larimo/cjeu-paragraph-retrieval huggingface dataset:
Mediakabel BV v Commissariaat voor de Media.
Date: 2005-06-02
19. Directive 98/34 and the Directive on electronic commerce have a purpose different from that of Directive 89/552. They lay down the Community legal framework applicable only to information society services referred to in Article 1(2) of Directive 98/34, that is, any services provided at a distance by electronic means and at the individual request of a recipient of services. Directive 98/34 provides expressly in that provision that it does ‘not apply to … television broadcasting services covered by point (a) of Article 1 of Directive 89/552’. Thus on this point Directive 98/34 merely refers to Directive 89/552 and, like the Directive on electronic commerce, does not contain any definition of the concept of television service.
29. First, the Court notes that the manner in which images are transmitted is not a determining factor in that assessment, as evidenced by the use in Article 1(a) of Directive 89/552 of the terms ‘by wire or over the air, including that by satellite, in unencoded or encoded form’. The Court has thus held that transmission by cable comes within the scope of that directive, even though cable distribution was not very widespread at the time when Directive 89/552 was adopted (see Case C‑11/95 Commission v Belgium [1996] ECR I-4115, paragraphs 15 to 25).
30. Next, the service in question must consist of the transmission of television programmes intended for reception by the public, that is, an indeterminate number of potential television viewers, to whom the same images are transmitted simultaneously.
41. Moreover, contrary to Mediakabel’s submissions, the concept of ‘near-video on-demand’ is one known to the Community legislature. Although it is true that it has not been specifically defined by Community law, the concept is referred to in the indicative list in Annex V to Directive 98/34, where it is included among television broadcasting services. Likewise, points 83 and 84 of the Explanatory Report accompanying the European Convention on Transfrontier Television of 5 May 1989, which was drawn up at the same time as Directive 89/552 and to which the latter refers in recital 4 thereto, indicate that near-video on-demand is not a ‘communication service operating on individual demand’, a concept which corresponds to that referred to in Article 1(a) of Directive 89/552 and thus comes within the scope of application of that convention (see, to that effect, concerning other points in the Explanatory Report of the European Convention on Transfrontier Television, Joined Cases C-320/94, C-328/94, C-329/94 and C‑337/94 to C‑339/94 RTI and Others [1996] ECR I-6471, paragraph 33, and Case C-245/01 RTL Television [2003] ECR I-12489, paragraph 63).
Commission of the European Communities v Italian Republic.
Date: 2005-06-09
19. The provisions of the directive must be interpreted in the light of its objective which, according to its third recital, is the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and Article 174(2) EC, which provides that Community policy on the environment is to aim at a high level of protection and is to be based, in particular, on the precautionary principle and the principle that preventive action should be taken (see, to that effect, Case C-9/00 Palin Grant and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I-3533, paragraph 23).
Commission of the European Communities v Kingdom of Spain.
Date: 2005-06-09
17. Article 9(1)(c) does permit authorisation, in compliance with the conditions set out in that provision, for the hunting of species listed in Annex II during the periods referred to in Article 7(4) of the Directive, inter alia during their return to their rearing grounds (see, to that effect, Case C-182/02 Ligue pour la protection des oiseaux and Others  [2003] ECR I‑12105, paragraphs 9 to 11).
18. The conditions which must be met for such a hunt to be authorised under Article 9(1)(c) of the Directive include the lack of any other satisfactory solution ( Ligue pour la protection des oiseaux , paragraph 15).
19. That condition cannot be considered to have been satisfied when the hunting period under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection. There would be no such need if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in accordance with Article 7 of the Directive ( Ligue pour la protection des oiseaux , paragraph 16).
Strabag AG (C-462/03) and Kostmann GmbH (C-463/03) v Österreichische Bundesbahnen.
Date: 2005-06-16
29. It ought to be borne in mind that, in accordance with settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.  The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraphs 18 and 19; Case C-373/00 Adolf Truley  [2003] ECR I-1931, paragraphs 21 and 22, and Case C-380/01 Schneider  [2004] ECR I-1389, paragraphs 21 and 22).
37. As the Commission has correctly noted in its written observations, reading those two provisions together shows that the applicability of Directive 93/38 depends on the activity exercised by the contracting entity concerned and on the links between that activity and the contract planned by that entity.  If the latter carries on one of the activities listed in Article 2(2) of Directive 93/38, and in so doing contemplates, which it is a matter for the national court to verify, the award of a supply, works or service contract or the organisation of a design contest, the provisions of this directive will apply to that contract or contest.  If the contracting entity does not carry on one of those activities, the contract or contest will be governed by the rules laid down in the directives concerning the award of public supply, works or service contracts as the case may be.
