ddrg/super_eurlex huggingface dataset:
36.

That literal and contextual interpretation of Article 72 of Directive 2009/65 is also supported by adopting a purposive approach to its interpretation. According to the first paragraph of Article 69(1), the purpose of the prospectus is to enable investors to make an informed judgement of the investment proposed to them and the risks attached thereto. Article 69(2) of Directive 2009/65, read in conjunction with point 1.8 of Schedule A of Annex 1 thereto, provides that the prospectus must include the names and positions in the company of the members of the administrative, management and supervisory bodies, as well as details of their main activities outside the company where these are of significance with respect to that company. ( 8 ) It is uncontested that non-executive directors are ‘members of the administrative, management and supervisory bodies’ of a company. At the hearing, the FSC, ESMA and the Commission observed that non-executive directors, while not responsible for day-to-day management decisions, are involved in board-level decisions relating to investments. Investing consists in making choices. The quality of those choices depends in large part upon the calibre and the probity of the individuals charged with that responsibility. It follows that the identity of decision-makers may be of importance to potential investors. Moreover, timely identification of the individuals who decide upon the investment of funds allows investors to verify, amongst other matters, potential conflicts of interest. If that information in the prospectus is not kept up to date, the ability of investors to make an informed judgement of investments proposed to them is impaired.
Order of the Court (Second Chamber) of 29 September 2015 —

ANKO v Commission

(Case C‑2/15 SA) ( 1 )

‛Application for leave to serve a garnishee order on the European Union’

Privileges and Immunities of the European Union — Application for leave to serve a garnishee order on an institution of the European Union — Need for the Court’s authorisation — Scope of the Court’s jurisdiction — Assessment of the reality of the Commission’s debt — Debt which is the subject matter of a case before the Court — Rejection of the application for leave to serve an order (Protocol on the Privileges and Immunities of the European Communities, Art. 1) (see paras 12-16)

Operative part:

1. The application is rejected.

2. ANKO AE Antiprosopeion, Emporiou kai Viomichanias and the European Commission are ordered to pay their own costs.

( 1 ) OJ C 118 13.4.2015.
Opinion 3/94

Opinion pursuant to Article 228(6) of the EC Treaty

‛GATT — WTO — Framework Agreement on Bananas’

Opinion of the Court, 13 December 1995

Summary of the Opinion

International agreements — Opinion of the Court — Purpose — Agreement envisaged — Agreement concluded after the request submitted to the Court — Request which has become devoid of purpose

(EC Treaty, Art. 228(6))

A request made to the Court for an Opinion under Article 228(6) of the EC Treaty becomes devoid of purpose, and the Court does not need to respond, where the Agreement to which it relates, which was envisaged at the time when the request was submitted to the Court, has since been concluded.

The purpose of that provision, which is to forestall complications which might result both in a Community context and in that of international relations from a decision of the Court to the effect that such an agreement was, by reason either of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaty, can no longer be achieved if the Court rules on an agreement which has already been concluded. The fact that the Court does not respond to a request for an Opinion does not undermine the judicial protection of the institution or Member State which requested the Opinion at a time when the agreement had not yet been concluded since, first, Article 228(6) is not principally aimed at protecting the interests and rights of the institution or State seeking an Opinion and, secondly, those rights may always be safeguarded by an action for annulment of the decision to conclude the agreement in conjunction, if need be, with a application for interim relief.
Case C‑543/18 RX

HG

v

European Commission

(Review)

Summary — Decision of the Court (Reviewing Chamber), 17 September 2018

Review — Subject of the review — Appointment of a judge — Possibility to form the subject of a review of indirect legality — Conditions

(Art. 256(2) TFEU; Statute of the Court of Justice, Art. 62; Rules of Procedure of the Court of Justice, Art. 193(4))

The review shall concern the question whether, having regard, in particular, to the general principle of legal certainty, the judgment of the General Court of the European Union of 19 July 2018, HG v Commission (T‑693/16 P, not published, EU:T:2018:492), affects the unity or consistency of EU law in that the General Court, as the court hearing the appeal, held that the composition of the panel of judges of the European Union Civil Service Tribunal which had delivered the judgment of 19 July 2016, HG v Commission (F‑149/15, EU:F:2016:155), had been irregular, on the basis of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to infringement of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.

