ddrg/super_eurlex huggingface dataset:
Competition – Fines – Amount – Determination – Determination of the basic amount – Gravity of the infringement – ‘Entry fee’ – Factors to be taken into consideration

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 20 to 23 and 25)

(see paras 114-119)
22

In those circumstances, the Landgericht Saarbrücken (Regional Court, Saarbrücken) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 10(2)(p) of [Directive 2008/48] to be interpreted as meaning that the mandatory information in relation to the “period during which the right of withdrawal may be exercised” or “other conditions governing the exercise thereof” must also include the requirements governing the start of the withdrawal period? (2) If the answer to the first question is in the affirmative: Does Article 10(2)(p) of [Directive 2008/48] preclude an interpretation to the effect that withdrawal information is “clear” and “concise” if it does not itself include in full the mandatory information to be provided with regard to the start of the withdrawal period, but in this respect refers to a provision of national law — in the present case, Paragraph 492(2) of the [BGB] in the version valid up to 12 June 2014 — which in turn refers to further national provisions — in the present case, Article 247(6) to (13) of the [EGBGB] in the version valid up to 12 June 2014 — and the consumer is therefore obliged to read numerous legislative provisions in a variety of legislative texts so as to gain clarity as to what mandatory information must be provided in order for the withdrawal period to start to run in the case of his or her loan agreement? (3) If Question 2 is answered in the negative (and there are no concerns in principle against a reference to provisions of national law): Does Article 10(2)(p) of [Directive 2008/48] preclude an interpretation to the effect that withdrawal information is “clear” and “concise” if the reference to a provision of national law — in the present case, Paragraph 492(2) of the [BGB] in the version valid up to 12 June 2014 — and the further reference — in the present case, to Article 247(6) to (13) of the [EGBGB] in the version valid up to 12 June 2014 — necessarily means that the consumer has to carry out a process of legal inference beyond simply reading the provisions — for instance, as to whether the loan was granted to him or her under conditions customary for contracts secured by mortgage and the interim financing thereof or whether linked agreements exist, so that he or she can gain clarity as to what mandatory information must be provided in order for the period of withdrawal to start to run in the case of his or her loan agreement?’
29

In accordance with the Court’s case-law in this field, it follows from a systematic interpretation of Regulation No 1393/2007 that that regulation provides for only two circumstances in which the service of a judicial document between Member States falls outside its scope, namely, first, where the permanent or habitual residence of the addressee is unknown and, second, where that person has appointed an authorised representative in the Member State where the judicial proceedings are taking place. By contrast, in other situations, where the person to be served with the judicial document resides in another Member State, the service of that document falls within the scope of Regulation No 1393/2007 and must, therefore, be carried out by the means put in place by the regulation for that purpose, as provided for in Article 1(1) thereof (judgments of 19 December 2012, Alder, C‑325/11, EU:C:2012:824, paragraphs 24 and 25, and of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraphs 68 and 69).
33

As to whether those fees are unavoidable within the meaning of the second sentence of Article 23(1) of Regulation No 1008/2008, it should be noted that, prima facie, the customer may avoid paying them by using the credit card approved by the air carrier to settle payment of the final price that is to be paid. However, it cannot be accepted that a price supplement is avoidable and therefore optional where the option offered to the consumer is subject to a condition imposed by the air carrier, by reserving the free nature of the service in question for the benefit of a restricted class of privileged consumers and by requiring, de facto, the consumers who do not form part of that class to either refuse the service that is free of charge, or not to proceed with their purchase immediately and to undertake steps that may entail costs in order to satisfy the condition required, at the risk, once those steps have been completed, of no longer being able to benefit from the offer or of no longer being able to benefit from the price originally indicated.
3

The first, second, third and eighth recitals of Directive 76/308 stated: ‘Whereas it is not at present possible to enforce in one Member State a claim for recovery substantiated by a document drawn up by the authorities of another Member State; Whereas the fact that national provisions relating to recovery are applicable only within national territories is in itself an obstacle to the establishment and functioning of the common market; whereas this situation prevents Community rules from being fully and fairly applied, particularly in the area of the common agricultural policy, and facilitates fraudulent operations; Whereas it is therefore necessary to adopt common rules on mutual assistance for recovery; … Whereas when the requested authority is required to act on behalf of the applicant authority to recover a claim, it must be able, if the provisions in force in the Member State in which it is situated so permit and with the agreement of the applicant authority, to allow the debtor time to pay or authorise payment by instalment; whereas any interest charged on such payment facilities must also be remitted to the Member State in which the applicant authority is situated.’
22

