ddrg/super_eurlex huggingface dataset:
31

In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the concept of “sending” within the meaning of Article 2(h) of Directive [2002/58] cover a situation in which a message is not transmitted by a user of an electronic communications service, via a service provider, to the electronic “address” of a second user, but, as a consequence of the opening of the password-protected internet page of an email account, is automatically displayed by ad servers in certain areas designated for that purpose in the email inbox of a randomly selected user (inbox advertising)? (2) Does the collection of a message within the meaning of Article 2(h) of Directive [2002/58] presuppose that, after becoming aware of the existence of a message, the recipient triggers the programmatically prescribed transmission of the message data by making an intentional collection request, or is it sufficient for the appearance of a message in an email account inbox to be triggered by the user opening the password-protected internet page of his or her e-mail account? (3) Does a message, which is not sent to an individual recipient already specifically identified prior to transmission but is inserted into the inbox of a randomly selected user, constitute an electronic mail within the meaning of Article 13(1) of Directive [2002/58]? (4) Is electronic mail used for the purposes of direct marketing, within the meaning of Article 13(1) of Directive [2002/58], only where the user is found to be the subject of a burden that is greater than a nuisance? (5) Does individual advertising meet the conditions governing the presence of “solicitation”, for the purposes of the first sentence of point 26 of Annex I to Directive [2005/29], only where a customer is contacted via a medium traditionally used for individual communication between a sender and a recipient, or is it sufficient if – as with the advertisement at issue in the present case – an individual connection is established by the fact that the advertisement is displayed in the inbox of a private email account, and thus in a section in which the customer expects to find messages addressed to him or her personally?’
9

Point FCL.010 of that annex, headed ‘Definitions’, provides: ‘For the purposes of this Annex (Part-FCL), the following definitions shall apply: … “Full Flight Simulator” (FFS) means a full size replica of a specific type or make, model and series aircraft flight deck, including the assemblage of all equipment and computer programmes necessary to represent the aircraft in ground and flight operations, a visual system providing an out-of-the-flight deck view, and a force cueing motion system. … “Flight Training Device” (FTD) means a full size replica of a specific aircraft type’s instruments, equipment, panels and controls in an open flight deck area or an enclosed aircraft flight deck, including the assemblage of equipment and computer software programmes necessary to represent the aircraft in ground and flight conditions to the extent of the systems installed in the device. It does not require a force cueing motion or visual system, except in the case of helicopter FTD levels 2 and 3, where visual systems are required. “Flight and Navigation Procedures Trainer” (FNPT) means a training device which represents the flight deck or cockpit environment, including the assemblage of equipment and computer programmes necessary to represent an aircraft type or class in flight operations to the extent that the systems appear to function as in an aircraft. … “Instrument flight time” means the time during which a pilot is controlling an aircraft in flight solely by reference to instruments. “Instrument ground time” means the time during which a pilot is receiving instruction in simulated instrument flight, in flight simulation training devices (FSTD). “Instrument time” means instrument flight time or instrument ground time. … “Multi-crew cooperation” (MCC) means the functioning of the flight crew as a team of cooperating members led by the pilot-in-command. … “Pilot-in-command” (PIC) means the pilot designated as being in command and charged with the safe conduct of the flight. … “Skill test” means the demonstration of skill for a licence or rating issue, including such oral examination as may be required. … “Student pilot-in-command” (SPIC) means a student pilot acting as pilot-in-command on a flight with an instructor where the latter will only observe the student pilot and shall not influence or control the flight of the aircraft. …’
9

Article 6 of legge n. 9, Norme per l’attuazione del nuovo Piano energetico nazionale: aspetti istituzionali, centrali idroelettriche ed elettrodotti, idrocarburi e geotermia, autoproduzione e disposizioni fiscali (Law No 9 for the implementation of the new national energy plan: institutional aspects, hydroelectric plants and power line networks, hydrocarbons and geothermal energy, self-production and fiscal provisions) of 9 January 1991, in the version applicable to the dispute in the main proceedings (Ordinary Supplement to GURI No 13 of 16 January 1991; ‘Law No 9/1991’), provides: ‘1. The exploration permit shall be granted by decree of the Ministro dell’industria, del commercio e dell’artigianato (Minister for Industry, Trade and Crafts), after consulting the Technical Committee for Hydrocarbons and Geothermal Energy …, in agreement with the Ministro dell’ambiente (Minister for the Environment) and the Ministro della marina mercantile (Minister for the Merchant Navy), according to their respective spheres of competence, with regard to the requirements relating to the activity to be pursued in the maritime domain, in territorial waters and on the continental shelf. 2. The area covered by the exploration permit shall be such as to permit the rational development of the exploration programme and in any case may not exceed 750 km2; adjacent land and sea areas may be included in the area covered by the permit. 3. If the Minister for Industry, Trade and Crafts does not consider the area requested to be of a sufficient dimension or rational configuration for the purpose of optimal exploration, he or she may decide not to grant the exploration permit until it is possible to combine the area under consideration with neighbouring areas. 4. The duration of the permit shall be six years. 5. The permit holder shall be entitled to two successive extensions of three years each, provided he or she has fulfilled the obligations under the permit. 6. The permit holder may be granted a further extension if, on expiry of the permit, drilling or production test works are still in progress for reasons not attributable to his or her inactivity, negligence or incompetence. The extension shall be granted for the time necessary to conclude the works and, in any event, for a period no longer than one year. The detailed technical and financial programme for the new period of works shall be approved with the extension decree.’
18

