ddrg/super_eurlex huggingface dataset:
18

Article 4 of Law No 193/2000 provides: ‘1. A contractual term which has not been directly negotiated with the consumer is regarded as unfair if, considered in isolation or together with other provisions of the contract, it causes, to the detriment of the consumer and contrary to the requirements of good faith, a significant imbalance in the parties’ rights and obligations. 2. A contractual term shall be regarded as not having been directly negotiated with the consumer if it has been drafted without the consumer having had the opportunity to influence the nature of that term, as in the case of standard contracts or general terms and conditions of sale used by traders operating on the market for the goods or service concerned. 3. The fact that certain aspects of the contractual terms or only one of those terms has been directly negotiated with the consumer, shall not exclude the application of the provisions of this law to the remainder of the contract if it appears from the overall assessment of the contract that it was unilaterally prepared by the seller or supplier. If a seller or supplier claims that a standard term drafted in advance has been negotiated directly with the consumer, it is for the seller or supplier to provide evidence to that effect. 4. The annex, which is an integral part of this Law, contains, by way of example, a list of terms regarded as unfair. 5. Without prejudice to the provisions of this Law, the unfairness of a contractual term shall be assessed according to: (a) the nature of the goods or services which form the subject matter of the contract at the time it is concluded; (b) all the factors which have led to the conclusion of the contract; (c) other contractual terms or other contracts on which it is based. 6. Assessment of the unfair nature of the terms relates neither to the definition of the main subject matter of the contract nor to the ability to satisfy the price and payment requirements, on the one hand, nor to the goods and services offered in exchange, on the other, in so far as those terms are in plain intelligible language.’
Appeals – Grounds – Mistaken assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted – Ground of appeal alleging distortion of the clear sense of the evidence – Need to indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to that distortion

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

(see paras 59, 60, 69, 80, 82, 88, 89)
Appeal – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the facts or evidence have been distorted

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

(see para. 39)
35

As regards, in the first place, the question of whether those clauses of the revised Framework Agreement preclude national legislation which makes the grant of a right to parental leave subject to the condition that the parent is employed without interruption for a period of at least 12 months immediately prior to the start of that parental leave, it must be observed that it is apparent from the wording of clause 3.1(b) of the revised Framework Agreement that the Member States may make the grant of parental leave subject to the condition of a prior period of work that may not exceed one year. Given the use of the words ‘period of work’ in the first part of that provision and the fact that that provision provides, in the second part, that the sum of successive fixed-term contracts with the same employer is to be taken into account for the purpose of calculating that period, the Member States may require that the period in question be continuous. In addition, since an application for parental leave seeks to secure, on the part of the applicant, a suspension of his or her employment relationship (see, to that effect, judgment of 19 September 2013, Hliddal and Bornand, C‑216/12 and C‑217/12, EU:C:2013:568, paragraph 53), the Member States may require that the prior period of work immediately precedes the start of the parental leave. Accordingly, clauses 1.1, 1.2, 2.1 and 3.1(b) of the revised Framework Agreement do not preclude national legislation which makes the grant of a right to parental leave subject to the condition that the parent concerned is employed without interruption for a period of at least 12 months immediately preceding the start of that parental leave.
Judgment of the Court (Seventh Chamber) of 13 January 2022 – YG v Commission

(Case C‑361/20 P) ( 1 )

(Appeal – Civil service – Official – Promotion – 2017 promotion procedure – Decision not to promote the appellant – Article 45(1) of the Staff Regulations of Officials of the European Union – Comparison of the merits – Principle of equal treatment – Duty to state reasons)

Officials – Promotion – Consideration of comparative merits – Procedures – Obligation to conduct a comparative consideration of all officials eligible for promotion – Scope

(Staff Regulations, Art. 45(1))

(see paras 23, 24)

Operative part

The Court:

1. Dismisses the appeal;

2. Orders YG to pay the costs.

( 1 ) OJ C 433, 14.12.2020.
7

Article 60 of the Ley General de la Seguridad Social (General Law on Social Security), in the consolidated version approved by Real Decreto Legislativo 8/2015 por el que se aprueba el texto refundido de la Ley General de la Seguridad Social (Royal Legislative Decree 8/2015 approving the revised text of the General Law on Social Security) of 30 October 2015 (BOE No 261 of 31 October 2015, p. 103291; ‘the LGSS’), entitled ‘Maternity supplement for contributory pensions under the social security system’ is worded as follows: ‘1. Women who have had biological or adopted children and are recipients of a contributory retirement, widow’s or permanent incapacity pension under any scheme within the social security system shall be granted a pension supplement on account of their demographic contribution to social security. That supplement, which shall have the legal nature of a contributory State pension for all purposes, shall consist of an amount equivalent to the result of applying to the initial amount of the pensions referred to a specified percentage which shall be based on the number of children in accordance with the following scale: (a) two children: 5%. (b) three children: 10%. (c) four or more children: 15%. For the purpose of establishing entitlement to the supplement and the amount thereof, only children born or adopted before the operative event for the pension concerned shall be taken into account. 2. Where the amount of the pension initially granted exceeds the limit laid down in Article 57 without application of the supplement, the total of the pension and the supplement may not exceed that limit increased by 50% of the supplement allocated. Similarly, if the amount of the pension granted reaches the limit laid down in Article 57 as a result of applying the supplement only in part, the person concerned shall also be entitled to receive 50% of the portion of the supplement which exceeds the maximum limit in force at that time. Where, by legislative or regulatory means, the limit may be exceeded for other reasons, the supplement shall be calculated in accordance with this paragraph, taking as the initial amount of the pension the amount of the limit in force at that time. If the pension to be supplemented is the result of aggregating periods of insurance on a pro rata basis, in accordance with international legislation, the supplement shall be calculated on the basis of the resulting theoretical pension and the appropriate proportion shall be applied to the result obtained. … 4. The pension supplement shall not be applicable where the person concerned voluntarily takes early retirement or takes partial retirement, referred to in Articles 208 and 215 respectively. However, the appropriate pension supplement shall be paid where partial retirement is followed by full retirement, once the required age has been reached. …’
6