By judgment of 27 October 2017, the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland), before which A Oy brought an action, annulled that decision. That court held that the colocation centre services provided by A Oy could not be regarded as the supply of services connected with immovable property, within the meaning of Paragraph 67 of the AVL, and were therefore covered by the general rule laid down in Paragraph 65 of that law. It found, in that regard, that even if the IT equipment cabinets for holding the servers were fixed to the ground, they can be removed without destroying or altering the building or construction, within the meaning of Article 13b(d) of the Implementing Regulation. Those IT equipment cabinets did not therefore constitute immovable property within the meaning of that provision, since the customer does not gain possession of any part of the computing centre, regarded as a building, but merely has the opportunity to use the cabinets placed in that computing centre under optimal conditions. A Oy therefore provides its customers with a basket of services relating to the hosting of their servers, the principal supply of which is to offer them the best possible environment for the operation of their servers.
15

Article 128 of the Legea nr. 571/2003 privind Codul fiscal (Law No 571 establishing the Tax Code), in the version applicable to the facts in the main proceedings (‘the Tax Code’), provides: ‘(1). “Supply of goods” shall mean the transfer of the right to dispose of property as owner. … (9). Intra-Community supply is a supply of goods, within the meaning of paragraph (1), which are dispatched or transported from one Member State to another Member State by the supplier or person to whom the supply is made, or by another person on their behalf. (10). The transfer by a taxable person of goods forming part of his business from Romania to another Member State shall be treated as an intra-Community supply for consideration, except in cases provided for in paragraph (12) where there is no transfer. (11). In accordance with paragraph (10), “transfer” shall mean the dispatch or transport of movable tangible property by or on behalf of the taxable person, for the purposes of his business, from Romania to another Member State. (12). For the purposes of this Title, the dispatch or transport of goods from Romania to another Member State by or on behalf of the taxable person for the purposes of the following transactions shall not constitute a transfer: … (g) temporary use of the goods in question within the territory of the Member State of destination of the goods dispatched or transported, for the purposes of supplying services in the Member State of destination, by the taxable person established in Romania; … (13). If one of the conditions referred to in paragraph (12) is no longer satisfied, the dispatch or transportation of the goods in question shall be regarded as a transfer from Romania to another Member State. In those cases, the transfer shall be deemed to be carried out at the time when that condition ceases to be met.’
4

Article 11 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) is headed ‘Enforcement’ and is worded as follows: ‘1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers. Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may: (a) take legal action against such unfair commercial practices; and/or (b) bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings. It shall be for each Member State to decide which of these facilities shall be available and whether to enable the courts or administrative authorities to require prior recourse to other established means of dealing with complaints, including those referred to in Article 10. These facilities shall be available regardless of whether the consumers affected are in the territory of the Member State where the trader is located or in another Member State. … 2. Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest: (a) to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices; or (b) if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice, even without proof of actual loss or damage or of intention or negligence on the part of the trader. Member States shall also make provision for the measures referred to in the first subparagraph to be taken under an accelerated procedure: – either with interim effect, – or with definitive effect, on the understanding that it is for each Member State to decide which of the two options to select. Furthermore, Member States may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the continuing effects of unfair commercial practices the cessation of which has been ordered by a final decision: (a) to require publication of that decision in full or in part and in such form as they deem adequate; (b) to require in addition the publication of a corrective statement. …’
8

The VKI bases its application on Volkswagen’s liability in tort, delict and quasi-delict, relying on the fact that the 574 consumers who assigned to it their claims for the purposes of the action in the main proceedings purchased in Austria new or used vehicles equipped with an EA 189 engine before the disclosure to the public, on 18 September 2015, of Volkswagen’s manipulation of data relating to exhaust gas emissions from those vehicles. According to the VKI, those engines are equipped with a ‘defeat device’ which is unlawful under Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with regard to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1). The software in question makes it possible to display, during tests and when measurements are being taken, exhaust gas emissions that comply with the prescribed limit values, whereas a level of pollutants many times higher than the prescribed limit values is actually emitted under the real-world driving conditions of the vehicles concerned, that is to say, on the road. It was only by means of that software which manipulates data relating to those emissions that Volkswagen was able to obtain the type approval provided for under EU legislation for vehicles with the EA 189 engine.
20

