ddrg/super_eurlex huggingface dataset:
37

In those circumstances the Audiencia Provincial de Barcelona (Provincial Court, Barcelona, Spain) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) How is the term “habitual residence” in Article 3 of Regulation [No 2201/2003] and Article 3 of Regulation [No 4/2009] to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union? (2) If, for the purposes of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003? (3) In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of Regulation No 2201/2003? (4) If it is established that the parents and children are not habitually resident in a Member State, given that, under Regulation No 2201/2003 there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003? (5) If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of Regulation No 4/2009 to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or conducted or would be impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State [of the court seised]? (6) In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the [Charter] if no Member State is considered to have jurisdiction under the provisions of the Regulations?’
25

It should be noted at the outset that Article 26(1) of the VAT Directive treats certain transactions for which no consideration is actually received by the taxable person as a supply of services for consideration. The purpose of that provision is to ensure equal treatment as between a taxable person who applies goods or services for his or her own private use or for that of his or her staff, on the one hand, and a final consumer who acquires goods or services of the same type, on the other. In pursuit of that objective, Article 26(1)(a) of that directive prevents a taxable person who has been able to deduct VAT on the purchase of goods used for his or her business from escaping payment of that tax when he or she applies those goods from his or her business for his or her own private use or that of his or her staff and from thereby enjoying advantages to which he or she is not entitled by comparison with an ordinary consumer who buys goods and pays VAT on them. Similarly, Article 26(1)(b) of that directive prevents a taxable person or members of his or her staff from obtaining, free of tax, services provided by the taxable person for which a private individual would have to have paid VAT (see, to that effect, judgment of 20 January 2005, Hotel Scandic Gåsabäck, C‑412/03, EU:C:2005:47, paragraph 23 and the case-law cited).
35

It maintains, in that regard, that it is clear from the case-law of the Court, in particular from paragraph 50 of the judgment of 23 April 2015, Franzen and Others (C‑382/13, EU:C:2015:261) – delivered in the context of Regulation (EEC) No 1408/71 of 14 June 1971 of the Council on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1), which would be applicable in the context of Regulation No 883/2004 – that persons normally pursuing their occupational activity in a Member State fall within the scope of Article 11(3)(a) of Regulation No 883/2004 for as long as they have not definitively or temporarily ceased that activity and that they remain subject to that legislation also on the days when they do not actually pursue that activity. Thus, the fact that there is an employment relationship is not decisive in that regard. The referring court does not, therefore, exclude the possibility that the intervening periods between the temporary work assignments of X and Y, in particular of X, do not actually constitute a cessation of their activity as an employed person in the Netherlands. It raises the question of the relevant factors which must be taken into account in that regard, in particular as to the period from which it must be considered that a person who, like X or Y, no longer has an employment relationship, has ceased working in the Member State of employment.
Competition – Administrative procedure – Examination of complaints – Determination of priorities by the Commission – Commission's duty to adopt a decision as to the existence of an infringement – None – Account to be taken of the EU interest in investigating a case – Discretionary power of the Commission – Criteria for assessment – Judicial review – Limits

(Arts 101, 102 and 105(1) TFEU; Council Regulation No 1/2003; Commission Regulation No 773/2004, Art. 7)

(see paras 48-51, 56, 63-67, 71-75, 82, 83, 159, 160, 166, 167)
64

As the European Commission states in its written observations, it should be noted that, in view of the aim of the European arrest warrant mechanism – which, in accordance with Article 1(1) of Framework Decision 2002/584, is to enable the arrest and surrender of a requested person, in the light of the objective pursued by that framework decision, so that the crime committed does not go unpunished and that that person is prosecuted or serves the custodial sentence ordered against him or her (judgment of 13 January 2021, MM, C‑414/20 PPU, EU:C:2021:4, paragraph 76 and the case-law cited) – an accused person subject to a European arrest warrant who is in a Member State different from the Member State in which he or she has allegedly committed a criminal offence is not in the same situation as an accused person who has remained in the latter Member State. In order to prevent the risk of impunity, the person who is the subject of the European arrest warrant must, before a criminal prosecution is conducted against him or her by the competent authorities of the issuing Member State, be, in principle, in accordance with the provisions of Framework Decision 2002/584, surrendered to those authorities. It is only once that person has been surrendered to those authorities that his or her situation, as regards the right to information in criminal proceedings brought against him or her in the issuing Member State in which the offence was allegedly committed, will be comparable to that of the person who has remained in that Member State.
46

