ddrg/super_eurlex huggingface dataset:
Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding a scheme for fair compensation for private copying which is financed from the General State Budget in such a way that it is not possible to ensure that the cost of that compensation is borne by the users of private copies.

On the one hand, it follows from the clear terms of that provision that the private copying exception is intended exclusively for natural persons making, or having the capacity to make, reproductions of protected works or subject matter for private use and for purposes neither directly nor indirectly commercial. It follows that, unlike natural persons who fall within the private copying exception under the conditions specified by Directive 2001/29, legal persons are in any case excluded from benefiting from that exception and thus are not entitled to make private copies without receiving prior authorisation from the rightholders of the protected works or subject matter concerned.

On the other hand, although, as EU law currently stands, Member States are indeed free to establish a scheme under which legal persons are, under certain conditions, liable to pay the levy intended to finance the fair compensation referred to in Article 5(2)(b) of Directive 2001/29, such legal persons cannot, in any event, be the persons ultimately actually liable for payment of that burden, regardless of whether that Member State has established a fair compensation scheme financed by a levy or by its General State Budget.

In those circumstances, a scheme for financing the fair compensation from the General State Budget of the Member State which, firstly, does not have a definite allocation of revenue to particular expenditure so that the budgetary item intended for the payment of the fair compensation must be regarded as being financed from all the budget resources of the General State Budget and therefore also from all taxpayers, including legal persons, and, secondly, does not have a particular measure allowing legal persons to request to be exempted from contributing to the financing of that compensation or, at least, to seek reimbursement, is not such as to guarantee that the cost of that compensation is ultimately borne solely by the users of private copies

(see 29, 30, 36, 37, 39-42, operative part)
Under Article 266 TFEU the institution whose act has been declared void by the EU judicature is required to take the necessary measures to comply with the judgment annulling that act. However, prior to the adoption of such measures by the institution whose act has been annulled, the question arises as to the competence of that institution, since the EU institutions may only act within the limits of the powers conferred on them. In that regard, the obligation to act which follows from Article 266 TFEU is not a source of competence for the institution concerned, nor does it permit that institution to rely on a legal basis which has in the meantime been repealed.

In addition, although it is necessary — in order to comply with the principles governing the temporal application of the law and because of the requirements relating to the principles of legal certainty and the protection of legitimate expectations — to apply the substantive rules in force at the date of the facts in issue even if those rules are no longer in force when an EU institution adopts an act, the provision which forms the legal basis of an act and empowers the EU institution to adopt the act in question must, by contrast, be in force when the act is adopted. Similarly, the procedure for adopting that act must be carried out in accordance with the rules in force at the time of adoption. In that regard, it is not possible, by means of the application of general principles of EU law, for an institution to use an expired legal base, so as to enable it to apply a substantive rule, as the basis for a decision, following the annulment by the EU judicature of the initial decision.

(see paras 35, 36, 38, 40, 45)
Annex I, Chapter V, point 1.4(d) to Regulation No 1/2005 on the protection of animals during transport and related operations must be interpreted as meaning that, in the context of the transport by road of the animals belonging to the species referred to, in particular the bovine species except calves, first, the rest period between the periods of movement may, in principle, be longer than one hour. However, that length of time, if it exceeds one hour, must not be such that, in the specific conditions in which that rest and the transport occur together, it constitutes a risk of injury or undue suffering for the transported animals. Furthermore, the combined journey time and resting periods, as provided for under point 1.4(d) of that chapter, must not exceed 29 hours, subject to the possibility of extending those periods by 2 hours in the interests of the animals, in accordance with point 1.8 of that chapter and without prejudice to the application of Article 22 of that regulation in the event of unforeseeable circumstances. Second, the periods of movement of a maximum of 14 hours may each include 1 or more stop periods. Those break periods must be in addition to the periods of movement that count towards the overall period of movement of a maximum of 14 hours to which they belong.

Regulation No 817/2010 laying down detailed rules pursuant to Regulation No 1234/2007 as regards requirements for the granting of export refunds related to the welfare of live bovine animals during transport must be interpreted as meaning that the authority competent for the payment of export refunds for bovine animals is not bound by the entry made by the official veterinarian at the exit point on the document constituting evidence of exit from the customs territory of the European Union of the animals concerned, according to which the applicable provisions of Regulation No 1/2005 on the protection of animals during transport and related operations were not adhered to in the context of the transport of those animals, in relation to all or some of those animals.

In accordance with the provisions of Regulation No 817/2010, the decision on the adherence to the conditions to which the entitlement to payment of the exports refund is subject, in particular as regards compliance with the relevant provisions of Regulation No 1/2005, falls within the remit of the national authority competent for that payment. In that regard, the indications provided by the official veterinarian at the exit point, in the context of the cooperation between the two parties laid down in Regulation No 817/2010, indeed constitute an item of evidence, but are refutable. That finding is supported when the assessment of that veterinarian does not concern the assessment of the physical condition and state of health of animals, which, under recital 5 of Regulation No 817/2010, requires specific expertise and experience, providing justification that the checks are to be carried out by a veterinarian.

