ddrg/super_eurlex huggingface dataset:
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Freedom of movement for persons – Workers – Equal treatment

(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC))

Summary

Article 48 of the Treaty (now, after amendment, Article 39 EC) is to be interpreted as meaning that, where national legislation concerning the allocation of parental benefits applies, which requires a worker to have been affiliated to a sickness insurance scheme for a certain minimum period for the calculation of the amount of those benefits, the period during which a worker was affiliated to the Joint Sickness Insurance Scheme of the European Communities must be taken into account.

(see para. 28, operative part)
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Freedom to provide services – Restrictions – Posting of workers who are nationals of non-member States by an undertaking in another Member State

(Art. 49 EC)

Summary

A Member State which does not confine itself to making the posting of workers who are nationals of non‑member States for the purpose of the provision of services in its territory subject to a simple prior declaration by the undertaking established in another Member State which intends to post such workers, and which requires that they have been employed for at least a year by that undertaking fails to fulfil its obligations under Article 49 EC.

(see para. 64, operative part)
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1. 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

(Council Regulation No 40/94, Art. 8(1)(b))

2. Appeals – Grounds of appeal – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of matters of fact submitted to the Court of First Instance – Excluded unless the sense of the evidence has been distorted

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

Summary

1. In assessing the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark between two signs which are not visually or conceptually similar but which are phonetically similar in certain countries, it is conceivable that the marks’ phonetic similarity alone could create a likelihood of confusion within the meaning of that provision. However, the existence of such a likelihood must be established as part of a global assessment as regards the conceptual, visual and aural similarities of the signs at issue. In that regard, the assessment of any aural similarity is but one of the relevant factors for the purpose of that global assessment, so that there is not necessarily a likelihood of confusion each time that mere phonetic similarity between two signs is established.

Moreover, that global assessment means that conceptual and visual differences between two signs may counteract aural similarities between them, provided that at least one of those signs has, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately.

(see paras 19-22, 35)

2. It is clear from the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.

(see paras 28, 41)
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1. Free movement of goods – Exceptions – Existence of directives on the approximation of laws

(Arts 28 EC and 30 EC; Council Directive 89/104, Art. 3)

2. Approximation of laws – Trade marks – Directive 89/104 – Registration of a trade mark refused or trade mark declared invalid

(Council Directive 89/104, Art. 3(1)(b) and (c))

3. Free movement of goods – Industrial and commercial property – Trade mark right

(Arts 28 EC and 30 EC)

Summary

1. In a field which has been exhaustively harmonised at Community level, a national measure must be assessed in the light of the provisions of that harmonising measure and not of those of primary law. Consequently, it is Directive 89/104 to approximate the laws of the Member States relating to trade marks, and in particular Article 3 thereof, on the absolute grounds for refusal or invalidity of registration, and not Articles 28 EC and 30 EC, which must be assessed to determine whether Community law precludes the registration of a national trade mark.

(see paras 20-21)

2. Article 3(1)(b) and (c) of Directive 89/104 to approximate the laws of the Member States relating to trade marks does not preclude the registration in a Member State, as a national trade mark, of a term borrowed from the language of another Member State in which it is devoid of distinctive character or descriptive of the goods or services in respect of which registration is sought, unless the relevant parties in the Member State in which registration is sought are capable of identifying the meaning of the term.

(see paras 26, 32, operative part)

3. In the context of the application of the principle of the free movement of goods, the Treaty does not affect the existence of rights recognised by the legislation of a Member State in matters of intellectual property, but only restricts, depending on the circumstances, the exercise of those rights. The principle of the free movement of goods therefore does not prohibit a Member State from registering as a national trade mark a sign which, in the language of another Member State, is devoid of distinctive character or is descriptive of the goods or services covered by the application for registration.

(see paras 28-30)
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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13B(d)(6))

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13B(d)(6))

Summary

1. The concept of ‘management’ of special investment funds in Article 13B(d)(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes has its own independent meaning in Community law whose content the Member States may not alter.