Having regard to the foregoing, the answer to the questions referred is that Article 8(1) of Directive 2016/343 and Article 3(1) of Directive 2013/48 must be interpreted as meaning that, where, in order to ensure that the right of the accused person to be present at his or her trial and his or her right of access to a lawyer are safeguarded, the national court carries out an additional examination of an incriminating witness since, for reasons beyond their control, the accused person and his or her lawyer could not be present at the previous examination of that witness, it is sufficient that the accused person and his or her lawyer be able freely to question that witness, providing, prior to that additional examination, the accused person and his or her lawyer were sent a copy of the minutes of the previous examination of that witness. In those circumstances, it is not necessary to repeat in its entirety, thereby invalidating the procedural steps taken during that examination, the examination which took place in the absence of the accused person and his or her lawyer.
6

Paragraph 68 of the Väljasõidukohustuse ja sissesõidukeelu seadus (Law on forced departure and the prohibition on entry) of 21 October 1998 (RT I 1998, 98, 1575), in the version applicable to the dispute in the main proceedings (‘the VSS’), entitled ‘Risk of Absconding Foreign National’, reads as follows: ‘The adoption of an order to leave the country or the detention of a foreign national gives rise to an assessment of the risk of him or her absconding. A foreign national presents a risk of absconding where: (1) he or she did not leave Estonia or a Member State party to the Schengen Agreement after the expiry of the period for voluntary departure laid down in the order to leave the territory; (2) he or she has provided false information or falsified documents when applying for legal residence in Estonia, applying for extension of legal residence, applying for Estonian citizenship, applying for international protection or applying for identity documents; (3) there is a legitimate doubt as to his or her identity or nationality; (4) he or she has repeatedly committed intentional offences or has committed a criminal offence for which he or she has been sentenced to a term of imprisonment; (5) he or she has failed to comply with the surveillance measures taken against him or her in order to ensure compliance with the order to leave the territory; (6) he or she has informed the [PPA] or the Kaitsepolitseiamet (Internal Security Agency, Estonia) of his or her intention not to comply with the order to leave the territory, or the administrative authority reaches that conclusion in view of the foreign national’s attitude and behaviour; (7) he or she entered Estonia during the period of validity of the entry ban against him or her; (8) he or she is detained for illegally crossing the external border of Estonia and has not been granted permission or the right to stay in Estonia; (9) he or she left the designated place of residence or another Member State of the Schengen Agreement without authorisation; (10) the order to leave the territory issued to the foreign national becomes enforceable by virtue of a court decision.’
12

Article 2(2) of that legislative decree describes the duties of police commissioner as follows: ‘Persons in the career bracket of officers up to the grade of chief commissioner shall have the grades of public security officer and judicial police officer. In relation to the grades which they hold, they shall perform the duties inherent in institutional tasks of the State Police and the Public Security Administration, with independent decision-making responsibility and corresponding professional input. They shall also provide for the training of employees and perform, in relation to their proficiency, duties relating to education and training of State Police personnel. Those personnel shall work directly with the holders of higher grades in the same career bracket and substitute for them in managing offices and departments in the event of absence or impediment. If they are holders of the relevant office, and when substituting for the director of detached public security offices, chief commissioners shall also perform the functions of a local public security authority. Those personnel shall also carry out, with full responsibility for the directives issued and the results obtained, duties relating to the management of offices and departments not reserved to personnel of higher grades, and duties relating to the direction and coordination of several organisational units in the office to which they are assigned. …’
107

In that regard, it should be noted that, whilst it is true that, before retirement, which is an uncertain future event, pension rights are virtual rights that take shape day by day, the fact remains that an administrative act from which it follows that a member of staff cannot benefit from more favourable provisions as regards the annual rate of acquisition of those rights and his or her normal retirement age affects the legal position of the person concerned immediately and directly, even if that act is to be implemented only subsequently. If the position were otherwise, the appellant would be able to ascertain his rights only at the time of retirement and would, until that time, be placed in a state of uncertainty as regards not only his financial situation, but also the age at which he may apply for retirement, which does not allow him to make immediate appropriate personal arrangements to ensure his future as he envisages. It follows that the appellant has a sufficiently clear legitimate, vested and present interest in having an uncertain element such as his retirement age and the annual rate of accrual of pension rights established as soon as possible by a court of law (see, to that effect, judgment of 1 February 1979, Deshormes v Commission, 17/78, EU:C:1979:24, paragraphs 10 to 12).
Keywords

