ddrg/super_eurlex huggingface dataset:
Article 1 of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48, must be interpreted as meaning that a provision of national law that requires a licence to operate a gaming casino in order to organise roulette games, card games dice games and gaming on machines does not fall within the scope of the concept of a ‘technical regulation’, within the meaning of that directive, subject to obligatory notification under Article 8(1) of that directive, the penalty for failure to fulfil that obligation being that such a regulation is inapplicable.

First, such a provision does not constitute a ‘technical specification’, within the meaning of Article 1(3) of Directive 98/34, since it does not refer to a product or its packaging as such and does not lay down one of the required characteristics of a product. Second, that provision cannot be placed in the category of ‘rules on [information society] services’, within the meaning of Article 1(5) of Directive 98/34, since it does not relate to an ‘Information society service’, within the meaning of Article 1(2) of that directive. Third, that provision cannot be regarded as falling within the category of ‘other requirements’, within the meaning of Article 1(4) of Directive 98/34, since the authorisation required by that provision of national law for the organisation of games of chance constitutes a condition imposed with respect to the activity of organising such games, and not with respect to the products concerned by prohibiting their use other than in casinos. Last, such a provision cannot be considered to be a technical regulation belonging to the category of prohibitions, since provisions of national law which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/34.

(see paras 23, 24, 27, 29, 30, 33, operative part)
Article 9a of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures, as amended by Directive 2011/76/EU of the European Parliament and of the Council of 27 September 2011, must be interpreted as meaning that the requirement set out therein of proportionality of the penalties which it covers precludes a system of penalties, such as that at issue in the main proceedings, which provides for the imposition of a flat-rate fine for all offences, whatever their nature and seriousness, under the rules on the obligation to make prior payment of the toll for use of a road infrastructure.

In the context of Directive 1999/62, the objectives pursued are, as is apparent from the first recital thereof, both the harmonisation of levy systems and the establishment of fair mechanisms for charging infrastructure costs to hauliers in order to eliminate distortions of competition between transport undertakings in the Member States.

In that context, the Court has held that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality (judgment of 19 October 2016, EL-EM-2001, C‑501/14, EU:C:2016:777, paragraph 40).

Furthermore, the Court has held that Member States are required to comply with the principle of proportionality not only as regards the determination of factors constituting an infringement and the determination of the rules concerning the severity of fines, but also as regards the assessment of the factors which may be taken into account in the fixing of a fine (judgment of 19 October 2016, EL-EM-2001, C‑501/14, EU:C:2016:777, paragraph 41).

(see paras 41-43, 50, operative part 1)
By restricting the ground for refusal set out in Article 7(1)(e)(ii) of Regulation No 40/94 to signs which consist ‘exclusively’ of the shape of goods which is ‘necessary’ to obtain a technical result, the legislature duly took into account that any shape of goods is, to a certain extent, functional and that it would therefore be inappropriate to refuse to register a shape of goods as a trade mark solely on the ground that it has functional characteristics. By the terms ‘exclusively’ and ‘necessary’, that provision ensures that solely shapes of goods which only incorporate a technical solution, and whose registration as a trade mark would therefore actually impede the use of that technical solution by other undertakings, are not to be registered. Such a registration would unduly impair the opportunity for competitors to place on the market goods whose shapes incorporate the same technical solution.

As regards the condition relating to the fact that the ground for refusal covers any sign consisting ‘exclusively’ of the shape of goods which is necessary to obtain a technical result, the Court has held that the presence of one or more minor arbitrary elements in a sign, all of whose essential characteristics are dictated by the technical solution to which that sign gives effect, does not alter the conclusion that the sign consists exclusively of the shape of goods which is necessary to obtain a technical result. In addition, the ground for refusal under Article 7(1)(e)(ii) of Regulation No 40/94 is applicable only where all the essential characteristics of the sign are functional, with the result that such a sign cannot be refused registration as a trade mark under that provision if the shape of the goods at issue incorporates a major non-functional element, such as a decorative or imaginative element which plays an important role in the shape.

As regards the condition that registration of a shape of goods as a trade mark may be refused under Article 7(1)(e)(ii) of Regulation No 40/94 only if the shape is ‘necessary’ to obtain the technical result intended, that condition does not mean that the shape at issue must be the only one capable of obtaining that result.

(see paras 26-28)
Appeal—Grounds—Incorrect assessment of the facts and evidence—Inadmissibility—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted—Plea alleging distortion of the facts—Necessity of indicating precisely the evidence alleged to have been distorted and showing the errors of appraisal which led to that distortion

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d))

(see para. 54)
A decision by which the Commission renders binding the commitments accepted by a Member State in order to ensure that an existing aid scheme is compatible with the internal market necessarily supposes that the Commission first assessed whether the aid scheme in question was compatible with the internal market and, after taking into consideration the information provided by the Member State concerned, concluded that that scheme was not, or was no longer, compatible with the internal market and that, consequently, appropriate measures were necessary in order to remedy that incompatibility. The assessment that the Commission thus carried out and the conclusion that it drew from that assessment cannot be excluded from review by the EU judicature without undermining the right to effective judicial protection, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, of the beneficiaries of the existing aid scheme.