41. That question relies on the premiss that infrastructure works such as those at issue in the main proceedings do not fall within the material ambit of Directive 93/38, given that, according to the Bundesvergabeamt, such work must be treated as ‘provision’ of transport networks and that such activity does not appear among those expressly listed in Article 2(2)(c) of that directive.
42. Now that premiss is mistaken.  As has been noted in paragraph 37 above, the applicability of Directive 93/38 depends on the activity exercised by the contracting entity concerned and on the links between that activity and the contract planned by that entity.
Société des produits Nestlé SA v Mars UK Ltd.
Date: 2005-07-07
25. Whether inherent or acquired through use, distinctive character must be assessed in relation, on the one hand, to the goods or services in respect of which registration is applied for and, on the other, to the presumed expectations of an average consumer of the category of goods or services in question, who is reasonably well-informed and reasonably observant and circumspect (judgment in Case C-299/99 Philips  [2002] ECR I-5475, paragraphs 59 and 63).
26. In regard to acquisition of distinctive character through use, the identification, by the relevant class of persons, of the product or service as originating from a given undertaking must be as a result of the use of the mark as a trade mark (judgment in Philips , paragraph 64).
27. In order for the latter condition, which is at issue in the dispute in the main proceedings, to be satisfied, the mark in respect of which registration is sought need not necessarily have been used independently.
28. In fact Article 3(3) of the directive contains no restriction in that regard, referring solely to the ‘use which has been made’ of the mark.
29. The expression ‘use of the mark as a trade mark’ must therefore be understood as referring solely to use of the mark for the purposes of the identification, by the relevant class of persons, of the product or service as originating from a given undertaking.
30. Yet, such identification, and thus acquisition of distinctive character, may be as a result both of the use, as part of a registered trade mark, of a component thereof and of the use of a separate mark in conjunction with a registered trade mark. In both cases it is sufficient that, in consequence of such use, the relevant class of persons actually perceive the product or service, designated exclusively by the mark applied for, as originating from a given undertaking.
31. The matters capable of demonstrating that the mark has come to identify the product or service concerned must be assessed globally and, in the context of that assessment, the following items may be taken into consideration: the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant class of persons who, because of the mark, identify goods as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (judgment in Joined Cases C-108/97 and C‑109/97 Windsurfing Chiemsee  [1999] ECR I-2779, paragraphs 49 and 51).
32. In the final analysis, the reply to the question raised must be that the distinctive character of a mark referred to in Article 3(3) of the directive may be acquired in consequence of the use of that mark as part of or in conjunction with a registered trade mark.
Costs
Gaye Gürol v Bezirksregierung Köln.
Date: 2005-07-07
20. In accordance with the Court’s settled case-law, a provision in a decision of the EEC-Turkey Association Council must be regarded as having direct effect when, regard being had to its wording and to the purpose and nature of the decision of which it forms part and of the agreement to which it relates, that provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (Case C-192/89 Sevince  [1990] ECR I-3461, paragraph 15, and Case C171/01 Wählergruppe Gemeinsam  [2003] ECR I-4301, paragraphs 54 and 55).
23. The first sentence of Article 9 of Decision 1/80 lays down a duty of equal treatment in access to education and vocational training on the basis of the same qualifications which, by its nature, may be relied on by an individual before a national court in order to request it to disapply the discriminatory provisions of the legislation of a Member State under which the grant of a right is subject to a condition not imposed on nationals, no further implementing measures being required (see, by analogy, Case C-262/96 Sürül  [1999] ECR I-2685, paragraph 63).
24. That conclusion is borne out by the fact that Article 9 of Decision 1/80 constitutes nothing other than the application and concrete form, in the special sphere of access to education and vocational training in the host Member State (Case C-210/97 Akman  [1998] ECR I-7519, paragraph 41), of the general principle of non-discrimination on grounds of nationality laid down in Article 9 of the Association Agreement, a provision that refers to Article 7 of the EEC Treaty (subsequently Article 6 of the EC Treaty, now, after amendment, Article 12 EC) (see, by analogy, Wählergruppe Gemeinsam , paragraph 59).
