ddrg/super_eurlex huggingface dataset:
Order of the Court (Ninth Chamber) of 6 October 2021 – Monument Vandekerckhove

(Case C‑316/21) ( 1 )

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Directive 2014/24/EU – Conduct of the procedure – Choice of participants and award of contracts – Article 63 – Tenderer relying on the capacities of another entity in order to meet the requirements of the contracting authority – Failure to meet the requirements relating to the technical and professional ability of the tenderer by the entity on whose capacities the tenderer intends to rely – Obligation to allow that tenderer to replace that entity – Principle of proportionality)

Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2014/24 – Award of contracts – Grounds for exclusion from participation in a tender procedure – Tenderer relying on the capacities of another entity – Selection criteria not fulfilled by that entity – Obligation on the contracting authority to request that the tenderer replace that entity – Compliance with the principles of equal treatment and proportionality

(European Parliament and Council Directive 2014/24, Arts 18(1) and 63(1))

(see paras 36, 39, 40, 42-45, operative part)

Operative part

The second subparagraph of Article 63(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, read in conjunction with the principles of equal treatment, non-discrimination and proportionality as set out in Article 18(1) of that directive, must be interpreted as meaning that, where it ascertains that an entity on whose capacity an economic operator intends to rely does not fulfil the selection criteria, the contracting authority is obliged to request that the economic operator replace that entity, if it does not wish to be excluded from the public procurement procedure concerned.

( 1 ) OJ C 320, 9.8.2021.
Order of the Vice-President of the Court of 11 February 2022 –

Svenska Metallkompaniet v EUIPO

(Case C‑610/21 P)

(Appeal – EU trade mark – Article 170a(1) of the Rules of Procedure of the Court of Justice – No request that the appeal be allowed to proceed – Appeal inadmissible)

Appeals – Scheme for prior determination as to whether appeals should be allowed to proceed – No request that the appeal be allowed to proceed – Inadmissibility

(Statute of the Court of Justice, Art. 58a; Rules of Procedure of the Court of Justice, Art. 170a(1))

(see paras 5, 6)

Operative part:

1. The appeal is dismissed as inadmissible.
Appeals – Scheme for prior determination as to whether appeals should be allowed to proceed – Issue that is significant with respect to the unity, consistency or development of EU law – Burden of proof

(Statute of the Court of Justice, Art. 58a; Rules of Procedure of the Court of Justice, Art. 170b)

(see para. 11)
Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the General Court – Error of law relied on not identified – Inadmissibility

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))

(see paras 4 [7, 8, 11], 5)
Order of the Court (Tenth Chamber) of 31 May 2022 – M.M.

(Case C‑783/21)

(Reference for a preliminary ruling – Article 53(2) of the Rules of Procedure of the Court of Justice – Article 267 TFEU – No dispute before the referring court – Manifest inadmissibility of the request for a preliminary ruling)

Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – General or hypothetical questions – Interpreting services provided in criminal proceedings which have been closed by the referring court – Questions raised in interlocutory proceedings initiated on the basis of an application for determination of the fees of the interpreter who provided those services – No dispute pending before the referring court – Manifest inadmissibility

(Art. 267 TFEU)

(see paras 17-24)

Operative part

The request for a preliminary ruling from the Tribunale di Firenze (District Court, Florence, Italy), made by decision of 11 November 2021, is manifestly inadmissible.
Appeal – Pleas in law – Plea raised for the first time in the context of the appeal – Inadmissibility

(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. 170(1))

(see paras 7 [4], 8)
6.