The referring court considers that the provisions of the regulation of 20 March 2012, which lay down conditions and restrictions as to the method of installation of gas pipes in light of the specific characteristics of the country, in particular earthquakes, have their basis in Article 2 of Directive 97/23 and comply with the provisions of that article. According to that court, those conditions and restrictions comply with Article 36 TFEU, in so far as they apply without distinction to all types of pipes, regardless of the material from which they are made or their country of origin, have been deemed necessary by the competent national authority in order to ensure the health and safety of persons, comply with the principle of proportionality and do not entail any modification of the material sold by the applicant in the main proceedings. The referring court thus considers that the plea for annulment raised by the applicant in the main proceedings and directed against those provisions could be rejected as unfounded. Nevertheless, it has doubts as to whether certain provisions of the regulation of 20 March 2012 comply with Article 4(1)(1.1), Article 7(4) and Article 8 of, and Annex I to, Directive 97/23.
17

Article 16 of Directive 2017/1132, entitled ‘Disclosure in the register’, provides in paragraphs 3 and 5 to 7 thereof: ‘3. All documents and particulars which are required to be disclosed pursuant to Article 14 shall be kept in the file, or entered in the register; the subject matter of the entries in the register shall in every case appear in the file. … 5. Disclosure of the documents and particulars referred to in paragraph 3 shall be effected by publication in the national gazette designated for that purpose by the Member State, either of the full text or of a partial text, or by means of a reference to the document which has been deposited in the file or entered in the register. The national gazette designated for that purpose may be kept in electronic form. … 6. The documents and particulars may be relied on by the company as against third parties only after they have been disclosed in accordance with paragraph 5, unless the company proves that the third parties had knowledge thereof. However, with regard to transactions taking place before the sixteenth day following the disclosure, the documents and particulars shall not be relied on as against third parties who prove that it was impossible for them to have had knowledge thereof. 7. Member States shall take the necessary measures to avoid any discrepancy between what is disclosed in accordance with paragraph 5 and what appears in the register or file. However, in cases of discrepancy, the text disclosed in accordance with paragraph 5 may not be relied on as against third parties; such third parties may nevertheless rely thereon, unless the company proves that they had knowledge of the texts deposited in the file or entered in the register. Third parties may, moreover, always rely on any documents and particulars in respect of which the disclosure formalities have not yet been completed, save where non-disclosure causes them not to have effect.’
24

Article 202a of the ZKPO, entitled ‘Recalculation of withholding tax’, in the version in force from 1 January 2010, provided, in paragraphs 1 to 4: ‘1. … A non-resident legal person which is resident for tax purposes in a Member State of the European Union or in another State which is a party to the Agreement on the European Economic Area of 2 May 1992 [(OJ 1994 L 1, p. 3)] shall be entitled to opt for the recalculation of withholding tax in respect of the income referred to in Article 12(2), (3), (5) and (8). Where the non-resident person opts for the recalculation of withholding tax, that recalculation shall include all the income referred to in Article 12(2), (3), (5) and (8) which the non-resident person has received during the financial year. 2. Where the non-resident person opts for the recalculation of withholding tax in respect of the income which it receives, the recalculated tax shall be equivalent to the corporation tax which would have been payable on that income if it had been received by a resident legal person. Where the non-resident person has incurred expenditure related to income within the meaning of the first sentence on which expenditure tax would have been payable if such expenditure had been incurred by a resident legal person, the amount of recalculated tax shall be increased by that tax. 3. Where the amount of the withholding tax provided for in Article 195(1) exceeds the amount of tax recalculated in accordance with paragraph 2, the difference shall be repaid up to the amount of the withholding tax provided for in Article 195(1), which may not be deducted by the non-resident person from the tax payable in the State of residence. 4. The annual tax return filed shall indicate whether the option for the recalculation of withholding tax was exercised. The non-resident person shall file its tax return at the Teritorialna direktsia na Natsionalna agentsia za prihodite – Sofia [(Regional Directorate of the National Revenue Agency for the City of Sofia, Bulgaria)] by 31 December of the year following that in which the income was received.’
23

