ddrg/super_eurlex huggingface dataset:
Case C‑416/14

Fratelli De Pra SpA

and

SAIV SpA

v

Agenzia Entrate — Direzione Provinciale Ufficio Controlli Belluno

and

Agenzia Entrate — Direzione Provinciale Ufficio Controlli Vicenza

(Request for a preliminary ruling from the Commissione tributaria regionale di Mestre-Venezia)

‛Reference for a preliminary ruling — Telecommunications networks and services — Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC — Free circulation of terminal equipment for terrestrial mobile telecommunications — Directive 1999/5/EC — Tax on the use of equipment — General authorisation or licence for use — Subscription contract equivalent to a general authorisation or licence — Differential treatment of users depending on whether or not they have a subscription contract’

Summary — Judgment of the Court (Eighth Chamber), 17 September 2015

Approximation of laws — Electronic communications networks and services — Directives 1999/5, 2002/19, 2002/20, 2002/21 and 2002/22 — Subscription for mobile telephony — National legislation providing for differential treatment of users of terminal equipment for telecommunications who have concluded a subscription contract for mobile telephony services and those who have purchased those services in the form of pay-as-you-go cards — Lawfulness

See the text of the decision. (see para. 27)

Directive 1999/5 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, in particular Article 8 thereof; Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities; Directive 2002/20 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140; Directive 2002/21 on a common regulatory framework for electronic communications networks and services; and Directive 2002/22 on universal service and users’ rights relating to electronic communications networks, as amended by Directive 2009/136, must be interpreted as not precluding national rules on the application of a charge under which the use of terminal equipment for terrestrial mobile radio communication under a subscription contract is subject to a general authorisation or a licence and to the payment of such a charge, provided that the subscription contract itself is equivalent to a licence or general authorisation and, accordingly, no intervention is required in that regard by the public administrative authorities. (see para. 46, operative part 1)

Article 20 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks, as amended by Directive 2009/136, and Article 8 of Directive 1999/5 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity must be interpreted as not precluding, for the purposes of the application of a charge, a subscription contract for mobile telephony services from being equated with a general authorisation or a radio station licence, which must moreover include details of the type of equipment concerned and the corresponding certification. (see paras 51, operative part 2)
2.

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Likelihood of association — Earlier trade marks with characteristics enabling them to be regarded as part of the same ‘series’ or ‘family’ — Conditions (Council Regulation No 40/94, Art. 8(1)(b)) (see para. 32)
Case C‑8/14

BBVA SA

v

Pedro Peñalva López and Others

(Request for a preliminary ruling

from the Juzgado de Primera Instancia No 4 de Martorell)

‛Reference for a preliminary ruling — Directive 93/13/EEC — Mortgage loan agreement — Unfair terms — Enforcement proceedings — Opposition — Time limits’

Summary — Judgment of the Court (First Chamber), 29 October 2015

Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Mortgage enforcement proceedings ongoing on the date of entry into force of a national transitional provision providing for a time limit within which to object to enforcement — Time limit starting to run from the day following the date of publication of the regulation — Non-compliance with the principle of effectiveness

(Council Directive 93/13, Arts 6 and 7)

Articles 6 and 7 of Directive 93/13 on unfair terms in consumer contracts must be interpreted as precluding a national transitional provision which, as regards mortgage enforcement proceedings which were instituted before the date of entry into force of the law of which that provision forms part and which were not concluded at that date, imposes a time limit on consumers calculated from the day following the publication of that law within which to object to enforcement on the basis of the alleged unfairness of contractual terms.

Although, having regard to the length of the period within which to oppose enforcement granted to the consumer, that transitional provision cannot be regarded as undermining the principle of effectiveness, the fact that that period begins to run without the consumers concerned being personally informed of the possibility to raise a new ground of objection in enforcement proceedings which were already in progress before the entry into force of that law, is not such as to guarantee full enjoyment of that period and, therefore, the effective exercise of the new right recognised by the legislative amendment concerned.

Therefore, that transitional measure infringes the principle of effectiveness.