A further group of objections relates to the basis of the contested decision, namely Competition No A/45. In principle their admissibility cannot be doubted for the case-law has already shown that in the case of an action for annulment of an appointment the preparatory measures may be contested as well. It does not matter that the objections were already the subject of Case 77/74. We are now concerned with another appointment and moreover it was not necessary in the said case to deal with all the objections made by the applicant. Perhaps reservations are called for in so far as the applicant in the present case has simply contented himself with referring to his observations in the other case. I have in mind the attitude adopted by the Court in Joined Cases 19 and 65/63, Satya Prakash v Commission of the EAEC [1965] ECR 533. If this however is overlooked, as in Case 4/69, Alfons Lütticke GmbH v Commission of the European Communities [1971] ECR 336, the following may be observed briefly on the substance of the applicant's objections: In so far as the applicant refers to his remarks in Case 77/74, I need not deal with them again in detail here. I have said all that is necessary with regard to them in my opinion in Case 77/74. I will simply refer to this now and to the conclusion that there is no cause to declare the competition unlawful. At most an additional observation is required on the objection raised for the first time in the present proceedings that the Selection Board did not take account of the fact that the applicant acted as Head of Division for a certain time. The applicant relies on the fact that this temporary posting has in the meantime been officially recognized by a decision of the President of the European Parliament of 28 May 1975. Further he refers to the evidence of the witness Opitz in an earlier case according to which had the temporary posting been considered it would have led to a higher assessment under one of the particular criteria to which the Selection Board had to have regard. To begin with it seems to me questionable whether this factor was in fact also significant in the context of Competition No A/45, which was not concerned with filling a post in the secretariat of a committee where the applicant had temporarily acted as Head of Division. If this is assumed however it must be recognized on the other hand that even if the applicant had received a few more points from the Selection Board, he would not have been included on the list of suitable candidates with a total of 61 points. It may therefore be assumed that a corresponding correction of the results of the selection procedure would not have led to another decision on filling the post in question, especially as Mr W., the official in fact appointed, received 67·5 points in the competition. The applicant accordingly has no actionable interest in this respect either and it is thus clear as a whole that his criticism of the competition cannot lead to an annulment of the contested decision.
3.

It seems to me clear that this condition relates only to cases in which the competent institution must take into account, for the purposes of aggregation, simply periods of employment as such, which are not recognized as periods of insurance and which were completed under the legislation of another Member Sute. In fact Article 67 (1) covers two cases: that where the competent institution takes account of periods of insurance completed under the legislation of another Member Sute and that where the institution takes account of periods of employment also completed under the legislation of another Member Sute. The final condition was drawn up with express reference to periods of employment alone; there is no condition which concerns periods of insurance. The distinction between these two kinds of period stands out clearly in the present case since, as has been noted above, in Belgium time spent in domestic service Constitutes a period of employment but not of insurance and in Italy this was also the case prior to the promulgation and entry into force of Presidential Decree No 1403 of 31 December 1971. Thereafter, pursuant to that decree, domestic servants are included in the right to unemployment insurance and thus a period of domestic service completed in Italy has become a ‘period of insurance’. In this connexion it is relevant to recall what is stated in Article 1 (r) of Regulation No 1408/71: namely that the words ‘insurance periods’ mean contribution periods of periods of employment as defined or recognized as insurance periods by the legislation under which they were completed or considered as completed. It is clear from that provision that when, under the law of the State in which the employment was exercised, a period of employment is also counted as a period of insurance, the characteristic of ‘period of insurance’ takes precedence. Consequently, Article 67 (1) must be applied to the present case, having regard to the reference to ‘periods of insurance’ and, on the other hand, disregarding the reference to ‘periods of employment’ which, for the reasons which I have endeavoured to explain, must be understood only as periods of employment as such not entailing insurance. Consequently, the final condition contained in Article 67 (1) (which, I must reiterate, affects only periods of employment as such) has no incidence on the present case.
OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 1 FEBRUARY 1979

My Lords,

In this case there is little that I can usefully say. The Italian Republic admits that it has failed to bring into force the national legislation necessary to comply with the Directive. It explains that the delay is due to internal difficulties, but recognizes that such difficulties cannot be invoked to justify a failure by a Member State to fulfil an obligation under the Treaty.

In my opinion, in those circumstances, Your Lordships can but make the declaration sought by the Commission, and order the Italian Republic to pay the costs of the action.
OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 21 JUNE 1979 ( 1 )

In connexion with the reference for a preliminary ruling by the Finanzgericht Münster on which only the Commission of the European Communities has put forward written and oral observations, it is sufficient, I feel, to state that I find the Commission's arguments — for which I would refer to the excellent' report for the hearing — entirely convincing. The Agent for the. Commission has made some supplementary points and I think that in the circumstances it is possible to dispense with a further summary of the arguments.

I therefore simply propose that the questions referred to the Court should be answered as recommended by the Commission, that is to say to reply in the negative to the first question, so that no answer will be needed to the other two.