The review shall involve, in particular, the question whether, like the acts covered by Article 277 TFEU, the appointment of a judge may form the subject matter of a review of indirect legality or whether such a review of indirect legality is — by principle or after the passage of a certain period of time — excluded or limited to certain types of irregularity in order to ensure legal certainty and the force of res judicata.

(see operative part. 2)
3.

In addition, in order for the foregoing workers to be recognised as having the right to parental leave, it is necessary under the Greek legislation for the following conditions, which are additional to those set out in the directive, to apply: — 12 months' previous service on the same vessel; — employment of at least 30 persons on that vessel; — proof that the other parent is working; — classification of the return from parental leave as a new seaman's contract and a required new period of work of a minimum of 6 or 7 months; — assumption of the costs of the sending of a replacement by the navy; — application of the national legislation in question only to seamen's contracts which commence after the entry into force of the collective agreements; — classification of commercial obligations as grounds of force majeure justifying not granting parental leave.
EN Official Journal of the European Union C 37/7

Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 21 November 2007 — Luigi Scarpelli v NEOS Banca SpA

(Case C-509/07)

(2008/C 37/08)

Language of the case: Italian

Referring court

Tribunale di Bergamo

Parties to the main proceedings

Applicant: Luigi Scarpelli

Defendant: NEOS Banca SpA

Question referred

‘Is Article 11(2) of Council Directive 102/87/EEC (1) to be interpreted as meaning that an agreement between a supplier and a grantor of credit whereunder credit is made available exclusively by that grantor of credit to customers of that supplier is a necessary condition for the consumer's right to pursue remedies against the grantor of credit — where the supplier is in breach of contract — even where that right is (a) only to termination of the credit agreement; or (b) to termination of the agreement and consequently to reimbursement of the sums paid to the grantor of credit?’

(1) OJ L 42, p. 48.
1.

Do the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC (1) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes, in conjunction with Articles 2, 10(1)(a) and 10(2) of Sixth Council Directive 77/388/EEC (2) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, rule out the possibility of imposing an obligation on a taxable person for the purpose of tax on goods and services to pay an additional tax liability within the terms of Article 109(5) and (6) of the Ustawa o Podatku od Towarów i Usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U. No 54, pos 535 with amendments) in the event that it is established that the taxable person for the purpose of tax on goods and services indicated in the tax declaration submitted an amount of the tax difference to be repaid or the input tax to be repaid which is greater than the amount due?
2.

In the event that Regulation No 1984/83 is applicable, where it prohibits exclusive vertical agreements relating to service stations for an indefinite duration or for a period of more than 10 years, subject to the derogation laid down in Article 12(2) which provides that ‘where the agreement relates to a service station which the supplier lets to the reseller, or allows the reseller to occupy on some other basis, in law or in facts, exclusive purchasing obligations or prohibitions of competition indicated in this title may … be imposed on the reseller for the whole period for which the reseller in fact operates the premises’, does that derogation cover a case such as the one in issue where, pursuant to the private contract of 27 July 1990 and the public deed dated 10 October 1995, Lubricarga, the owner of a plot of land, granted Galp surface rights for a period of 25 years and the latter undertook to build the service station, on the condition that, once the construction had been completed, the facilities would be assigned to Lubricarga which would operate them for the same period of time, subject to the obligation to purchase all motor-vehicle and other fuel exclusively from the oil company?
EN Official Journal of the European Union C 37/20

Action brought on 13 December 2007 — Commission of the European Communities v French Republic

(Case C-556/07)

(2008/C 37/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Nolin, M. van Heezik, Agents)

Defendant: French Republic

Form of order sought

— declare that, by failing sufficiently to monitor, inspect and supervise fishing activities, in particular in the light of the prohibition of drift nets for the capture of certain species, and by not ensuring that appropriate measures against those responsible for infringements of the Community legislation on the use of drift nets were taken, the French Republic failed in its obligations under Articles 2 and 31(1) and (2) of Regulation No 2847/1993 (1) and Articles 23(1) and (2), 24 and 25(1) and (2) of Regulation No 2371/2002 (2);

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission alleges that the defendant applied the Community legislation on fisheries incorrectly. That incorrect application consists, first, in the fact that the French authorities did not consider a ‘thonaille’ (a tuna gillnet) to be a drag net although, by reason of its technical characteristics, the thonaille is one and, as such, is prohibited by Community legislation. The fact that the thonaille can be stabilised with the aid of a floating anchor is, in that regard, irrelevant inasmuch as that stabilisation does not imply that the thonaille cannot drift with sea currents or the wind, but only that it is held by floats and weights in order to optimise its efficiency and to prevent it lying horizontally just below the surface.

