ddrg/super_eurlex huggingface dataset:
Case C‑536/15

Tele2 (Netherlands) BV and Others

v

Autoriteit Consument en Markt (ACM)

(Request for a preliminary ruling

from the College van Beroep voor het bedrijfsleven)

(Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Article 25(2) — Directory enquiry services and directories — Directive 2002/58/EC — Article 12 — Directories of subscribers — Making available personal data concerning subscribers for the purposes of the provision of publicly available directory enquiry services and directories — Subscriber’s consent — Distinction on the basis of the Member State in which publicly available directory enquiry services and directories are provided — Principle of non-discrimination)

Summary — Judgment of the Court (Second Chamber), 15 March 2017

Approximation of laws—Electronic communications networks and services—Universal service and users’ rights—Directive 2002/22—Directory enquiry services and directories—Undertakings assigning telephone numbers to subscribers—Obligation to providers of directory enquiry services and directories—Concept of request—Request made by an undertaking established in another Member State for relevant information for the purposes of supplying those services in that Member State or in other Member States—Included (European Parliament and Council Directive 2002/22, Art. 25(2)) Approximation of laws—Electronic communications networks and services—Universal service and users’ rights—Directive 2002/22—Directory enquiry services and directories—Undertakings assigning telephone numbers to subscribers—Obligation to obtain the consent of subscribers to the use of data relating to them for the purposes of supplying those directory enquiry services—National legislation requiring that the request be made clearly expressing the subscribers’ consent to that use of data depending on the Member State of the provision of the services—Unlawful (European Parliament and Council Directive 2002/22, Art. 25(2))
1.

Declares that, by failing to create a national electronic register of road transport undertakings and by failing therefore to establish the interconnection with the electronic registers of other Member States, the Portuguese Republic has failed in its obligations under Article 16(1) and (5) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC.
Article 14 of Protocol (No 7) on the privileges and immunities of the European Union, annexed to the EU, FEU and EAEC Treaties, and the provisions of the Staff Regulations of Officials of the European Union on the joint social security scheme of the EU institutions must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that income from real estate received in a Member State by an official of the European Union who has his or her domicile for tax purposes in that Member State is subject to contributions and social levies that are allocated for the funding of the social security scheme of that same Member State.

National legislation, such as that at issue in the main proceedings, which subjects the income of an EU official to contributions and social levies specifically allocated for the funding of the social security schemes of the Member State concerned, therefore infringes the exclusive competence of the European Union under Article 14 of the Protocol and the relevant provisions of the Staff Regulations, in particular those which prescribe mandatory contributions to the funding of a social security scheme by EU officials.

In addition, such legislation might interfere with the equal treatment of EU officials and, therefore, discourage employment within an EU institution, since some officials would be required to contribute to a national social security scheme in addition to the joint social security scheme of the EU institutions.

(see paras 46, 47, 49, operative part)
Article 1(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that enforcement proceedings brought by a company owned by a local authority against a natural person domiciled in another Member State, for the purposes of recovering an unpaid debt for parking in a public car park, the operation of which has been delegated to that company by that authority, which are not in any way punitive but merely constitute consideration for a service provided, fall within the scope of that regulation.

In order to determine whether a matter falls within the scope of Regulation No 1215/2012, it is necessary to identify the legal relationship between the parties to the dispute and to examine the basis and the detailed rules governing the bringing of the action (see, to that effect, judgments of 11 April 2013, Sapir and Others, C‑645/11, EU:C:2013:228, paragraph 34, and of 12 September 2013, Sunico and Others, C‑49/12, EU:C:2013:545, paragraph 35).

In this case, as the Advocate General also observed in points 49 to 51 of his Opinion, the administration of public parking and the collection of parking fees constitute a task carried out in the local interest, effected by Pula Parking, an undertaking owned by the town of Pula. However, although the powers of Pula Parking have been entrusted to it by an act of public authority, neither the determination of the unpaid parking debt, of a contractual nature, nor the action for recovery of that debt, the purpose of which is to safeguard private interests and which is governed by general provisions of law applicable to relations between private individuals, appears to require the town of Pula or Pula Parking to exercise public authority powers.

Moreover, nor does it appear that, by issuing a parking ticket to the persons concerned, Pula Parking grants itself the power to issue an enforcement order, in derogation from the general rules of law, since after it has issued such a ticket, Pula Parking is merely able, in the same way as the issuer of an invoice, to rely on an authentic document capable of enabling it to initiate proceedings in accordance with the provisions of the Law on Enforcement (see, to that effect, judgment of 12 September 2013, Sunico and Others, C‑49/12, EU:C:2013:545, paragraph 39).

It follows that the legal relationship between Pula Parking and Mr Tederahn must, in principle, be classified as a private law relationship and falls, therefore, within the concept of ‘civil and commercial matters’ for the purposes of Regulation No 1215/2012.