Summary



Keywords

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PROCEEDINGS - UNDERTAKING - TRADING UNDERTAKING - RIGHT OF ACTION

Summary

ARTICLE 80 OF THE TREATY PROVIDES THAT " ' UNDERTAKING ' MEANS ANY UNDERTAKING ENGAGED IN PRODUCTION IN THE COAL OR THE STEEL INDUSTRY ... AND ALSO, FOR THE PURPOSES OF ARTICLES 65 AND 66 AND OF INFORMATION REQUIRED FOR THEIR APPLICATION AND PROCEEDINGS IN CONNEXION WITH THEM, ANY UNDERTAKING OR AGENCY REGULARLY ENGAGED IN DISTRIBUTION OTHER THAN SALE TO DOMESTIC CONSUMERS OR SMALL CRAFT INDUSTRIES ".

THE WORDING OF ARTICLE 80 COVERS NOT ONLY PROCEEDINGS IN WHICH A DIRECT APPLICATION OF ARTICLES 65 AND 66 TO AGREEMENTS AND CONCENTRATIONS OF DISTRIBUTING UNDERTAKINGS IS IN QUESTION, BUT ALSO THOSE WHICH CONCERN THE APPLICATION OF THOSE ARTICLES IN THE FIELD OF DISTRIBUTING UNDERTAKINGS . THE GENERAL CONDITIONS OF ADMISSIBILITY SET OUT IN THE SECOND PARAGRAPH OF ARTICLE 33, WHICH DIFFER ACCORDING TO THE NATURE OF THE CONTESTED DECISIONS MUST, HOWEVER, BE SATISFIED .

( TREATY, ARTICLES 33, 65, 66 AND 80 ).
Order of the Court of 3 December 1962. - Commission of the European Economic Community v Grand Duchy of Luxembourg and Kingdom of Belgium. - Joined cases 2/62 and 3/62.



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IN JOINED CASES 2 AND 3/62

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY

V

1 . GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG

AND

2 . GOVERNMENT OF THE KINGDOM OF BELGIUM

Subject of the case

THE COURT

COMPOSED OF : A . M . DONNER, PRESIDENT, L . DELVAUX AND R . ROSSI ( PRESIDENTS OF CHAMBERS ), O . RIESE, CH . L . HAMMES, A . TRABUCCHI AND R . LECOURT ( RAPPORTEUR ), JUDGES,

ADVOCATE GENERAL : K . ROEMER

REGISTRAR : A . VAN HOUTTE

Grounds

WHEREAS, WITH THE OBJECT OF INVOKING THE ASSOCIATION AGREEMENT BETWEEN THE EEC AND GREECE AND ALSO THE PREAMBLE TO A BELGIAN LAW OF 11 SEPTEMBER 1962, THE GOVERNMENT OF THE KINGDOM OF BELGIUM, BY AN APPLICATION DATED 10 NOVEMBER 1962, HAS MADE A REQUEST FOR THE REOPENING OF THE ORAL PROCEDURE IN JOINED CASES 2 AND 3/62 OF 21 FEBRUARY 1962;

WHEREAS THE COURT CANNOT FIND IN THE MATTERS RAISED ANYTHING OF RELEVANCE WHICH WOULD JUSTIFY THE USE OF ITS POWERS UNDER ARTICLE 61 OF THE RULES OF PROCEDURE TO ORDER THE REOPENING OF THE ORAL PROCEDURE;

WHEREAS THE ASSOCIATION AGREEMENT BETWEEN THE EEC AND GREECE WAS FINALLY RATIFIED ( BY THE EXCHANGE OF INSTRUMENTS OF RATIFICATION ) BY THE GOVERNMENTS OF THE MEMBER STATES OF THE EEC, INCLUDING THE BELGIAN GOVERNMENT, ON 24 AUGUST 1962, AS REPORTED IN THE 'MONITEUR BELGE' OF 31 OCTOBER 1962, P . 9682;