36. The first sentence of Article 9 of Decision No 1/80 gives Turkish children a non-discriminatory right of access to courses of general education, apprenticeship and vocational training in the host Member State.  Equal access to education for the purposes of that provision thus extends to all forms of education, including courses in economic science such as those at issue in the main proceedings (see, by analogy, Joined Cases 389/87 390/87 Echternach and Moritz  [1989] ECR 723, paragraphs 29 and 30).
Jacob Meijer BV (C-304/04) and Eagle International Freight BV (C-305/04) v Inspecteur van de Belastingdienst - Douanedistrict Arnhem.
Date: 2005-07-07
22. It should be noted that the Commission has a broad discretion to define the subject-matter of tariff headings, but that it is not authorised to alter the subject-matter of the tariff headings which have been defined on the basis of the Harmonised System (Case C-267/94 France v Commission [1995] ECR I-4845, paragraphs 19 and 20, and Case C-309/98 Holz Geenen  [2000] ECR I-1975, paragraph 13).
23. In paragraph 27 of the CBA Computer  judgment, the Court decided, in relation to the year 1997, that the sound cards at issue, because they had no specific function within the meaning of note 5(E) to chapter 84 of Annex I to Regulation No 2658/87, had to be classified under heading 8471 of the Combined Nomenclature.
24. Even if the Court did not, in CBA Computer , rule on whether the sound cards, in relation to the years 1998 and 1999, were to be classified under heading 8471 or heading 8543 of the Combined Nomenclature, in the version of Regulations Nos 2086/97 and 2261/98, as stated at paragraph 15 above, its finding that those cards do not have a specific function other than the processing of data is applicable to the present proceedings, which concern the same type of sound cards as those at issue in CBA Computer , as previously noted at paragraph 13 above.
Compañía española para la fabricación de aceros inoxidables SA (Acerinox) v Commission of the European Communities.
Date: 2005-07-14
46. In the first place, the Court of First Instance correctly stated in paragraph 30 of the contested judgment the rule governing the burden of proof where the participation of undertakings in meetings of a manifestly anti-competitive character is established. Thus, it pointed out, relying on the judgments in Case C‑199/92 P Hüls  v Commission  [1999] ECR I-4287, paragraph 155, and in Case C‑235/92 P Montecatini  v Commission  [1999] ECR I-4539, paragraph 181, that it is for the undertaking concerned to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.
74. The Court of First Instance verified the merits of the method used by the Commission to determine the amount of the fine and referred, in paragraph 77 of the contested judgment, to the Guidelines. In paragraphs 78 and 81 thereof, it observed that the Commission had fixed the starting point for the fine by reference to the gravity of the infringement, in accordance with the Guidelines.
75. As regards the Commission’s decision not to apply different weightings to that amount for the various undertakings concerned, the Court of First Instance held, in paragraph 90 of the contested judgment, that the Commission was fully entitled to rely, inter alia, on the size and economic strength of those undertakings, having found them all to be large on the basis that the six undertakings concerned accounted for more than 80% of European production of finished stainless steel products.
86. According to the judgment in Case 374/87 Orkem  v Commission  [1989] ECR 3283, paragraphs 34 and 35, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.
88. In that connection, it is clear from the judgment in Case C-298/98 P Finnboard  v Commission  [2000] ECR I-10157, and in particular from paragraphs 56, 59 and 60 thereof, that the Commission may, when fixing the amount of a fine, take account of the assistance given to it by the undertaking concerned by which it is able to establish the existence of the infringement with less difficulty and, in particular, of the fact that an undertaking admitted its participation in the infringement. It may grant an undertaking that has assisted it in that way a significant reduction of the amount of its fine and grant a substantially lesser reduction to another undertaking which merely did not deny the main factual allegations on which the Commission based its objections.
Commission of the European Communities v Federal Republic of Germany.
Date: 2005-07-14
28. As for the question of whether such legislation may be justified under Article 18 of Directive 96/67, it should be noted that the Court has held that, whilst Member States retain the power to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services, it is also true that that power does not confer an unlimited jurisdiction and must be exercised in a manner that does not prejudice the effectiveness of that directive and the objectives it pursues (see Case C-460/02 Commission v Italy  [2004] ECR I-0000, paragraphs 31 and 32).
29. As regards the national legislation in question, it should be observed that, on account of its financial implications, there is a risk that it would impair the rational use of airport infrastructures and the reduction of the costs of the services charged to users, thus jeopardising the opening-up of the groundhandling markets and the useful effect of Directive 96/67 (see Commission v Italy , paragraphs 33 and 34).