In that regard, it is settled case-law that Article 9 of the VAT Directive assigns a very wide scope to VAT (judgments of 21 April 2005, HE, C‑25/03, EU:C:2005:241, paragraph 40, and of 13 June 2018, Polfarmex, C‑421/17, EU:C:2018:432, paragraph 39 and the case-law cited). Thus, an activity is, as a general rule, categorised as ‘economic’. within the meaning of Article 9, where it is permanent and is carried out in return for remuneration which is received by the person carrying out the activity (judgment of 13 June 2018, Polfarmex, C‑421/17, EU:C:2018:432, paragraph 38 and the case-law cited). Furthermore, in order to establish that an economic activity is being carried out in an independent manner, it is necessary to examine whether the persons concerned perform their activities in their own name, on their own behalf and under their own responsibility, and whether they bear the economic risk associated with carrying out those activities (judgment of 12 October 2016, Nigland Others, C‑340/15, EU:C:2016:764, paragraph 28 and the case-law cited). Finally, the status of taxable person must be assessed exclusively on the basis of the criteria set out in Article 9 of that directive (see, to that effect, judgment of 21 April 2005, HE, C‑25/03, EU:C:2005:241, paragraph 41).
37

It should also be borne in mind that the principle of primacy places the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law under a duty, where it is unable to interpret national legislation in compliance with the requirements of EU law, to give full effect to the requirements of that law in the dispute before it, if necessary disapplying of its own motion any national legislation or practice, even if adopted subsequently, which is contrary to a provision of EU law with direct effect, and it is not necessary for that court to request or await the prior setting aside of such national legislation or practice by legislative or other constitutional means (see, to that effect, judgments of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 58 and 61, and of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 252).
10

According to Article 253 of the LEC: ‘1. The applicant shall indicate and justify the value of the claim in the application initiating proceedings. That value shall be calculated, in any event, in accordance with the rules laid down in the preceding provisions. A change in the value of the property forming the subject matter of the dispute, which occurs after the action has been brought, shall not result in any change in the value of the claim or of the type of proceedings. 2. The value of the claim shall be indicated clearly and precisely. It may, however, be indicated in relative terms if the applicant duly proves that the financial interest of the claim is at least equal to the minimum value corresponding to the ordinary procedure or does not exceed the maximum amount fixed for the summary procedure (juicio verbal). The applicant may not under any circumstances merely indicate the type of procedure to be followed or leave to the defendant the task of specifying the value of the claim. 3. If the applicant is unable to calculate the amount of the claim, even in relative terms, because the subject matter of the action has no financial interest since it is not possible to calculate that interest in accordance with any of the statutory rules for specifying the amount of the claim, or because, although an applicable calculation rule exists, that amount could not be determined at the time when the action was lodged, the action shall be conducted in accordance with the rules applicable to ordinary proceedings.’
5

Article 30b of the VAT Directive provides: ‘1. Each transfer of a single-purpose voucher made by a taxable person acting in his own name shall be regarded as a supply of the goods or services to which the voucher relates. The actual handing over of the goods or the actual provision of the services in return for a single-purpose voucher accepted as consideration or part consideration by the supplier shall not be regarded as an independent transaction. Where a transfer of a single-purpose voucher is made by a taxable person acting in the name of another taxable person, that transfer shall be regarded as a supply of the goods or services to which the voucher relates made by the other taxable person in whose name the taxable person is acting. Where the supplier of goods or services is not the taxable person who, acting in his own name, issued the single-purpose voucher, that supplier shall however be deemed to have made the supply of the goods or services related to that voucher to that taxable person. 2. The actual handing over of the goods or the actual provision of the services in return for a multi-purpose voucher accepted as consideration or part consideration by the supplier shall be subject to VAT pursuant to Article 2, whereas each preceding transfer of that multi-purpose voucher shall not be subject to VAT. Where a transfer of a multi-purpose voucher is made by a taxable person other than the taxable person carrying out the transaction subject to VAT pursuant to the first subparagraph, any supply of services that can be identified, such as distribution or promotion services, shall be subject to VAT.’
4