(see paras 34, 35, 37-39, operative part 1)
While the fact that the Commission’s power to impose penalties for anticompetitive conduct is time-barred pursuant to Article 25(1)(b) of Regulation No 1/2003 means that a penalty can no longer be imposed on the companies in respect of which the limitation period has expired, that does not preclude another company, which is considered personally responsible and jointly and severally liable with those companies for the same anticompetitive behaviour, and in respect of which the limitation period has not expired, from having proceedings instituted against it.

That conclusion is not affected by the fact that a company’s liability in respect of an infringement period arises exclusively from the direct participation of its subsidiaries. First, the anticompetitive activities in relation to that period are nevertheless regarded as having been carried out by the parent company itself, since it forms an economic unit. Secondly, factors specific to the parent company may justify assessing the parent company’s liability and that of its subsidiary differently, even if the liability of the former is based exclusively on the unlawful conduct of the latter.

(see paras 70-74)
Regulation No 207/2009 on the European Union trade mark provides, subject to the exceptions to which it expressly refers, for the application of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to proceedings relating to EU trade marks and applications for such trade marks, as is expressly stated in recital 16 and Articles 94 and 97(1) of Regulation No 207/2009.

In that regard, although certain provisions of Regulation No 44/2001, such as Articles 5(5) and 18(2), also refer to the concept of ‘establishment’, so that it cannot be ruled out that the guidance from the Court’s case-law on those two provisions may to some extent be relevant for interpreting the concept of ‘establishment’ within the meaning of Regulation No 207/2009, it cannot, however, be considered that that concept must necessarily bear the same meaning, whether it is used in one or the other of the two regulations.

Thus, notwithstanding the principle that Regulation No 44/2001 applies to proceedings relating to an EU trade mark, the application of certain provisions of that regulation, in particular the rules in Articles 4 and 5(1), to proceedings in respect of the actions and claims referred to in Article 96 of Regulation No 207/2009 is excluded by Article 94(2) of that regulation. In the light of that exclusion, the jurisdiction of the EU trade mark courts laid down in Article 95(1) of Regulation No 207/2009 to hear the actions and claims referred to in Article 96 of that regulation results from rules directly provided for by that regulation, which have the character of lex specialis in relation to the rules provided for by Regulation No 44/2001.

In addition, Regulation No 44/2001, on the one hand, and Regulation No 207/2009, on the other, do not pursue the same objectives. Thus, according to recitals 12 and 13 of Regulation No 44/2001, that regulation aims to lay down, in addition to the defendant’s domicile, alternative grounds of jurisdiction based on a close link between the court and the action, or in order to facilitate the sound administration of justice, or, in relation to insurance, consumer and employment contracts, to protect the weaker party by rules of jurisdiction more favourable to his interests than the general rules.

Regulation No 207/2009 for its part aims, according to recitals 15 to 17, to strengthen the protection of EU trade marks, to prevent inconsistent decisions on the part of the courts and to ensure that the unitary character of those trade marks is not undermined, by means of decisions of EU trade mark courts which have effect and cover the entire area of the European Union.

Accordingly, in order to determine the defining characteristics of the concept of ‘establishment’ within the meaning of Article 97(1) of Regulation No 207/2009, it is necessary to take account not only of the wording of that provision, but also of its context and objectives.

(see paras 24-29)
Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium.

(see para. 72, operative part 1)
Article 3(3a) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as precluding the annulment, by a national legislature, of an on-going selection procedure for the allocation of radio frequencies conducted by the competent national regulatory authority in circumstances such as those of the case in the main proceedings which was suspended by ministerial order.

Article 9 of Directive 2002/21, as amended by Directive 2009/140, Articles 3, 5 and 7 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), as amended by Directive 2009/140, and Articles 2 and 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, must be interpreted as not precluding a selection procedure for the allocation of radio frequencies free of charge, which was commenced in order to remedy the unlawful exclusion of certain operators from the market, from being replaced by a fees-based procedure initiated under an amended Radio Frequency Allocation Plan subsequent to a reduction in their number, provided that the new selection procedure is based on objective, transparent, non-discriminatory and proportionate criteria and that it is in line with the objectives laid down in Article 8(2) to (4) of Directive 2002/21, as amended. It is for the referring court to ascertain, taking into account all the relevant circumstances of the case, whether the conditions set out in the fee-based selection procedure are such as to allow an actual entry of new entrants into the digital television market without unduly favouring analogue or digital incumbents.

(see para. 77, operative part 2)
Where, following the annulment of a decision adopted on the basis of provisions of the ECSC Treaty and finding a breach of Article 65 CS, the Commission readopts, after the expiry of that Treaty, the annulled decision on the legal basis of Article 7(1) and Article 23(2) of Regulation No 1/2003, the procedure leading to that new decision must comply with the rules of procedure laid down by that regulation, even if the procedure began before that regulation came into force.

Given that the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred, the Commission is not obligated to adopt a new statement of objections before readopting a decision establishing an infringement of Article 65 CS that was annulled on the ground that the Commission did not have power to adopt it on the basis of the ECSC Treaty, which was no longer in force at the date of adoption of that decision.