A decision by which the Commission renders binding the commitments accepted by a Member State in order to ensure that an existing aid scheme is compatible with the internal market pursuant to Article 18 of Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU, in conjunction with Article 19(1) of that regulation, in that it is based on the preliminary finding that the existing aid scheme is incompatible with the internal market, is liable to harm the interests of the beneficiaries of that scheme. The right to effective judicial protection of the beneficiaries of an existing aid scheme therefore implies that, in the case of an action brought against such a decision, those beneficiaries may also contest the Commission’s assessment of that scheme and its conclusion that that scheme is not compatible with the internal market and that, consequently, appropriate measures are necessary in order to remedy that incompatibility.

That conclusion is not called into question by the argument that the assessment at issue is not definitive. Admittedly, the procedure for reviewing existing aid schemes under Article 108(1) TFEU does not lead to a formal finding that an aid scheme is incompatible with the internal market. Nevertheless, the conclusion that the existing aid scheme is incompatible with the internal market and the proposal of appropriate measures that that conclusion necessarily entails produces, once the Commission has recorded the acceptance of those measures by the Member State concerned, the same legal effects as those of such a formal finding as regards that Member State.

(see paras 38-40, 43, 50-52)
The concept of investigation, appearing in the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, is an autonomous concept of EU law which must be interpreted taking into account, inter alia, its usual meaning as well as the context in which it occurs. In this respect, a structured and formalised Commission procedure that has the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties constitutes an investigation within the meaning of that provision. Those procedures do not necessarily have to have the purpose of detecting or pursuing an offence or irregularity. The concept of investigation could also cover a Commission activity intended to establish facts in order to assess a given situation.

Similarly, in order for a procedure to be classified as an investigation, it is not necessary for the Commission’s position in performing its functions to take the form of a decision within the meaning of the fourth paragraph of Article 288 TFEU. Such a position could take the form, inter alia, of a report or a recommendation. In this respect, whether the Commission itself asks the Member States for the information or whether it receives it on the basis of legislation is not relevant for the purposes of determining whether the procedure should be classified as an investigation.

Therefore, the detailed opinion delivered by the Commission in accordance with Article 9(2) of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations, falls under an investigation procedure within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 which constitutes an official measure clarifying the legal position of that institution in relation to the compatibility of the draft technical regulations notified by the Member State concerned, with, inter alia, the free movement of goods and the freedom of establishment of operators.

(see paras 45-48, 51-53)
Case C‑326/15

‘DNB Banka’ AS

v

Valsts ieņēmumu dienests

(Request for a preliminary ruling from the Administratīvā apgabaltiesa)

(Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/CE — Article 132(1)(f) — Exemptions for certain activities in the public interest — Exemption for the supply of services by independent groups of persons for their members — Applicability to financial services)

Summary — Judgment of the Court (Fourth Chamber), 21 September 2017

Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemptions for certain activities in the public interest — Supplies of services by independent groups of persons who are carrying on an activity which is exempt for the purpose of rendering services to their members — Scope — Economic activity in the area of financial services — Not included

(Council Directive 2006/112, Art. 132(1)(f))

Article 132(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted to the effect that the exemption provided for in that provision relates only to independent groups of persons whose members carry on an activity in the public interest referred to in Article 132 of that directive and that, therefore, the services supplied by a group whose members carry on an economic activity in the area of financial services, which does not constitute such an activity in the public interest, are not entitled to that exemption.

(see para. 45, operative part)
Under Article 1(c) of Regulation No 659/1999 laying down detailed rules for the application of Article [108 TFEU] ‘new aid’ means all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid. Since that provision is established in broad terms, it is capable of covering not only the alteration itself, but also the aid concerned by that alteration.

According to Article 1(b)(ii) of that regulation, ‘existing aid’ is understood as being, inter alia, authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council. Thus, aid which was the subject of an authorisation decision and which, as a result of an alteration that did not satisfy a condition laid down by that decision in order to ensure the compatibility of that aid with the internal market, is no longer covered by the decision which authorised it, may constitute new aid.

Furthermore, a sufficiently broad interpretation of the concept of ‘new aid’, within the meaning of Article 1(c) of Regulation No 659/1999, covering not only the alteration made by the Member State concerned to an existing aid scheme, in breach of the authorisation conditions for that scheme, but also the entire aid scheme as altered, makes it possible to ensure the effectiveness of the system of review of State aid in the European Union by promoting compliance by the Member State concerned with the authorisation conditions for the aid scheme.

It follows that the General Court misconstrued the term ‘new aid’ within the meaning of Article 1(c) of Regulation No 659/1999 and therefore erred in law by requiring the Commission to establish that the alteration to the existing aid, in breach of a condition for its authorisation, affects the very substance of the pre-existing measure, in order to classify as new, and where necessary unlawful, aid, not only that alteration, but also all the existing aid to which that alteration relates. Existing aid which has been altered in breach of the compatibility conditions imposed by the Commission or the Council can no longer be regarded as authorised and, as a result, loses the status of existing aid in its entirety.