Under Article 29 of that law, relating to the power to impose penalties: ‘1. The [CNMC] shall exercise the power to carry out inspections and to impose penalties in accordance with the provisions of Chapter II of Title IV of [the Law on the protection of competition], Title VI of [Ley 7/2010 General de la Comunicación Audiovisual (General Law 7/2010 on audiovisual communication) of 31 March 2010 (BOE No 70 of 1 April 2010)], Title VIII of [Ley 32/2003 General de Telecomunicaciones (General Law 32/2003 on telecommunications) of 3 November 2003 (BOE No 264 of 4 November 2003)], Title X of [Ley 54/1997 del Sector Eléctrico (Law 54/1997 on the electric sector) of 27 November 1997 (BOE No 285 of 28 November 1997, p. 35097)], Title VI of [Ley 34/1998 del sector de hidrocarburos (Law 34/1998 on the hydrocarbon sector) of 7 October 1998 (BOE No 241 of 8 October 1998)], Title VII of [Ley 43/2010 del servicio postal universal, de los derechos de los usuarios y del mercado postal (Law 43/2010 on the universal postal service, users’ rights and the postal market) of 30 December 2010 (BOE No 318 of 31 December 2010, p. 109195)] and Title VII of [Ley 39/2003 del Sector Ferroviario (Law 39/2003 on the railway sector) of 17 November 2003 (BOE No 276 of 17 November 2003)]. 2. For the purposes of exercising the power to impose penalties, there shall be the necessary operational separation between the investigation phase, which falls within the remit of the staff of the directorate responsible for the matter, and the decision-making phase, which falls within the remit of the Board. 3. The procedure for exercising the power to impose penalties shall be governed by the provisions of the present law, the laws referred to in paragraph 1 and, for any matter not covered by the above legislation, [Ley 30/1992 de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común (Law 30/1992 on the rules governing public authorities and the common administrative procedure) of 26 November 1992 (BOE No 285 of 27 November 1992)] and its implementing legislation. In particular, the penalty proceedings in relation to the protection of competition shall be governed by the specific provisions of Law 15/2007 of 3 July 2007. 4. The decision shall put an end to the administrative procedure, and an action may be brought against it before the administrative courts.’
26

By judgment of 8 May 2018, that court upheld that action and ordered Jobcenter Krefeld to pay the benefits applied for. That court held that, while JD could indeed no longer rely on the retention of the status of a worker during the period at issue as the basis for claiming a right of residence under Paragraph 2 of the FreizügG, he also derived such a right from the right of residence granted to his daughters by virtue of Article 10 of Regulation No 492/2011. Those daughters, who resided in and were attending school in Germany, can claim, as the minor children of a former migrant worker who was employed in that Member State, a right of residence under Article 10, which is then the basis for the right of residence of their father, as the parent primarily caring for them. In the opinion of that court, the right of residence derived from Article 10 for the purposes of education and training of the children of a (former) migrant worker is autonomous and independent of the rights of residence provided for by Directive 2004/38. Therefore, the rule established in Article 24(2) of that directive, derogating from the principle of equal treatment in relation to social assistance, is not applicable where the right of residence of the Union citizen concerned is based on Article 10 of Regulation No 492/2011. The exclusion from entitlement to the social assistance benefits provided for in point 2(c) of the second sentence of Paragraph 7(1) of the SGB II of foreign nationals and members of their families who derive their right of residence from Article 10 of Regulation No 492/2011 is therefore not compatible with EU law.
27