34. As regards whether the option of charging a fee complies with Directive 96/67, it should be borne in mind that the Court has held that the reference to installations clearly relates to the infrastructure and the equipment made available by the airport (see Case C-363/01 Flughafen Hannover-Langenhagen  [2003] ECR I-11893, paragraph 40).
35. The Court has also stated that, not only would the possibility for the managing body of an airport to charge an access fee in addition to the fee for use of the airport installations not facilitate access to the market concerned, it would also run directly counter to the objective of reducing the operating costs of airline companies and, in certain cases, would even lead to an increase in those costs (see Flughafen Hannover-Langenhagen , paragraph 44).
Comité Andaluz de Agricultura Ecológica v Administración General del Estado and Comité Aragonés de Agricultura Ecológica.
Date: 2005-07-14
17. It is clear from paragraph 33 of the judgment in Commission v Spain, cited above, that Article 2 of Regulation No 2092/91 referred, as regards the labelling of organically-produced products, to ‘indications in use in each Member State’ and ‘in particular to the … terms or their usual derivatives’ which are set out in a list stating, for the 11 official languages of the Community then in force, one or two expressions in that regard. In the case of 5 of the 11 languages, there was only one expression on that list which corresponds to the French term ‘biologique’. In the case of three other languages there was only one expression which corresponds to the French term ‘écologique’. In respect of German, two expressions corresponding to those two terms were cited without distinction and for each of the two remaining languages another expression was given.
18. In respect of Spanish, the list set out in that article contains the expression ‘ecológico’ alone, encompassing the derivative ‘eco’, and since other usages in Spain have not been demonstrated, the Court has not found, in the action brought by the Commission, that by failing to prohibit the producers of products which have not been organically produced from using other expressions such as ‘biológico’ or ‘bio’ the Kingdom of Spain had failed to fulfil its obligations ( Commission  v Spain , cited above, paragraph 35).
21. However, in spite of the wording of the second recital in the preamble to Regulation No 392/2004, which states that it was necessary ‘to remove any possibility of misinterpretation’, that new formulation has no bearing on the content of Regulation No 2092/91. The adoption of a new version of Article 2 suggests the intention of the legislature to amend Regulation No 2092/91 and not to leave it unchanged. In the absence of such an intention, the adoption of the legislative amendment in question would not have been necessary (see Commission  v Spain , cited above, paragraph 38).
Michail Peros v Techniko Epimelitirio Ellados.
Date: 2005-07-14
32. So far as concerns Article 3(a) of Directive 89/48, the Court has already ruled that it is a provision the subject-matter of which is unconditional and sufficiently precise for individuals to be entitled to rely upon it before a national court against the State where that State has failed to transpose the directive into national law by the end of the period prescribed (Case C‑102/02 Beuttenmüller  [2004] ECR I‑5405, paragraph 55).
34. In any event, it is clear from the case‑law that a Member State may, where there has been no transposition into national law, impose compensatory measures, such as those referred to in Article 4(1) of Directive 89/48, only in so far as they are provided for in the national legislation in force when the application in question was processed (see, to that effect, Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357, paragraph 21, and Case C‑142/04 Aslanidou  [2005] ECR I‑7181, paragraphs 35 to 37).
35. The Court has also ruled that, where one or other of Directive 89/48 or Council Directive 92/51 of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48 (OJ 1992 L 209, p. 25) is applicable, a public body in a Member State, which is bound to comply with the rules laid down in the relevant directive, can no longer require that a candidate’s qualifications be granted official recognition by the competent national authorities (Case C‑234/97 Fernández de Bobadilla  [1999] ECR I-4773, paragraph 27).
38. It is apparent from the case‑law that a Member State may not rely, as against an individual, upon its failure to adopt the very provisions which are intended to facilitate the application of a system established by the directive in question (see to that effect, inter alia, Case C‑141/00 Kügler  [2002] ECR I-6833, paragraph 52, and Case C‑45/01 Dornier  [2003] ECR I‑12911, paragraph 79). The failure to designate a competent authority pursuant to Article 9(1) of Directive 89/48 therefore does not preclude Article 3(a) of that directive from being relied upon as against the authority having de facto competence to regulate the taking up of a particular profession under the relevant national legislation.
39. In the main proceedings, since the taking up of the profession of engineer is reserved for members of the TEE, it appears that the TEE is a competent authority within the meaning of Article 3(a) of Directive 89/48. Consequently, the TEE may not, relying on the ground of inadequate qualifications, refuse to authorise a person in Mr Peros’s position to take up the profession of engineer.