, which imposes on spouses of Turkish nationals residing in that Member State, who wish to enter the territory of that State for the purposes of family reunification, the condition that they demonstrate beforehand that they have acquired basic knowledge of the official language of that Member State.

Such legislation, which makes family reunification more difficult by tightening the conditions of first admission to the territory of the Member State concerned by spouses of Turkish nationals in relation to those conditions applicable when the Additional Protocol entered into force, constitutes a new restriction, within the meaning of Article 41(1) of the Additional Protocol, on the exercise of the freedom of establishment by those Turkish nationals. Such a restriction is prohibited, unless it is justified by an overriding reason in the public interest, is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it. In that regard, on the assumption that the prevention of forced marriages and the promotion of integration, can constitute overriding reasons in the public interest, it remains the case that a national provision such as that at issue in the main proceedings goes beyond what is necessary in order to attain the objective pursued, in so far as the absence of evidence of sufficient linguistic knowledge automatically leads to the dismissal of the application for family reunification, without account being taken of the specific circumstances of each case.

(see paras 36-39, operative part)