Consequently, the competent authorities of the Member State of importation must ensure, at the time of import and on the basis of the information in their possession, that the medicinal product imported as a parallel product and the medicinal product which is the subject of a marketing authorisation in the Member State of importation, even if not identical in all respects, have at least been manufactured according to the same formulation, have the same active ingredient and have the same therapeutic effect, and that the imported medicinal product does not pose a problem of quality, efficacy or safety. If all those criteria are satisfied, the medicinal product to be imported must be regarded as having already been placed on the market in that Member State and, consequently, must be entitled to benefit from the marketing authorisation issued for the medicinal product already on the market, unless there are countervailing considerations relating to the effective protection of the life and health of humans. Thus, that authority is required to authorise that medicinal product where it is convinced that that product, in spite of differences relating to the excipients, as the case may be, does not pose a problem of quality, efficacy or safety (judgment of 3 July 2019, Delfarma, C‑387/18, EU:C:2019:556, paragraphs 23 and 24 and the case-law cited).
5

Under Article 7a(1) to (3) of that directive: ‘1. In determining the levels of weighted average tolls to be charged on the infrastructure network concerned or a clearly defined part of such a network, Member States shall take into account the various costs set out in Article 7(9). The costs taken into account shall relate to the network or part of the network on which tolls are levied and to the vehicles that are subject to the tolling. Member States may choose not to recover these costs through toll revenue or to recover only a percentage of the costs. 2. Tolls shall be determined in accordance with Article 7 and paragraph 1 of this Article. 3. For new tolling arrangements other than those involving concession tolls put in place by Member States after 10 June 2008, Member States shall calculate costs using a methodology based on the core calculation principles set out in Annex III. For new concession tolls put in place after 10 June 2008, the maximum level of tolls shall be equivalent to, or less than, the level that would have resulted from the use of a methodology based on the core calculation principles set out in Annex III. The assessment of such equivalence shall be made on the basis of a reasonably long reference period appropriate to the nature of a concession contract. Tolling arrangements already in place on 10 June 2008 or for which tenders or responses to invitations to negotiate under the negotiated procedure have been received pursuant to a public procurement process before 10 June 2008 shall not be subject to the obligations set out in this paragraph, for as long as these arrangements remain in force and provided that they are not substantially modified.’
30

In those circumstances, the Rechtbank Den Haag, zittingsplaats Haarlem (District Court of The Hague, sitting in Haarlem) decided to stay the proceedings and to refer the following questions, worded identically in each of the joined cases, to the Court of Justice for a preliminary ruling: ‘(1) In the case of an appeal as referred to in Article 32(3) of the Visa Code against a final decision refusing a visa on the ground referred to in Article 32(1)(a)(vi) of the Visa Code, can it be said that there is an effective remedy within the meaning of Article 47 of the [Charter] under the following circumstances: – where, in its reasons for the decision, the Member State merely stated: “you are regarded by one or more Member States as a threat to public policy, internal security, public health as defined in Article 2(19) or 2(21) of the Schengen Borders Code, or to the international relations of one or more Member States”; – where, in the decision or in the appeal, the Member State does not state which specific ground or grounds of those four grounds set out in Article 32(1)(a)(vi) of the Visa Code is being invoked; – where, in the appeal, the Member State does not provide any further substantive information or substantiation of the ground or grounds on which the objection of the other Member State (or Member States) is based? (2) In the circumstances outlined in [the first question], can there be said to be good administration within the meaning of Article 41 of the Charter, in particular as far as the duty of the public administration to give reasons for its decisions is concerned? (3) (a) Should [the first and second questions] be answered differently if, in the final decision on the visa, the Member State refers to an actual and sufficiently clearly specified possibility of appeal in the other Member State against the specifically named authority responsible in that other Member State (or Member States) that has (or have) raised the objection referred to in Article 32(1)(a)(vi) of the Visa Code, in which that ground for refusal can be examined? (b) Does an affirmative answer to [the first question] in connection with [part (a) of the third question] require that the decision in the appeal in and against the Member State that made the final decision be suspended until the applicant has had the opportunity to make use of the option of appealing in the other Member State (or Member States) and, if the applicant does make use of that option, until the (final) decision on that appeal has been obtained? (4) For the purpose of answering the questions, does it matter whether (the authority in) the Member State (or Member States) that has (or have) objected to the issuing of the visa can be given the opportunity, in the appeal against the final decision on the visa, to act as second defendant and on that basis to be given the opportunity to introduce a substantiation of the ground or grounds on which the objection is based?’