While the English and Dutch versions of that provision are ambiguous as to whether it confers on the Member States the task of defining both the meaning of ‘special investment funds’ and that of ‘management’ of those funds, it is clear, particularly from the Danish, German, French and Italian versions, that that provision refers to the Member States’ definitions only as regards the first of those meanings. The limited scope of that reference to national law, as is clear from the versions mentioned, is supported by the context in which the expression occurs, by the scheme of the Sixth Directive and by the purpose of avoiding divergences in the application of the value-added tax system from one Member State to another.

(see paras 40-43, operative part 1)

2. Article 13B(d)(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that the concept of ‘management of special investment funds’ referred to in that provision covers the services performed by a third‑party manager in respect of the administrative management of the funds, if, viewed broadly, they form a distinct whole and are specific to, and essential for, the management of those funds.

On the other hand, that provision does not cover the functions of depositary, such as those set out in Articles 7(1) and (3) and 14(1) and (3) of Directive 85/611 on the coordination of the laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities. Those functions do not fall under the management of undertakings for collective investment but under the control and supervision of their activities, the aim being to ensure that undertakings for collective investment are managed in accordance with the law.

However, since to be regarded as exempt transactions for the purposes of Article 13B(d)(6) of the Sixth Directive, services performed by a third-party manager in respect of the administrative management of the funds must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in that same point 6, mere material or technical supplies, such as the making available of a system of information technology, are not covered by Article 13B(d)(6) of that directive.

(see paras 65, 70-71, 74, operative part 2)
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Agriculture – Common organisation of the markets – Export refunds

(Commission Regulation No 3665/87, Art. 11(1), subpara. 1, and (3), subpara. 1)

Summary

The first subparagraph of Article 11(1) of Regulation (EEC) No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2945/94, must be interpreted as meaning that, in an appeal against a decision imposing a sanction on the basis of that provision, the national authorities and courts are entitled to examine whether the exporter requested a refund in excess of that applicable within the meaning of that provision, notwithstanding the fact that a reimbursement decision provided for in the first subparagraph of Article 11(3) of that regulation has become final before the decision imposing a sanction was issued.

The principles of legality and legal certainty require that, in the context of a review of the legality of a decision imposing a sanction adopted under that provision, the national authorities and courts are able to examine whether the exporter has in fact requested a refund in excess of that applicable within the meaning of that provision, regardless of the fact that a prior reimbursement decision issued on the basis of the first subparagraph of Article 11(3) has become final.

(see paras 18-19, operative part)
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1. Approximation of laws – Directive 95/46 – Scope

(European Parliament and Council Directive 95/46, Art. 3(2); Commission Decision 2004/535)

2. International agreements – Conclusion – EEC-United States Agreement on the processing and transfer of Passenger Name Records of air passengers to the United States Bureau of Customs and Border Protection

(Art. 95 EC; European Parliament and Council Directive 95/46, Arts 3(2) and 25; Council Decision 2004/496)

Summary

1. Decision 2004/535 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection relates to personal-data processing operations concerning public security and the activities of the State in areas of criminal law, operations which are excluded from the scope of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, by virtue of the first indent of Article 3(2) of that directive.

The fact that the personal data are collected by private operators for commercial purposes and it is they who arrange for their transfer to a third country does not alter such a conclusion, inasmuch as their transfer falls within a framework established by the public authorities that relates to public security, and is not necessary for the supply of services by those operators.

(see paras 56-59)

2. Decision 2004/496 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR (Passenger Name Record) data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, cannot have been validly adopted on the basis of Article 95 EC, read in conjunction with Article 25 of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

The agreement relates to data processing operations which, since they concern public security and the activities of the State in areas of criminal law, are excluded from the scope of Directive 95/46 by virtue of the first indent of Article 3(2) of that directive.