( 1 ) Translated from the German.
OPINION OF MRS ADVOCATE GENERAL ROZÈS

DELIVERED ON 12 MAY 1982 ( 1 )

Mr President,

Members of the Court,

By an interim judgment of 17 December 1980 the Court gave the Commission and the Kingdom of Belgium until 1 July 1981 to reexamine the issue between them in the light of the legal considerations contained in that judgment and to report to the Court on the result of that examination.

Although that period was extended until 31 October 1981 the parties have not been able to agree on a single report to be submitted to the Court.

The subsequent written and oral argument has not taken the matter further. The Belgian Government adheres to its point of view, which was examined in detail in the opinion of Mr Advocate General Mayras of 24 September 1980 and in the Court's judgment of 17 December. As for the Commission, it has now fallen into line with that opinion, deleting from its application most of the posts which the Advocate General had himself ruled out (architects, municipal and communal supervisors) and even some posts of night watchman. On the other hand its views on the posts of hospital nurse and children's nurse remain unchanged.

The considerations set forth in the Court's judgment mean that the posts of French-speaking hospital nurse and children's nurse with the crèches of the municipalities of Auderghem and Brussels must be classified amongst the posts which Mr Advocate General Mayras considered in his opinion of 24 September 1980 did not come within the concept of public sen-ice within the meaning of Article 48 (4) of the Treaty.

If the Court upholds that view the Kingdom of Belgium and the interveners must bear the costs.

( 1 ) TrxnmtrC from irr tten
OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 22 MAY 1980

My Lords,

I am so entirely in agreement with what the Commission has said that no purpose would be served in my asking the Court for time to reflect.

I propose that the Court reply to the question referred to it by simply saying that Article 28 (4) of Regulation No 3 is incompatible with Article 51 of the Treaty and is consequently invalid.
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 8 OCTOBER 1981

My Lords,

This is an application by the Commission for a declaration that the Republic of Italy has failed to fulfil its obligations under the Treaty in that it has not adopted the measures which are necessary to implement Council Directive No 74/561 of 12 November 1974 (OJ L 308, of 19. 11. 1974, p. 18) within the period fixed for doing so by Article 7.

The Republic of Italy has not denied, either in the written procedure, or in its oral submissions, that it has failed to comply with the directive. It has explained why the directive has not been implemented. It seems that the various consultations and legislative processes which were necessary have taken a long time and this has resulted in the measures not being implemented.

It is well established, in my view, by the cases decided by the Court that a Member State is not entitled to rely on circumstances or practices existing in its own internal legal system to justify failing to comply with the obligations imposed on it by a directive.

Counsel for the Republic of Italy has asked that the Court should extend the time which is provided by the article for the implementation of the directive. It does not seem to me that the Court has power to alter the period which is fixed by a directive. It may well be that the Court could, in its own discretion, delay the making of a declaration because of the circumstances which were explained to the Court. It seems to me, however, that it is essentially a matter for the Commission to decide whether the time has come to bring a failure to fulfil an obligation under the Treaty before the Court, and it does not seem to me that it is appropriate that, in a case where the Commission has shown that there has been a failure to fulfil such an obligation, the Court should, in the ordinary case, refuse to grant the declaration sought.

In consequence, in my opinion, the declaration sought by the Commission should be granted in this case and the Republic of Italy should be ordered to pay the costs of the action.
OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 17 JUNE 1982 ( 1 )

Mr President,

Members of the Court,

In Case 275/81, Koks v Raad van Arbeid [Labour Council], s'-Hertogenbosch, I agree with the Commission's observations so wholeheartedly that I unreservedly adopt them as my own. Therefore, I propose that the Court should answer the question submitted to it in the manner suggested by the Commission. I would merely add that, in my opinion, the answer given by the Raad van Arbeid to the question put to it by the Court does not appear to give rise to any complications in consequence of the levying of contributions, a matter to which the Court should give its attention in its ruling on the question raised. The rule on contributions appears in the present case to operate in precisely the same manner as tne rule on allowances. The payment of contributions to which no corresponding benefits are attached must also be regarded as undesirable in the light of the case-law of the Court. On the other hand, it is a common occurrence, as is well known, for benefits to be granted in relation to which no equivalent contributions have been paid.