Article 4 of that directive, headed ‘Further grounds for refusal or invalidity concerning conflicts with earlier rights’, provided: ‘1. A trade mark shall not be registered or, if registered, shall be liable to be declared invalid: (a) if it is identical with an earlier trade mark, and the goods or services for which the trade mark is applied for or is registered are identical with the goods or services for which the earlier trade mark is protected; (b) if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark. 2. “Earlier trade marks” within the meaning of paragraph 1 means: (a) trade marks of the following kinds with a date of application for registration which is earlier than the date of application for registration of the trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks; (i) [EU] trade marks; (ii) trade marks registered in the Member State or, in the case of Belgium, Luxembourg or the Netherlands, at the Benelux Office for Intellectual Property; (iii) trade marks registered under international arrangements which have effect in the Member State; (b) [EU] trade marks which validly claim seniority …; (c) applications for the trade marks referred to in (a) and (b), subject to their registration; … 4. Any Member State may, in addition, provide that a trade mark shall not be registered or, if registered, shall be liable to be declared invalid where, and to the extent that: (a) the trade mark is identical with, or similar to, an earlier national trade mark within the meaning of paragraph 2 and is to be, or has been, registered for goods or services which are not similar to those for which the earlier trade mark is registered, where the earlier trade mark has a reputation in the Member State concerned and where the use of the later trade mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark; (b) rights to a non-registered trade mark or to another sign used in the course of trade were acquired prior to the date of application for registration of the subsequent trade mark, or the date of the priority claimed for the application for registration of the subsequent trade mark, and that non-registered trade mark or other sign confers on its proprietor the right to prohibit the use of a subsequent trade mark; (c) the use of the trade mark may be prohibited by virtue of an earlier right other than the rights referred to in paragraph 2 and point (b) of this paragraph and in particular: (i) a right to a name; (ii) a right of personal portrayal; (iii) a copyright; (iv) an industrial property right; …’
24

In support of that rejection, the General Court noted that an action brought on the basis of Article 270 TFEU and Article 91 of the Staff Regulations is admissible only where it concerns a dispute between the European Union and a person covered by those regulations. In order for an applicant to be regarded as a person to whom the Staff Regulations apply, the General Court held that the person must be so regarded not in any context, but in a context that either reflects a relevant connection between that person and the contested act, or reflects such a connection between that person and the official the harm to whose interests allegedly causes damage to that person. According to the General Court, that is the case for the siblings of an official, since Articles 40, 42b and 55a of the Staff Regulations apply to them. The General Court points out in that regard that the EU legislature intended to take note, by means of specific statutory provisions, of their close relationship with the official. The General Court stated that the fact that, at the time of the murder of the deceased official, his brother and sister were not actually in any of the situations envisaged by Articles 40, 42b and 55a of the Staff Regulations did not in any way preclude the recognition in those regulations of the ties between siblings. Thus, according to paragraph 54 of the judgment under appeal, those provisions of the Staff Regulations are relevant not because they correspond to the specific situation of the parties at the material time but because they demonstrate that those regulations recognise the family ties between officials and their siblings. According to the General Court, that assessment is supported by the findings of the Court of Justice in paragraphs 41 and 42 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (C‑417/14 RX‑II, EU:C:2015:588).
37

In the present case, it is apparent from the request for a preliminary ruling that the dispute in the main proceedings concerns the question whether the Republic of Austria is required to take into account, for the purpose of granting an old-age pension, child-raising periods completed by the applicant in the main proceedings in other Member States. The referring court states that such taking into account is excluded under Article 44(2) of Regulation No 987/2009, since that provision requires the person concerned to have pursued an activity as an employed or self-employed person in the Member State concerned ‘at the date when, under [the legislation of that Member State], the child-raising period started to be taken into account for the child concerned’, that date being determined by the national provisions of that Member State which govern the taking into account of child-raising periods. Even if, during her working life, the applicant in the main proceedings pursued an activity as an employed or self-employed person in Austria only and paid contributions to the social security scheme of that Member State only, it is established that on the relevant dates, which, pursuant to Austrian legislation, are 1 January 1988 and 1 March 1990, she did not pursue an activity as an employed or self-employed person in Austria. In those circumstances, the referring court asks whether, in the event that Article 44 is to be interpreted as meaning that it is not exclusive, the Republic of Austria would be required, in accordance with the case-law derived from the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475) – of which the underlying facts are, according to that court, comparable to those of the case in the main proceedings – to take those periods into account pursuant to Article 21 TFEU.