(see paras 67-69)
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Social policy – Protection of the safety and health of workers – Directive 93/104 concerning certain aspects of the organisation of working time

(Council Directive 93/104, Arts 3, 5 and 17(1))

Summary

A Member State has failed to fulfil its obligations under Article 17(1), (3) and (5) of Directive 93/104 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34, when it applies to workers whose working time is partially not measured or predetermined or can be determined partially by the worker himself the derogation provided for in Article 17(1) and when it fails to adopt the measures necessary to implement the rights of workers to daily and weekly rest.

In this latter respect, in order to ensure that the rights conferred on workers by Directive 93/104 are fully effective, Member States are under an obligation to guarantee that the right to benefit from effective rest is observed. A Member State which, in the national measure implementing that directive, provides that workers are entitled to certain rights to rest and which, in the guidelines for employers and workers on the implementation of those rights, indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights, does not guarantee compliance with either the minimum requirements laid down by Articles 3 and 5 of that directive or its essential objective. By letting it be understood that, while employers cannot prevent the minimum rest periods from being taken by the workers, they are under no obligation to ensure that the latter are actually able to exercise such a right, the guidelines are clearly liable to render the rights enshrined in Articles 3 and 5 of that directive meaningless and are incompatible with the objective of that directive, in which minimum rest periods are considered to be essential for the protection of workers’ health and safety.

(see paras 40, 42, 44, 47, operative part)
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1. Member States – Obligations – Failure to fulfil obligations – National system pleaded as justification – Not permissible

(Art. 226 EC)

2. Actions for failure to fulfil obligations – Judgment of the Court establishing such failure – Breach of the obligation to comply with the judgment

(Art. 228(2) EC)

Summary

1. A Member State cannot plead provisions, practices or situations prevailing in its domestic legal order, such as a system for regulating employment relationships based on collective agreement, to justify failure to observe obligations arising under Community law.

(see paras 25-26)

2. In an action brought by the Commission for a declaration that, by failing to take all the measures necessary to comply with a judgment declaring it to be in breach of its obligations, the Member State concerned has failed to fulfil its obligations under Article 228 EC, it must be ascertained whether the alleged breach has continued up to the Court’s examination of the facts.

In that regard, it is for the Commission to provide the Court with the information necessary to determine the extent to which a Member State has complied with a judgment declaring it to be in breach of its obligations. Moreover, where the Commission has adduced sufficient evidence to show that the breach of obligations has persisted, it is for the Member State concerned to challenge in substance and in detail the information produced and its consequences.

(see paras 33, 41, 47, operative part)
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Free movement of capital – Restrictions

(Art. 56(1) EC)

Summary

A Member State which holds special shares in companies, reserving to itself special rights of prior approval of certain very important management decisions by the organs of those companies, concerning both their business and their very structure, which are not limited to cases where the intervention of that State is necessary for overriding reasons in the general interest, fails to fulfil its obligations under Article 56(1) EC.

Since the introduction of those special shares into the statutes of the companies in question is the result of decisions taken by the State concerned, those shares must be regarded as State measures.

Moreover, those special shares are likely to deter investors of other Member States from investing in the capital of those companies.

By making decisions of such importance subject to the prior approval of the Member State concerned and thereby limiting the possibility of other shareholders participating effectively in the management of the companies concerned, those special shares may have a negative influence on direct investments.

Similarly, those special shares may have a deterrent effect on portfolio investments. A possible refusal by the Member State concerned to approve an important decision, proposed by the organs of the company concerned as being in the company’s interests, would be capable of depressing the (stock market) value of the shares of that company and thus reduces the attractiveness of an investment in such shares.

(see paras 19, 22-24, 26-27, 44, operative part)
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Free movement of goods – Quantitative restrictions – Measures having equivalent effect

(Art. 28 EC)

Summary

Article 28 EC precludes national legislation which makes the sale of products produced using the ‘bake‑off’ method (quick thawing followed by re-heating or baking, at the sales outlets, of fully or partially pre-baked and frozen products) subject to the same requirements as those applicable to the full manufacturing and marketing procedure for traditional bread and bakery products.