The failure to fulfil obligations consists, second, in the lack of an effective monitoring system in order to enforce the ban on drift nets for the capture of certain species and the lack of follow-up in the pursuit of breaches established. The monitoring solely concerns whether national legislation, which is more flexible than the Community legislation, is complied with and the penalties imposed for breach of the legislation are light and of little dissuasive effect.

(1) Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1).

(2) Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59).
1.

Are there extraordinary circumstances within the meaning of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (1), having regard to the 14th recital in the preamble to the regulation, if a technical defect in the aeroplane, in particular damage to the engine, results in the cancellation of the flight, and must the grounds of excuse under Article 5(3) of the regulation be interpreted in accordance with the provisions of Article 19 of the Montreal Convention?
EN Official Journal of the European Union C 51/37

Action brought on 20 December 2007 — Commission of the European Communities v Republic of Malta

(Case C-563/07)

(2008/C 51/61)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and D. Lawunmi, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

— declare that, by failing to provide the information necessary to comply with Decision No. 280/2004/EC (‘the Decision’) of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community Greenhouse gas emissions and for implementing the Kyoto Protocol (1) in Malta in conjunction with Articles 2 to 7 of Commission Decision 166/2005/EC of 10 February 2005 laying down rules implementing Decision 280/2004/EC, the Republic of Malta has failed to fulfil its obligations under Article 3(1) of the Decision.

Pleas in law and main arguments

According to Article 3(1) of decision No 280/2004/EC the Member States shall, for the assessment of actual progress and to enable the preparation of annual reports by the Community, in accordance with obligations under the UNFCCC and the Kyoto protocol, provide the Commission with certain information regarding greenhouse gas emissions by 15 January each year.

In view of the fact that the Republic of Malta has not provided the Commission with the information due on 15 January 2006 the Commission is obliged to assume that the Maltese authorities have failed to meet their obligations under Article 3(1) of the decision.

(1) OJ L 49, p. 1.
3.

The Court of First Instance's interpretation that the conceptual content of the sign ‘MICRO FOCUS’ is ‘small focus’ is not in accordance with the general principles governing the issue of likelihood of confusion. The concept can only be interpreted in that way if the grammatical rules of the German language are incorrectly applied. On the basis of that interpretation of the sign ‘MICRO FOCUS’ the Court arrived at the incorrect finding that only the figurative element ‘Focus’ of the word/figurative sign ‘MICRO FOCUS’ should be compared with the sign ‘FOCUS’ in respect of which registration is sought. Building on that interpretation, the Court then erred in law in finding that there was a likelihood of confusion. If the Court had considered the whole of the word/figurative sign ‘MICRO FOCUS’, it would have correctly interpreted Article 8(1)(b) of Regulation No 40/94.
2.

If not: if an invoice as referred to in Article 21(1)(c) of the Sixth Directive has been issued to a recipient of services who is not entitled to deduct VAT (and consequently there is no risk of any loss of tax revenues), are the Member States entitled to make the correction of the erroneously invoiced VAT which, according to that provision, is consequently liable to be paid, subject to the requirement that the taxable person subsequently issues a corrected invoice to his customer in which there is no mention of any VAT amount?
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/48/EC (1) of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, or in any event by not communicating such measures to the Commission, the Republic of Portugal has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 64/31

Appeal brought on 22 January 2008 by Sunplus Technology Co. Ltd against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-38/04: Sunplus Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-21/08 P)

(2008/C 64/44)

Language of the case: English

Parties

Appellant: Sunplus Technology Co. Ltd (represented by: H. Eichmann, G. Barth, U. Blumenröder, C. Niklas-Falter, M. Kinkeldey, K. Brandt, A. Franke, U. Stephani, B. Allekotte, K. Lochner, B. Ertle, C. Neuhierl, S. Prückner, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Sun Microsystems, Inc.