(see paras 32, 39, 41, 42, operative part)
The concept of project of common interest within the meaning of Article 171(1) TFEU and the second paragraph of Article 172 TFEU must be interpreted as not applying to a project which merely extends an existing rail freight corridor. The concept does, however, cover projects which are more than a mere traffic coordination facility and which include a qualitative structural improvement of the initial rail freight corridor.

The concept of project of common interest referred to in those provisions is not defined by the FEU Treaty. It is apparent from the first and third indents of Article 171(1) TFEU that the European Union is to establish guidelines in order to achieve the objectives referred to in Article 170 TFEU and that those guidelines are to identify projects of common interest and that the European Union may support such projects. In that context, as regards transport infrastructure, Regulation No 1315/2013 on Union guidelines for the development of the trans-European transport network identifies projects of common interest as the principal instrument for the implementation of a trans-European transport network. It is apparent from recital 8 of that regulation that that network must be developed through the creation of new transport infrastructure, through the rehabilitation and upgrading of existing infrastructure and through measures promoting its resource-efficient use. In that regard, while it is true that a measure does not have to create a new transport infrastructure in order to be recognised as a project of common interest, such a project must none the less involve investment which, at the very least, is intended to rehabilitate or upgrade an existing infrastructure with a view to making it more efficient and effective, as is apparent in particular from Article 7 of Regulation No 1315/2013.

In addition, it is evident from Article 48(1) of Regulation No 1315/2013, which merely refers to adequate coordination between the core network corridors and the rail freight corridors, that, when exercising the power conferred on them by Article 171(1) TFEU and the first paragraph of Article 172 TFEU, the Parliament and the Council took the view that the rail freight corridors do not fall within the projects of common interest identified by the regulation. Furthermore, Regulation No 913/2010 concerning a European rail network for competitive freight does not, even as regards existing freight corridors, provide for them to be developed as infrastructure projects.

(see paras 43, 44, 46, 51-53, 55, 58, 60)
Article 45 TFEU must be interpreted as meaning, first, that it applies to a situation in which a national of a Member State, residing and working in that State, holds a diploma obtained in another Member State, which he intends to use in order to register for a competition to recruit legal secretaries at the Cour de cassation of the first Member State, and, second, that such a situation does not fall within Article 45(4) TFEU.

Directive 2005/36 on the recognition of professional qualifications must be interpreted as meaning that the office of legal secretary at the Cour de cassation is not a ‘regulated profession’ within the meaning of that directive.

Under Article 3(1)(a) of that directive, the concept of regulated profession covers a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications.

It follows from Article 3(1)(b), (c) and (e) thereof that the concept of specific professional qualifications in Article 3(1)(a) thereof does not cover all qualifications attested by evidence of formal qualifications, but only these relating to training which is specifically designed to prepare candidates to exercise a given profession.

The formal qualifications required to gain access to the office of legal secretary at the Cour de cassation do not specifically aim to prepare holders for that post, but give access to a wide range of legal careers.

Therefore, such formal qualifications do not confer ‘specific professional qualifications’ within the meaning of Article 3(1)(a) of Directive 2005/36 on, the possession of which is required for access to or the pursuit of the office of legal secretary at the Cour de cassation.

Therefore, that post does not constitute a ‘regulated profession’ within the meaning of Directive 2005/36.

(see paras 37-40, 42, 45, operative part 2)
6.

Appeal — Grounds — 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 — Material inaccuracy of the findings of fact not resulting from evidence in the file — 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. 169(2)) (see para. 73)
A Member State which has not repealed, with retroactive effect from the date of its accession to the European Union, national legislation in accordance with which a civil servant under the age of 45 who resigns from his position in the national civil service to carry on a professional activity in another Member State or within an EU institution or other international organisation receives immediately a lump sum and loses his future pension rights whereas that is not the case for civil servants who continue in that employment or leaves that employment to carry on other public duties in the first Member State, fails to fulfil its obligations under Articles 45 TFEU and 48 TFEU and Article 4(3) TEU. Such legislation deters workers from leaving their Member State of origin to carry on a professional activity in another Member State, within an EU institution or within another international organisation and has the effect of creating unequal treatment between migrant workers including those who work in the EU institutions or in another international organisation, on the one hand, and civil servants who have worked in the Member State of origin, on the other.