WHEREAS THE BELGIAN LAW OF 11 SEPTEMBER 1962 RECEIVED THE ASSENT OF THE KING OF THE BELGIANS ON THE SAME DATE AFTER IT HAD BEEN PUBLICLY DEBATED AND ADOPTED AT SITTINGS OF THE CHAMBER ON 12 AND 19 JULY 1962 AND OF THE SENATE ON 25 JULY 1962, AS REPORTED IN THE 'MONITEUR BELGE' ON 27 OCTOBER 1962, P . 9491;

WHEREAS THE SAID MATTERS WERE THUS KNOWN BEFORE 19 OCTOBER 1962, THE DATE OF THE ORAL PROCEDURE, TO THE PARTY MAKING THE APPLICATION FOR THE REOPENING OF THE SAID PROCEDURE AND WHICH THEREFORE HAD THE TIME AND OPPORTUNITY TO ARGUE THEM AT THE HEARING;

WHEREAS THE SAID MATTERS WERE THEREFORE FOR APPLYING ARTICLE 61 OF THE RULES OF PROCEDURE;

Operative part

THE COURT

HEREBY

1 . DECLARES THAT THERE ARE NO GROUNDS FOR ORDERING THE REOPENING OF THE ORAL PROCEDURE;

2 . ORDERS THE PARTY MAKING THE APPLICATION OF 10 NOVEMBER 1962 ON THE PROCEDURAL ISSUE TO PAY THE COSTS INVOLVED IN THAT APPLICATION .
Order of the President of the Court of 7 August 1964. - Fulvio Fonzi v Commission of the EAEC. - Case 30-64 R.



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German edition Page 00698

Italian edition Page 00596

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IN CASE 30/64 R

FULVIO FONZI, ENGINEER, A SCIENTIFIC OFFICIAL OF THE EUROPEAN ATOMIC ENERGY COMMUNITY RESIDING AT SESTO CALENDE ( VARESE, ITALY ), REPRESENTED AND ASSISTED BY MARIO GIULIANO, PROFESSOR IN THE FACULTY OF LAW OF THE UNIVERSITY OF MILAN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMISSION, REPRESENTED BY ITS LEGAL ADVISER, M . PRELLE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION FOR THE SUSPENSION OF THE OPERATION OF THE DECISION TAKEN BY THE COMMISSION IN RESPECT OF THE APPLICANT ON 24 JUNE 1964 CALLING ON HIM TO GO IMMEDIATELY TO BRUSSELS,

Grounds

WHEREAS IT APPEARS FROM THE OBSERVATIONS OF THE DEFENDANT THAT MR FONZI ACTUALLY WENT TO BRUSSELS ON 22 JULY 1964, AND FROM THERE TO JUELICH, WHERE HE HAD THE MEETING REGARDED AS NECESSARY BY THE COMMISION;

WHEREAS THE APPLICANT HAS NOT DISPUTED THAT THIS IS TRUE;

WHEREAS HIS CONDUCT AMOUNTS TO THE EXECUTION OF THE DECISION REFERRED TO IN HIS APPLICATION FOR SUSPENSION;

WHEREAS THE SAID APPLICATION IS THEREFORE OUT OF TIME;

WHEREAS SINCE FROM THE BEGINNING IT HAS BEEN LACKING IN SUBJECT MATTER, THE APPLICATION FOR SUSPENSION MUST BE DECLARED INADMISSIBLE;

Operative part

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

HEREBY ORDERS :

1 . THE APPLICATION IS INADMISSIBLE;

2 . THE COSTS ARE RESERVED .
Order of the Court of 22 March 1976. - Walter J. Riemer v Hauptzollamt Lübeck-West. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Case 120-75.



European Court reports 1976 Page 00423



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Parties

IN CASE 120/75

( REFERENCE BY THE FINANZGERICHT HAMBURG FOR A PRELIMINARY RULING IN THE ACTION BETWEEN )

FIRMA WALTER J . RIEMER , HAMBURG ,

AND

HAUPTZOLLAMT LUBECK-WEST ,

Grounds

HAVING REGARD TO ARTICLE 95 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT ;

WHEREAS ARTICLE 95 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT IS APPLICABLE ;

WHEREAS NO MEMBER STATE HAS TAKEN THE OPPORTUNITY TO SUBMIT TO THE COURT A STATEMENT OF CASE OR WRITTEN OBSERVATIONS IN PURSUANCE OF ARTICLE 20 OF THE STATUTE OF THE COURT ;