Form of order sought

The appellant claims that the Court should:

— annul the judgment under appeal;

— annul the contested decision;

— order OHIM to bear costs of the proceeding.

Pleas in law and main arguments

The appellant submits that the Court of First Instance erred in its application and interpretation of Article 8(1)(b) of Regulation No 40/94 (1) by comparing single parts of the two trademarks and not assessing their overall impression on the consumer.

According to the appellant the Court of First Instance distorted facts and evidence when it stated that the device part of the trademark applied for contains a stylized sun rather than a ‘star’ symbol and when it omitted to take the letter ‘S’ into account when comparing the overall impression of the trademarks.

The appellant also maintains that the reasoning of the Court of First Instance is contradictory in that, at paragraph 39 of the judgment, it states that the additional components create differences between the trademarks but fails to consider those components when comparing the trademarks phonetically.

Finally the appellant submits that the Court of First Instance erred in not taking into account the category of goods and services in question and the circumstances in which they are marketed when assessing the likelihood of confusion.

(1) Council Regulation (EC) of 20 December 1993 on the Community trade mark (JO L 11, p. 1).
1.

Does the scope of Regulation (EC) No 1348/2000 (1) extend to the service of extrajudicial documents exclusively by and on private persons using the physical and personal resources of the courts and tribunals of the European Union and the regulatory framework of European law even when no court proceedings have been commenced? Or,
—

Declare that, by failing to develop and implement waste reception and handling plans for all its ports, the Federal Republic of Germany has failed to fulfil its obligations under Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (1);
(1)

For there to be use of the sign within the meaning of Article 9(1)(a) and (2)(d) of Council Regulation 40/94 (1) of 20 December 1993 on the Community trade mark, is it necessary that a third party, within the meaning of Article 9(1)(a) of the Regulation: (a) uses the sign on his own behalf? (b) uses the sign as an interested party in relation to trade in goods in which he is himself a contractual party?
3.

When applying the concept of concerted practices in Article 81 EC, is there always a presumption of a causal connection between concerted practice and market conduct even if the concerted practice is an isolated event and the undertaking which took part in the practice remains active on the market or only in those cases in which the concerted practice has taken place with a certain degree of regularity over a lengthy period?
1.

Are the first paragraph of Article 12 and Article 18(1) of the Treaty Establishing the European Community, in conjunction with Article 149(1), the second indent of Article 149(2) and the third indent of Article 150(2) thereof, to be interpreted as meaning that those provisions preclude an autonomous community in a Member State with responsibility for higher education, which is faced, as a result of a restrictive policy practised by a neighbouring Member State, with an influx of students from the neighbouring Member State in a number of programmes of study of a medical nature financed principally out of public funds, from adopting measures such as those contained in the Decree of the French Community of 16 June 2006 regulating the number of students in certain programmes in the first two years of undergraduate studies in higher education, when that community relies on valid reasons for claiming that that situation could place an excessive burden on public finances and jeopardise the quality of the education provided?
EN Official Journal of the European Union C 107/20

Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-94/08)

(2008/C 107/32)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and L. Lozano Palacios, agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that, by maintaining in its legislation the requirement of Spanish nationality for persons occupying the posts of captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction, the Kingdom of Spain has failed to fulfil its obligations under Community law, and in particular Article 39 EC.

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In accordance with the Spanish legislation, the posts of captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction, must be occupied by Spanish citizens.

The Commission considers that the requirement, as a general rule, that those posts be occupied by persons of Spanish nationality infringes Article 39 EC and cannot be justified by the derogation of Article 39(4). The Commission's interpretation is supported in particular by Case C-405/01 (1), in which the Court ruled that the scope of that derogation must be limited to what is strictly necessary for safeguarding the general interests of the Member State concerned, and in respect of the posts concerned, those interests cannot be imperilled if the relevant rights under powers conferred by public law are exercised only sporadically, even exceptionally, by nationals of other Member States. The Kingdom of Spain has not amended the legislation in the way recommended by the Commission, although it undertook to make the necessary amendments in its response to the reasoned opinion.

(1) Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391.