While that legislation applies both to national civil servants choosing to resign in order to work in the private sector in their Member State of origin and to those resigning and leaving that Member State in order to work in another Member State, within an EU institution or other international organisation, the fact remains that that legislation directly affects the access of national civil servants to the employment market in Member States other than their Member State of origin and is thus capable of impeding freedom of movement for workers.

For a measure to restrict freedom of movement, it is not necessary for it to be based on the nationality of the persons concerned or even for it to have the effect of bestowing an advantage on all national workers or of operating to the detriment solely of nationals of other Member States to the exclusion of national workers. It is enough that the measure should benefit certain categories of person pursuing occupational activity in the Member State in question.

(see paras 43, 45-47, 58, operative part)
Article 28 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as meaning that a Member State may provide that an operator of a public electronic communications network must ensure that all end-users are able to access non-geographic numbers on its network in that State and not only those of other Member States.

Articles 5(1) and 8(3) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), read in conjunction with Article 28 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), must be interpreted as allowing a national regulatory authority (NRA), in resolving a dispute between two operators, to impose on one of them the obligation to ensure that end-users are able to access services using non-geographic numbers provided on the other’s network and to set, on the basis of Article 13 of Directive 2002/19, pricing procedures for that access between those operators, provided that those obligations are objective, transparent, proportionate, non-discriminatory, based on the nature of the problem identified and justified in the light of the objectives laid down in Article 8 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive), and the procedures provided for in Articles 6 and 7 of that directive have, where applicable, been observed, which it is for the national court to verify.

In the context of the application of Article 28 of the Universal Service Directive, Article 8(3) of the Access Directive does not preclude the imposition of obligations related to price controls, such as those referred to in Article 13(1) of the Access Directive, on an operator which does not have significant market power on the relevant market, provided that the obligation constitutes a necessary and proportionate measure to ensure that end-users can access services using non-geographic numbers in the European Union.

Since Article 13 of the Access Directive does not regulate pricing procedures, it is for the NRA to set those detailed rules whilst ensuring that they fulfil the conditions laid down in Article 8(4) of that directive.

The possibility for an NRA to adopt a decision which would take the place of a contract concluded by the operators concerned does not disregard the freedom to conduct a business, provided that the obligations imposed in the course of resolving a dispute between the operators concerned were necessary and proportionate. Restrictions may be imposed on the exercise of the freedom to pursue a trade or profession, as on the exercise of the right to property, provided that the restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.

(see paras 51, 52, 55-62, operative part 2)
The question whether the General Court has taken the right legal criterion as the basis for its appraisal of the facts and the evidence is a question of law, which is amenable to review by the Court of Justice in an appeal.

When examining a breach of EU competition law, in order to assess whether that subsidiary decides independently upon its own conduct on the market or carries out, in all material respects, the instructions given to it by its parent company, the EU judicature must take into consideration all relevant factors, which may vary from case to case and therefore cannot be set out in an exhaustive list.

As part of that review, it is for the EU judicature to carry out an assessment of the facts which are contemporaneous with the period of the infringement, but without prejudice to the possibility of relying on elements relating to a prior period, in so far as it is able to establish the relevance of those elements to the period of the infringement and it does not automatically apply to the period of the infringement the conclusions stemming from the assessment of elements prior to that period.

As part of this overall assessment, although the existence of an express instruction given by a parent company to its subsidiary not to participate in any anticompetitive practices in a given market can be a strong indication of the actual exercise of decisive influence by the parent over the subsidiary, the fact that the subsidiary did not comply with this instruction cannot be regarded as a strong indication of actual exercise of such influence.

For that reason, the fact that a subsidiary does not comply with an instruction given by its parent company is not sufficient, by itself, to establish the absence of actual exercise of decisive influence by the parent over the subsidiary, given that it is not necessary for the subsidiary to carry out all the parent company’s instructions to demonstrate decisive influence, as long as the failure to carry out those instructions is not the norm.