Under the procedural rules established by Regulation No 1/2003, as made explicit in Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU], it is, however, provided that the competition authorities of the Member States are to be invited to participate in the oral hearing which, upon the request of the addressees of the statement of objections, is to follow the issuing of that statement. It follows that the Commission is required, in application of Articles 12 and 14 of Regulation No 773/2004, to give the parties the opportunity to develop their arguments during a hearing to which the competition authorities of the Member States were invited.

Having regard to the importance, in the context of a procedure provided for by Regulations No 1/2003 and 773/2004, of holding, at the request of the parties concerned, an oral hearing to which the competition authorities of the Member States are invited, in accordance with Article 14(3) of the latter regulation, failure to hold such a hearing constitutes infringement of an essential procedural requirement. In so far as the right to such a hearing, provided for by Regulation No 773/2004, was not respected, it is not necessary for the undertaking, the rights of which have been infringed in this way, to demonstrate that such infringement might have influenced the course of the proceedings and the content of the decision at issue to its detriment. Accordingly, the procedure is necessarily vitiated, regardless of any possible detrimental consequences for the undertaking concerned that could result from that infringement.

(see paras 25, 26, 29, 34, 35, 38, 40, 44, 45, 47-49)
By failing to ensure that the amount due by way of additional levy in respect of milk for the actual years in which the additional levy was in fact applied was in fact allocated to the producers which had contributed to each of the production overruns and was paid at the appropriate time, upon their being given notification of the amount payable, by the purchasers or the producers in the case of direct sales, or where the levy was not paid within the period prescribed, was registered and, where possible, recovered by way of enforcement from those purchasers or producers, a Member State fails to fulfil the obligations imposed on it by Articles 1 and 2 of Regulation No 3950/92 establishing an additional levy in the milk and milk products sector, Article 4 of Regulation No 1788/2003 establishing a levy in the milk and milk products sector, of Articles 79, 80 and 83 of Regulation No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), of Article 7 of Regulation No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products, of Article 11(1) and (2) of Regulation No 1392/2001 laying down detailed rules for applying Regulation No 3950/92, and, finally, of Articles 15 and 17 of Regulation No 595/2004 laying down detailed rules for applying Regulation No 1788/2003, as amended by Regulation No 1468/2006.

In fact, first, in accordance with Article 2(1) of Regulation No 3950/92, the additional levy established by Article 1 of that regulation is to be allocated among the producers who contributed to the overrun of the reference quantities. Such a distribution of the additional levy is also provided for in Article 4 of Regulation No 1788/2003 and in Articles 79, 80 and 83 of Regulation No 1234/2007. Second, in accordance with Article 7 of Regulation No 536/93, Article 11(1) and (2) of Regulation No 1392/2001 and Articles 15 and 17 of Regulation No 595/2004, the Member States are to take all the measures necessary to ensure that the levy, including the interest due in the event of failure to comply with the payment period, is correctly charged and that it falls on the producers who contributed to the overrun. The fact that the scheme for the additional levy on milk gave rise to legal and political difficulties at the EU level, and that the scheme was eventually replaced, in no way justifies the failure of Member States to take all the measures necessary to ensure its effectiveness at the national level.

(see paras 40, 41, 57, operative part 1)
Admittedly, the principle that procurement procedures must ensure equal treatment and be transparent means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure. Accordingly, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention.

Nevertheless, it is possible for a contracting authority to determine, after expiry of the time-limit for submitting tenders, weighting factors for sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention. That subsequent determination must, however, satisfy three conditions, namely, it must not: (i) alter the criteria for the award of the contract set out in the contract documents or contract notice; (ii) contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and (iii) have been adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.

(see paras 31-33)
7

Article 10 of that directive provides: ‘1. Where an irregularity has occurred during a movement of excise goods under a duty suspension arrangement, giving rise to their release for consumption in accordance with Article 7(2)(a), the release for consumption shall take place in the Member State where the irregularity occurred. 2. Where an irregularity has been detected during a movement of excise goods under a duty suspension arrangement, giving rise to their release for consumption in accordance with Article 7(2)(a), and it is not possible to determine where the irregularity occurred, it shall be deemed to have occurred in the Member State in which and at the time when the irregularity was detected. 3. In the situations referred to in paragraphs 1 and 2, the competent authorities of the Member States where the goods have been or are deemed to have been released for consumption shall inform the competent authorities of the Member State of dispatch. 4. Where excise goods moving under a duty suspension arrangement have not arrived at their destination and no irregularity giving rise to their release for consumption in accordance with Article 7(2)(a) has been detected during the movement, an irregularity shall be deemed to have occurred in the Member State of dispatch and at the time when the movement began, unless, within a period of four months from the start of the movement in accordance with Article 20(1), evidence is provided to the satisfaction of the competent authorities of the Member State of dispatch of the end of the movement in accordance with Article 20(2), or of the place where the irregularity occurred. … 6. For the purposes of this Article, “irregularity” shall mean a situation occurring during a movement of excise goods under a duty suspension arrangement, other than the one referred to in Article 7(4), due to which a movement, or a part of a movement of excise goods, has not ended in accordance with Article 20(2).’
10

Article 23 of the Framework Decision provides: ‘1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 5. Upon expiry of the time-limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.’