(see paras 50-52, operative part 2)
Article 3(1) of Regulation No 800/2008, declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty, must be interpreted as meaning that the absence, in an aid scheme, in the form of reductions in environmental taxes, of an express reference to that regulation, by citing its title and publication reference in the Official Journal of the European Union, precludes that scheme from being considered to fulfil the conditions for exemption, under Article 25(1) of that regulation, from the obligation to notify laid down in Article 108(3) TFEU.

Notwithstanding the obligation of prior notification of each measure intended to grant or alter new aid, which is incumbent on the Member States under the Treaties and is one of the fundamental features of the system of monitoring in the field of State aid, if an aid measure adopted by a Member State fulfils the relevant conditions provided for in Regulation No 800/2008, that Member State may rely on the possibility of being exempt from its obligation to notify. Conversely, it is apparent from recital 7 of Regulation No 800/2008 that State aid not covered by that regulation should remain subject to the obligation to notify laid down in Article 108(3) TFEU. Consequently, as a qualification of the general rule that there is the obligation to notify, Regulation No 800/2008 and the conditions laid down by it must be interpreted strictly. In that regard, the condition, laid down in Article 3(1) of Regulation No 800/2008, which stipulates that in order for an aid scheme to be exempt from the obligation to notify under Article 108(3) TFEU, it must contain an express reference to that regulation, does not amount to a mere formality, but is mandatory in nature, so that the failure to fulfil that condition precludes an exemption from being granted under that regulation.

(see paras 36, 37, 51, 52, operative part)
Case C‑591/14

European Commission

v

Kingdom of Belgium

(Failure of a Member State to fulfil obligations — State aid — Decision 2011/678/EU — State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals — Aid incompatible with the internal market — Obligation of recovery — Non-performance)

Summary — Judgment of the Court (Fourth Chamber), 13 September 2017

State aid—Examination by the Commission—Determination of the beneficiary of the aid—Actual enjoyment—Possibility of attributing the amount of the aid in equal shares to the economic sectors concerned—Precluded

In respect of State aid, with the exception of cases in which a recovery decision has been annulled pursuant to Article 263 TFEU, the only defences available to a Member State in opposing an infringement action by the Commission under Article 108(2) TFEU are to plead that it was absolutely impossible for it to implement the decision of which it was the addressee or that the recovery decision is non-existent, assuming that the decision contains particularly serious and manifest defects. An argument to the effect that the financing of the screening tests for transmissible spongiform encephalopathies in bovine animals was wrongly classified is in fact tantamount to contesting the very existence of State aid and, consequently, the validity of the recovery decision, without, however, going so far as to contend that that decision is non-existent. Thus, this argument can be relied upon only in the procedural context of an action for annulment, as provided for in Article 263 TFEU. (see paras 38, 39)

In respect of State aid, apprehension of even insuperable internal difficulties, relating inter alia to verification of the situation of each undertaking concerned for the purposes of recovering unlawful aid or to the wide reach of the aid scheme across the fabric of national production industry, cannot justify a failure by a Member State to fulfil its obligations under EU law. (see para. 44)
7

Article 12 of the directive, entitled ‘Retention of the right of residence by family members in the event of death or departure of the Union citizen’, states: ‘1. Without prejudice to the second subparagraph, the Union citizen’s death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State. Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1). 2. Without prejudice to the second subparagraph, the Union citizen’s death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen’s death. Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4). Such family members shall retain their right of residence exclusively on a personal basis. 3. The Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.’
58

The Spanish Government contends that the difference in treatment at issue in the main proceedings between career civil servants and non-permanent members of staff is justified by the existence of such objective grounds. In that regard, it states, first, that non-permanent members of staff are appointed in order to carry out duties which are temporary in nature. The particular nature of the tasks and the specific features of the duties of non-permanent staff, which consist in duties entailing trust and special advice, cannot, it is alleged, be treated in the same way as duties involving tasks of a permanent nature in the administrative organisation. The Spanish Government stresses, secondly, the fact that appointment and termination of appointment of those staff are discretionary, in the sense that the employer does not have to adhere to any formal requirements in the matter. Thirdly, the posts of non-permanent staff are exceptional in nature and those employed in that capacity are not as a matter of course retained in the service for a long time. Fourth and lastly, since the three-yearly length-of-service increments at issue in the main proceedings are a reward granted to staff who remain continuously in the service of the administration performing purely administrative duties there, it would be contradictory to grant those increments to non-permanent staff who do not meet those characteristics.
11