The ustawa o kredycie konsumenckim (Law relating to consumer credit) of 12 May 2011 (Dz. U. 2011, No 126, item 715) transposed Directive 2008/48 into Polish law. Article 9 of that law in the version applicable to the case in the main proceedings (‘the Law on consumer credit’), provides: ‘1. Before concluding a consumer credit agreement, the lender shall assess the consumer’s creditworthiness. 2. The assessment of creditworthiness shall be carried out on the basis of information obtained from the consumer or on the basis of information obtained from the relevant databases or the lender’s data sets. 3. The consumer shall, at the lender’s request, provide the lender with the documents and information necessary to carry out the assessment of his or her creditworthiness. 4. If the lender is a bank or another institution statutorily authorised to grant loans, the creditworthiness assessment shall be carried out in accordance with Article 70 of the Law on Banking of 29 August 1997 and other legislation applicable to those entities, taking paragraphs 1 to 3 into account.’
23

However, in accordance with the Court’s settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. Consequently, even if, formally, the referring court has limited its question to the interpretation of a particular provision of EU law, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 50 and the case-law cited).
10

Under Article 30 of that directive, entitled ‘Regulatory body’: ‘1. Without prejudice to Article 21(6), Member States shall establish a regulatory body. This body, which can be the Ministry responsible for transport matters or any other body, shall be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract. The body shall function according to the principles outlined in this Article whereby appeal and regulatory functions may be attributed to separate bodies. 2. An applicant shall have a right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking concerning: … (d) the charging scheme; (e) level or structure of infrastructure fees which it is, or may be, required to pay; … 3. The regulatory body shall ensure that charges set by the infrastructure manager comply with chapter II and are non-discriminatory. Negotiation between applicants and an infrastructure manager concerning the level of infrastructure charges shall only be permitted if these are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to contravene the requirements of this Directive. … 5. The regulatory body shall be required to decide on any complaints and take action to remedy the situation within a maximum period of two months from receipt of all information. Notwithstanding paragraph 6, a decision of the regulatory body shall be binding on all parties covered by that decision. In the event of an appeal against a refusal to grant infrastructure capacity, or against the terms of an offer of capacity, the regulatory body shall either confirm that no modification of the infrastructure manager’s decision is required, or it shall require modification of that decision in accordance with directions specified by the regulatory body. 6. Member States shall take the measures necessary to ensure that decisions taken by the regulatory body are subject to judicial review.’
58

In the present case, as regards the birth allowance, it is apparent from the information provided by the referring court, set out in paragraphs 11 to 16 and in paragraphs 26 and 27 above, that, first, it is granted in respect of any child born or adopted whose parents reside in Italy and are Italian nationals or are citizens of a Member State of the European Union or, further, have long-term resident status. Initially granted to households whose resources did not exceed a certain statutory ceiling, that allowance was then extended to all households without any income requirement, its amount varying according to household resources and being increased by 20% in respect of each child subsequent to the first. Thus, it appears that that benefit is granted automatically to households satisfying certain legally defined, objective criteria, without any individual and discretionary assessment of the applicant’s personal needs. In particular, it is apparent from the order for reference that, initially, the childbirth allowance was granted or refused taking into account the resources of the household of which the applicant parent was a member on the basis of an objective and legally defined criterion, namely the equivalent economic situation indicator, without the competent authority’s being able to take account of other personal circumstances. Subsequently, the childbirth allowance was granted irrespective of the level of household income, although the actual amount of that allowance is calculated, in essence, on the basis of that indicator.
3