Lastly, the fact that it is difficult to adduce the evidence necessary to rebut a presumption of actual exercise of decisive influence does not in itself mean that that presumption is in fact irrebuttable, especially where the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity.

(see paras 33, 34, 39-41, 44)
Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity and the principle of proportionality must be interpreted as:

— not precluding national legislation under which sellers of heating fuel are required to submit, within a prescribed time limit, a monthly list of statements from purchasers that the products purchased are for heating purposes, and

— precluding national legislation under which, if a list of statements from purchasers is not submitted within a prescribed time limit, the excise duty applicable for motor fuels is applied to the heating fuel sold, even though it has been found that the intended use of that product for heating purposes is not in doubt.

On the one hand, having regard to the discretion which Member States have as to the measures and mechanisms to adopt in order to prevent tax avoidance and evasion connected with the sale of heating fuels and since a requirement to submit to the competent authorities a list of statements from purchasers is not manifestly disproportionate, it must be held that such a requirement is an appropriate measure to achieve such an objective and does not go beyond what is necessary to attain it.

On the other hand, a provision of national law, under which, in the event of failure to submit a list of statements from purchasers within the time limit, the excise duty applicable for motor fuels is automatically applied to heating fuels even if those fuels are used as such, runs counter to the general scheme and purpose of Directive 2003/96, which are based on the principle that energy products are taxed in accordance with their actual use. Furthermore, such an automatic application of the rate of excise duty provided for motor fuels because of the infringement of the requirement to submit such a list infringes the principle of proportionality. The application of the rate of excise duty provided for motor fuels to heating fuels because of the infringement of that requirement, where it has been held that there was no doubt as to the intended use of those products, goes further than is necessary to prevent tax avoidance and evasion.

(see paras 25, 26, 33-35, 39, 42, operative part)
Article 167, Article 178(a), Article 179 and Article 226(3) of Directive 2006/112 on the common system of value added tax must be interpreted as precluding national legislation under which the correction of an invoice in relation to a detail which must be mentioned, namely the value added tax (VAT) identification number, does not have retroactive effect, so that the right to deduct VAT exercised on the basis of the corrected invoice relates not to the year in which the invoice was originally drawn up but to the year in which it was corrected.

In accordance with the first paragraph of Article 179 of Directive 2006/112, the deduction is to be made by subtracting from the total amount of VAT due for a given tax period the total amount of VAT ‘in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article 178’. It follows that the right to deduct VAT must in principle be exercised in respect of the period during which, first, the right has arisen and, secondly, the taxable person is in possession of an invoice.

The right to deduction of VAT provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. The right is exercisable immediately in respect of all the taxes charged on transactions relating to inputs. Moreover, the fundamental principle of the neutrality of VAT requires deduction of input VAT to be allowed if the substantive requirements are satisfied, even if the taxable persons have failed to comply with some formal conditions. In this context, holding an invoice showing the details mentioned in Article 226 of Directive 2006/112 is a formal condition, not a substantive condition, of the right to deduct VAT.

(see paras 35, 37, 38, 43, operative part)
Judgment of the Court (Eighth Chamber) of 27 October 2016 — Debonair Trading Internacional v EUIPO

(Case C‑537/14 P) ( 1 )

‛Appeal — EU trade mark — Regulation (EC) No 207/2009 — Article 8(1)(b) and (5) — Figurative mark including the word elements ‘SO’BiO ētic’ — Opposition by the proprietor of the EU and national word and figurative marks including the word element ‘SO…?’ — Refusal of registration’

Appeal — Grounds — Inadequate or contradictory grounds — Scope of the obligation to state reasons (Art. 256(1) TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.) (see paras 32, 34-36)

Operative part

The Court:

1. Sets aside the judgment of the General Court of the European Union of 23 September 2014, Groupe Léa Nature v OHIM — Debonair Trading Internacional (SO’BiO ētic) (T‑341/13, not published, EU:T:2014:802);.

2. Refers the case back to the General Court of the European Union;

3. Reserves the costs.

( 1 ) OJ C 118, 13.4.2015.