(see para. 28, operative part)
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Freedom of movement for workers

–

Workers

–

Equal treatment (Art. 39 EC; Council Regulation No 1612/68, Art. 7) (see paras 14-19, operative part

)

Subject of the case

Re:

Failure by a Member State to fulfil obligations – Article 39 EC and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition, 1968 (II), p. 475) – Access to the Spanish civil service – Obligation to recognise, for financial purposes, periods of employment by Community citizens in the civil service of another Member State

Operative part

Operative part:

The Court:

1. Declares that, by failing to adopt legislative provisions which expressly provide, in respect of the Spanish civil service, for account to be taken, for financial purposes, of previous periods of employment in the public service of another Member State, the Kingdom of Spain has failed to fulfil its obligations under Article 39 EC and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community;

2. Orders the Kingdom of Spain to pay the costs.
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1. Actions for failure to fulfil obligations – Application initiating proceedings – Examination of claims not covered by the application – Not permissible

(Art. 226 EC)

2. Transport – Maritime transport – Freedom to provide services – Maritime cabotage

(Council Regulation No 3577/92, Art. 2(1))

Summary

1. It is not for the Court to give a ruling that goes beyond the grounds for complaint and form of order sought in the Commission’s application under Article 226 EC.

(see para. 27)

2. Despite the non-exhaustive nature of the list of ‘maritime cabotage services’ given in Article 2(1) of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States, it follows from that provision, construed as a whole, that the services falling within its scope are, firstly, normally provided for remuneration and, secondly, as the essential characteristics of the examples of maritime cabotage in that article illustrate, serve the purpose of transporting passengers or goods by sea between two places in the territory of a single Member State.

The nature and characteristics of towage are different from those of cabotage, as defined in Article 2(1) of Regulation No 3577/92. Although towage is a service normally provided for remuneration, it does not in principle entail a straightforward carriage of goods or passengers by sea, but rather involves assisting the movement of a vessel, rig, platform or buoy. In those conditions, to infer from the term ‘in particular’ in Article 2(1) of that regulation that it can extend the scope of that provision to any service related, incidental or ancillary to the provision of maritime transport services within the Member States, whether or not that service has the essential characteristics of maritime cabotage as expressly defined therein, would be contrary not only to the purpose of that regulation, but also to legal certainty as to the scope of that regulation.

(see paras 28-29, 31-32)
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Freedom of movement for persons – Freedom of establishment – Tax legislation

(EC Treaty, Arts 52 (now, after amendment, Art. 43 EC) and 58 (now Art. 48 EC))

Summary

Article 52 of the Treaty (now, after amendment, Article 43 EC) and Article 58 of the Treaty (now Article 48 EC) preclude legislation of a Member State which restricts the right of a parent company which is resident in that State to deduct for tax purposes losses incurred by that company in respect of write-downs to the book value of its shareholdings in subsidiaries established in other Member States, in which it holds shares which give it a definite influence over the decisions of those foreign subsidiaries and allow it to determine their activities, whereas such a restriction does not exist in relation to shareholdings in resident subsidiaries.

Such a difference in tax treatment between resident parent companies according to whether or not they have subsidiaries abroad cannot be justified merely by the fact that they have decided to carry on economic activities in another Member State, in which the State concerned cannot exercise its taxing powers. Accordingly, an argument based on the balanced allocation of the power to impose taxes between the Member States cannot in itself justify a Member State systematically refusing to grant a tax advantage to a resident parent company, on the ground that that company has developed a cross-border economic activity which does not have the immediate result of generating tax revenues for that State.

Moreover, where such a provision does not have the specific object of excluding from the benefit of a tax advantage purely artificial arrangements designed to circumvent national tax law, but is targeted, generally, at any situation in which subsidiaries are established, for any reason, in another Member State, it cannot, without going beyond what is necessary to attain the objective which it allegedly seeks to achieve, be regarded as justified by the danger of tax avoidance. The formation of a company outside that Member State does not, of itself, imply the existence of tax avoidance, since the company in question is, in any event, subject to the tax legislation of the State in which it is established.

(see paras 43, 52, 70, operative part)