(see paras 46-49, 53, 54)
A Member State fails to fulfil its obligations under Article 56 TFEU by imposing the obligation to pay in advance the full amount of the vehicle registration tax applicable in the event of permanent registration, whatever the actual limited duration of the proposed use in that State of a vehicle imported there, and although the temporary duration of the lease or rental has been determined precisely and is known in advance.

Such an obligation is liable to render the rental or leasing of vehicles from a company established in another Member State more onerous than when the rental or leasing contract is entered into with a company established in the Member State concerned, in the light, in particular, of the discriminatory nature of such an obligation with respect to amortisation of the tax, to the detriment of rental or leasing undertakings established in another Member State.

In fact, that obligation to pay in advance the full amount of registration tax is liable to deter both residents from calling on vehicle rental or leasing services offered by service providers established in other Member States and those service providers from offering vehicle rental or leasing services to residents. Such an obligation thus constitutes a restriction on the freedom to provide services, prohibited, in principle, by Article 56 TFEU.

As regards whether such a restriction is justified, objectives concerning compensating for the costs, generated by the use of vehicles, relating to road infrastructure, traffic control, emergency services and registration services cannot however justify the obligation to pay in advance the full amount of registration tax irrespective of the duration of the vehicle’s use in the Member State concerned.

Purely economic objectives cannot constitute an overriding reason in the public interest justifying a restriction on the freedom to provide services.

On the other hand, the overriding reasons in the public interest recognised by the Court include environmental protection. In particular, discouraging the leasing or rental of vehicles with heavy fuel consumption may have a public-interest objective.

As regards whether such a national system observes the principle of proportionality, the introduction of an additional factor corresponding to the duration of use envisaged in the Member State concerned at the time of initial payment of the registration tax would enable the objective of protecting the environment that is pursued to be achieved by means of a less restrictive measure, without calling into question the basis of taxation constituted by the vehicle’s open market value and its level of carbon dioxide emissions.

(see paras 78, 82, 88-90, 102, 108, operative part 1)
31

Contrary to the Commission’s contention, that conclusion is not liable to be affected by Note 3(e), included in Chapter 38 of the CN, according to which ‘fusible ceramic firing testers for kilns (for example Seger cones)’ are included in heading 3824 of the CN and not in another heading of the CN. Apart from the fact that that note refers only to the very specific category of goods to which it therefore relates and to which goods such as those at issue in the main proceedings clearly do not correspond, it must be noted that, unlike the latter goods and, more generally, thermometers, the function of such fusible ceramic firing testers does not consist in a specific measurement of the ambient temperature. Those fusible ceramic firing testers, also called ‘heat sensitive cones’, which are used in ceramic kilns, are designed, by melting and gradually bending under the effect of heat, to facilitate supervision of the progress of the firing of ceramic goods and to determine the point at which those ceramic goods have reached the desired state of firing.
5

Article 78 of the Customs Code reads as follows: ‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods. 2. The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes, Those authorities may also examine the goods where it is still possible for them to be produced. 3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’
29

In those circumstances, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: ‘1. Must a shipment of waste be considered to be effected “in a way which is not specified materially in the document set out in Annex VII”, within the meaning of Article 2(35)(g)(iii) of Regulation No 1013/2006, when the person who arranges the shipment completes the boxes corresponding to the importer/consignee, the recovery facility and the countries/States concerned — in entries 2, 7 and 11 respectively of the document set out in Annex VII to that regulation — in a manner whereby those entries conflict with one another, even though the information relating to those entries is clearly apparent from the international consignment note and other documents available? 2. If the first question is answered in the affirmative, can a fine imposed on that ground, equal in amount to that imposed on a person infringing the obligation to complete the document set out in Annex VII to Regulation No 1013/2006, be considered proportionate? 3. In order for a shipment of waste to be declared illegal, within the meaning of Article 2(35)(g)(iii) of Regulation No 1013/2006, must the person completing the document set out in Annex VII to that regulation deliberately mislead the authorities? 4. Is the fact that the information or data not actually specified is significant as regards environmental protection a relevant factor in order to declare that a shipment of waste, effected “in a way which is not specified materially in the document set out in Annex VII”, within the meaning of Article 2(35)(g)(iii) of Regulation No 1013/2006, is illegal? If the answer is in the affirmative, what information or data of the document set out in Annex VII to that regulation must be considered significant as regards environmental protection? 5. Can a transfer of waste be found to be effected “in a way which is not specified materially in the document set out in Annex VII”, within the meaning of Article 2(35)(g)(iii) of Regulation No 1013/2006, where the authority does not carry out the procedure laid down in Article 24 of that regulation, does not inform the authorities concerned and does not order the illegally shipped waste to be taken back? 6. How must jurisdiction within the meaning of Article 18(1)(a) of Regulation No 1013/2006 be understood and examined? 7. How must the expression in paragraph 15 of Part IV of Annex IC to Regulation No 1013/2006, which states that in order for dealers or brokers to be consignees they must be under the jurisdiction of the country of destination, be interpreted?’