Article 9 of the Agreement between the Government of the Kingdom of Belgium and the Government of the Grand Duchy of Luxembourg, of the one part, and the Government of the People’s Republic of Poland, of the other, concerning the reciprocal promotion and protection of investments, signed on 19 May 1987 (‘the bilateral investment treaty’, or ‘the BIT’), provides as follows: ‘1. (a) Disputes between one of the Contracting Parties and an investor of the other Contracting Party shall be subject to a written notification accompanied by a detailed memorandum sent by that investor to the relevant Contracting Party. (b) Within the meaning of this Article, the term “disputes” refers to disputes with regard to the expropriation or nationalisation of, or any other measures similarly affecting, the investments, including the transfer of an investment to public ownership, placing it under public supervision, as well as any other deprivation or restriction of rights in rem by sovereign measures that might lead to consequences similar to those of expropriation. (c) Such disputes shall, as far as possible, be settled amicably between the relevant parties. 2. If the dispute could not be so settled within six months from the date of the written notification specified in paragraph 1, it shall be submitted, at the choice of the investor, to arbitration before one of the bodies indicated below: (a) the Arbitration Institute of the Stockholm Chamber of Commerce [(“the SCC”)]; … 5. The arbitration body should make its award on the basis of: – the national law of the Contracting Party that is a party to the dispute, in the territory of which the investment is located, including the rules relating to the conflict of laws; – the provisions of this Treaty; – the terms of any special agreement concerning the investment; – the generally accepted rules and principles of international law. 6. The arbitration awards shall be final and binding on the parties to the dispute. Each Contracting Party undertakes to execute the awards in accordance with its national law.’
30

In those circumstances, the Sąd Rejonowy dla Warszawy-Woli w Warszawie II Wydział Cywilny (District Court for Warszawa-Wola, Second Civil Division, Warsaw, Poland) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) In the light of Article 3(1), Article 4(1) and Article 5 of [Directive 93/13] and its recitals, pursuant to which contracts must be drafted in plain and intelligible language and doubts must be interpreted in the consumer’s favour, must a contractual term setting out the buying and selling rates of a foreign currency in a loan agreement indexed to a foreign currency be worded unequivocally, that is to say, in a manner that enables the borrower/consumer to determine that rate himself or herself on any given day, or, in the light of the type of contract as referred to in Article 4(1) of Directive 93/13, the long-term nature (spanning several decades) of the contract and the fact that the amount in foreign currency is subject to constant changes (may change at any time), is it possible to formulate a more general wording of the contractual term, that is to say, one that refers to the market value of the foreign currency, in a manner which prevents a significant imbalance in the parties’ rights and obligations to the detriment of the consumer within the meaning of Article 3(1) of that directive? (2) If the answer to the first [question] is in the affirmative, in the light of Article 5 of [Directive 93/13] and its recitals, it is possible to interpret a contractual term concerning the determination by the creditor (bank) of the buying and selling rates of a foreign currency in such a manner as to resolve doubts in the consumer’s favour and to assume that the contract determines the buying and selling rates of a foreign currency not in an arbitrary manner, but on free-market terms, especially if both parties had the same understanding of the contractual terms determining the buying and selling rates of the foreign currency or if the borrower/consumer was not interested in the disputed contractual term at the time of conclusion of the contract and during its performance, and was also not familiar with the content of the contract at the time of its conclusion and throughout its duration?’
5

Article 5 of the regulation, entitled ‘Cancellation’, provides in its paragraphs 1 and 4: ‘1. In case of cancellation of a flight, the passengers concerned shall: (a) be offered assistance by the operating air carrier in accordance with Article 8; and (b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in [the] event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and (c) have the right to compensation by the operating air carrier in accordance with Article 7, unless: (i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or (ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or (iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival. … 4. The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier.’
14

In those circumstances, the Giudice di pace di Massa (Magistrates’ Court, Massa, Italy) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the concept of the prohibition of “discrimination on grounds of nationality” under Article 18 TFEU to be interpreted as meaning that Member States are prohibited from enacting any legislation that could, indirectly, covertly and/or materially, cause difficulties for nationals of other Member States? (2) If the first question is answered in the affirmative, could Article 93(1-bis) of [the Highway Code], concerning the prohibition on driving with foreign number plates (registered in anybody’s name) after 60 days of residence in Italy, cause difficulties for nationals of other Member States (who own cars with foreign number plates) and consequently be discriminatory on grounds of nationality? (3) Are the following concepts: a. “right to move and reside freely within the territory of the Member States”, as referred to in Article 21 TFEU; b. “internal market” which “shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties”, as referred to in Article 26 TFEU; c. “freedom of movement for workers … secured within the Union”, as referred to in Article 45 TFEU; d. “[prohibited] restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State …”, as referred to in Articles 49 to 55 TFEU; [and] e. “restrictions on freedom to provide services within the Union … prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”, as referred to in Articles 56 to 62 TFEU to be interpreted as meaning that national provisions that could, indirectly, covertly and/or materially, limit or hinder the ability of European citizens to exercise the right of freedom of movement and residence within the territory of the Member States, the right of freedom of movement for workers within the Union, the freedom of establishment and the freedom to provide services, or in any way affect those rights, are also prohibited? (4) If the third question is answered in the affirmative, could Article 93(1-bis) of [the Highway Code], concerning the prohibition of driving with foreign number plates (registered in anybody’s name) after 60 days of residence in Italy, limit, hinder or in any way affect the exercise of the right of freedom of movement and residence in the territory of the Member States, the right of freedom of movement for workers within the Union, the freedom of establishment and the freedom to provide services?’