As the Commission emphasizes in its written observations, in contrast to the situation in Case 276/81 Kuypers the question whether the Netherlands rules on the conflict of laws contained in the Royal Decree of 19 October 1976 (Staatsblad 557) are in conformity with Community law need not be raised expressly in this case. As it rightly points out in those observations, the reason for the exclusion of Mrs Koks lies not in the fact that she was subject to the legislation of another Member Sute, but in the fact that her husband was not insured in accordance with the Netherlands legislation applicable in this case (in so far as that is not in conflict with the provisions of Regulation No 3).

( 1 ) Translated from the Dutch.
1.

The Court is called upon, in the context of a dispute regarding payment of family allowances under the French scheme, to interpret Article 48 of the EEC Treaty and Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community. It should be stated first of all that, under Articles L 511 and L 524 of the Code de la Sécurité Sociale, such benefits are to be paid to all persons who reside in France and have at least two dependent children also residing in France. The rules adopted for the implementation of those provisions lay down the conditions under which a son who is studying abroad may be regarded as resident for the purposes of the allowances. Richard Meade, a United States national, has, since 1973, resided with his wife and two sons, all of British nationality, in Paris, where he works as a legal adviser. In 1977, the elder son went to school in the United Kingdom, to Radley College, Abingdon. In 1980, the competent institution (the Caisse d'Allocations Familiales de la Région Parisienne [Family Allowances Fund for the Paris Region, hereinafter referred to as “the Fund”] learned that the conditions for payment of benefits laid down in French law (the son's residence in France) had not been complied with and, moreover, that the conditions under which the son might be considered resident did not exist. It therefore suspended payment of benefits and demanded repayment from Mr and Mrs Meade of some FF 6436.80 wrongly paid in the period from March 1978 to January 1980. The amount was not repaid and the Fund instituted proceedings against the Meades before the Commission de Première Instance du Contentieux et de la Sécurité Sociale et de la Mutualité Sociale Agricole [Social Security and Agricultural Social Insurance Mutual Benefit Appeals Board, hereinafter referred to as “the Board”], Pans, seeking a declaration that the benefits must be repaid. The Meades contended that the refusal to pay benefits while their son was pursuing his studies or training abroad constituted an obstacle to freedom of movement for persons and was as such contrary to Article 48 of the EEC Treaty. By an interlocutory decision of 3 June 1983, the Board stayed proceedings and under Article 177 of the EEC Treaty referred the following question to the Court of Justice for a preliminary ruling: “Is the Caisse d'Allocations Familiales entitled, on the basis of Article 48 of the EEC Treaty, to demand repayment of the family allowances paid to the parents of a young man of British nationality on the ground that he is pursuing his studies in England and to suspend payment of the said allowances on the same ground?”
1.

As the Court is aware, Article 4 (1) (b) of Annex VII to the Staff Regulations provides that officials who are nationals of the State in whose territory the place where they are employed is situated are entitled to an expatriation allowance equal to 16% of the basic salary if they can prove that they have habitually resided outside the territory of that State for at least 10 years before entering the service of the European Communities. On 16 April 1984 Claude Richter, a Luxembourg national, was appointed by the Commission as a translator and assigned to Directorate-General IX, which is based in the Grand Duchy of Luxembourg. He immediately requested that the rule under Article 4 (1) (b) should be applied to him, but the Administration rejected his request; this gave rise to a dispute which, now that the administrative procedures have been exhausted, is brought before this Court. In order to resolve it the Court must, in essence, establish whether, during the 10-year period from 15 April 1974 until 15 April 1984, Mr Richter was habitually resident outside Luxembourg. In support of his application, Mr Richter gives the following details regarding the period at issue: He was born in 1953 in Luxembourg and lived there with his parents until 15 October 1973. From that date onwards he was in Strasbourg, to pursue his university studies. Having left Strasbourg on 1 October 1977, he moved to Germersheim in Germany, and obtained his diploma as translator at the nearby University of Mainz (March 1981). From September 1981 onwards he was once again in Luxembourg where, until February 1982, he was a trainee with the Terminology Division of the Commission. At the end of that brief interlude he returned to Germersheim but left it permanently on 16 April 1984, when he entered the service of the Commission. In support of that account he has produced a certificate from the municipal authorities of Germersheim, which states that Mr Richter declares that he resided in that town from 4 October 1977 to 1 May 1984‘without interruption’. Thus, if that period is added to the time spent in Strasbourg, the period during which he resided outside his country of origin amounts to almost 11 years. The refusal to grant him an expatriation allowance is therefore illegal.