WHEREAS IN ITS STATEMENT DATED 22 MARCH 1976 THE COMMISSION DID NOT EXPRESSLY REQUEST THAT THE CASE BE DECIDED IN PLENARY SESSION ;

UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR ;

UPON HEARING THE VIEWS OF THE ADVOCATE-GENERAL ;

Operative part

THE COURT

COMPOSED OF : R . LECOURT , PRESIDENT , H . KUTSCHER AND A . O ' KEEFFE , PRESIDENTS OF CHAMBERS , A . M . DONNER , J . MERTENS DE WILMARS , P . PESCATORE , M . SORENSEN , LORD MACKENZIE STUART AND H . CAPOTORTI , JUDGES ,

ADVOCATE-GENERAL : A . TRABUCCHI

REGISTRAR : A . VAN HOUTTE

HEREBY ORDERS :

CASE 120/75 IS ASSIGNED TO THE SECOND CHAMBERS .
Order of the President of the First Chamber of 15 October 1976. - Joëlle de Lacroix v Court of Justice of the European Communities. - Case 91-76 R.



European Court reports 1976 Page 01561



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IN CASE 91/76 R ,

JOELLE DE LACROIX , REPRESENTED BY NICOLA CATALANO , ADVOCATE , OF ROME , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY ,

APPLICANT ,

V COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , REPRESENTED BY A . VAN HOUTTE , ACTING AS AGENT ,

DEFENDANT ,

Grounds

1 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE ANY SUSPENSION OF OPERATION IS SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND OF GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH A MEASURE .

2 AS TO THE NATURE OF THE MEASURE APPLIED FOR , PROVISIONAL ADMISSION TO THE TESTS IN QUESTION WOULD AMOUNT NOT TO A SUSPENSION OF THE OPERATION OF THE CONTESTED MEASURE BUT TO A COMPLETE REVERSAL , EVEN THOUGH ONLY PROVISIONAL , OF SUCH A NATURE AS TO DENUDE THE MAIN ACTION OF ITS PURPOSE .

3 THEREFORE THE COURT HAS JURISDICTION ONLY TO SUSPEND , IF NECESSARY , THE ENGAGEMENT PROCEDURE IN PROGRESS .

4 SUCH A SUSPENSION WOULD INVOLVE SERIOUS DIFFICULTIES FOR THE DEFENDANT , SINCE THE PROCEDURE , AS SET FORTH IN THE DEFENDANT ' S UNDISPUTED STATEMENT , IS AIMED AT TEMPORARILY FILLING AS SOON AS POSSIBLE THREE VACANT POSTS IN A SECTION WHICH COMPRISES EIGHT POSTS IN ALL .

5 FURTHERMORE ANY SUCH SUSPENSION WOULD ALSO INVOLVE SERIOUS INCONVENIENCE FOR THE OTHER CANDIDATES .

6 IN THESE CIRCUMSTANCES , IT IS NECESSARY , UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , TO EXAMINE ' THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE . . . MEASURES ' APPLIED FOR .

7 TO THE EXTENT TO WHICH THEY WERE SET OUT AT THE HEARING , THE GROUNDS ALLEGED RAISE TWO QUESTIONS , FIRST WHETHER ARTICLE 5 OF ANNEX III TO THE STAFF REGULATIONS OF OFFICIALS APPLIES , IF ONLY BY ANALOGY , TO THE PROCEDURE IN DISPUTE , AND SECONDLY WHETHER THAT PROVISION REQUIRES THAT THE DECISIONS REFERRED TO IN THE FOURTH PARAGRAPH - WHICH THE CONTESTED DECISION MIGHT BE REGARDED AS RESEMBLING - SHOULD BE ACCOMPANIED BY A STATEMENT OF THE REASONS ON WHICH THEY ARE BASED .

8 IN VIEW FIRST OF THE DISADVANTAGES OF A SUSPENSION AND SECONDLY OF THE QUESTIONABLE NATURE OF THE GROUNDS ALLEGED , THERE IS NO CASE FOR SUSPENDING THE PROCEDURE .

9 THEREFORE THE APPLICATION MUST BE DISMISSED .

Decision on costs

COSTS

10 IN THE CIRCUMSTANCES COSTS SHOULD BE RESERVED .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

BY WAY OF INTERLOCUTORY DECISION , HEREBY ORDERS :

1 . THE APPLICATION IS DISMISSED ;

2 . COSTS ARE RESERVED .