Article 19 of the regulation, ‘Cooperation with Ireland and the United Kingdom’, reads as follows: ‘1. For the purposes of this Regulation, the exchange of information and the cooperation with Ireland and the United Kingdom may take place on the basis of bilateral or multilateral agreements between Ireland or the United Kingdom respectively and one or several neighbouring Member States or through regional networks based on those agreements. The national coordination centres of the Member States shall be the contact points for the exchange of information with the corresponding authorities of Ireland and the United Kingdom within EUROSUR. Once those agreements are concluded, they shall be notified to the Commission. 2. The agreements referred to in paragraph 1 shall be limited to the following exchange of information between the national coordination centre of a Member State and the corresponding authority of Ireland or the United Kingdom: (a) information contained in the national situational picture of a Member State to the extent transmitted to the Agency for the purposes of the European situational picture and the common pre-frontier intelligence picture; (b) information collected by Ireland and the United Kingdom which is relevant for the purposes of the European situational picture and the common pre-frontier intelligence picture; (c) information as referred to in Article 9(9). 3. Information provided in the context of EUROSUR by the Agency or by a Member State which is not party to an agreement as referred to in paragraph 1 shall not be shared with Ireland or the United Kingdom without the prior approval of the Agency or of that Member State. The Member States and the Agency shall be bound by the refusal to share that information with Ireland or the United Kingdom. 4. Onward transmission or other communication of information exchanged under this Article to third countries or to third parties shall be prohibited. 5. The agreements referred to in paragraph 1 shall include provisions on the financial costs arising from the participation of Ireland and the United Kingdom in the implementation of those agreements.’
7

Clause 2 of the Framework Agreement provided: ‘1. This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour. 2. To promote equal opportunities and equal treatment between men and women, the parties to this agreement consider that the right to parental leave provided for under clause 2.1 should, in principle, be granted on a non-transferable basis. 3. The conditions of access and detailed rules for applying parental leave shall be defined by law and/or collective agreement in the Member States, as long as the minimum requirements of this agreement are respected. Member States and/or social partners may, in particular: (a) decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system; (b) make entitlement to parental leave subject to a period of work qualification and/or a length of service qualification which shall not exceed one year; (c) adjust conditions of access and detailed rules for applying parental leave to the special circumstances of adoption; (d) establish notice periods to be given by the worker to the employer when exercising the right to parental leave, specifying the beginning and the end of the period of leave; (e) define the circumstances in which an employer, following consultation in accordance with national law, collective agreements and practices, is allowed to postpone the granting of parental leave for justifiable reasons related to the operation of the undertaking (e.g. where work is of a seasonal nature, where a replacement cannot be found within the notice period, where a significant proportion of the workforce applies for parental leave at the same time, where a specific function is of strategic importance). Any problem arising from the application of this provision should be dealt with in accordance with national law, collective agreements and practices; (f) in addition to (e), authorise special arrangements to meet the operational and organisational requirements of small undertakings.’
14

Furthermore, the Explanatory Notes to the HS published by the World Customs Organisation (2007 edition), concerning heading 30.03 of the HS, corresponding to heading 3003 of the CN (‘the Explanatory Notes to the HS’), state, in particular, as follows: ‘The provisions of the heading text do not apply to foodstuffs or beverages such as dietetic, diabetic or fortified foods, tonic beverages or mineral waters (natural or artificial), which fall to be classified under their own appropriate headings. This is essentially the case as regards food preparations containing only nutritional substances. The major nutritional substances in food are proteins, carbohydrates and fats. Vitamins and mineral salts also play a part in nutrition. Similarly foodstuffs and beverages containing medicinal substances are excluded from the heading if those substances are added solely to ensure a better dietetic balance, to increase the energy-giving or nutritional value of the product or to improve its flavour, always provided that the product retains its character of a foodstuff or a beverage. … Further, this heading excludes food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well-being but have no indication as to use for the prevention or treatment of any disease or ailment. These products, which are usually in liquid form but may also be put up in powder or tablet form, are generally classified in heading 21.06 or Chapter 22. On the other hand, the heading covers preparations in which the foodstuff or the beverage merely serves as a support, vehicle or sweetening agent for the medicinal substances (e.g., in order to facilitate ingestion).’
15

The referring court inclines to the view that the limitation period begins to run, irrespective of when the prejudice occurs, with the act or omission by the economic operator which constitutes an infringement of a provision of EU law. Such an interpretation can be inferred from the wording of Articles 1(2) and 3(1) of Regulation No 2988/95. First, the wording of Article 1(2) of that regulation indicates that the EU legislature — which drafted the provision in the conditional — does not link the concept of ‘irregularity’ with the occurrence of a prejudice, since the conduct of an economic operator may also constitute an irregularity if it ‘would have’ the effect of prejudicing the budget of the European Union. Second, it follows from the wording of the first subparagraph of Article 3(1) of the regulation, which refers to ‘the time when the irregularity … was committed’, that the EU legislature intended to link the commencement of the limitation period not to the ‘occurrence’ but to the ‘commission’ of the irregularity, namely to conduct of the economic operator which must consist in an infringement of a provision of EU law.