larimo/cjeu-paragraph-retrieval huggingface dataset:
Mobistar SA v Institut belge des services postaux et des télécommunications (IBPT).
Date: 2006-07-13
23. Firstly, it must be stated that the concept of number portability covers the facility available to a mobile telephone subscriber to retain the same number when changing operator.
24. The implementation of that facility requires the platforms between operators to be compatible, the subscriber’s number to be ported from one operator to another and technical operations to allow the forwarding of telephone calls to the ported number.
25. Number portability is intended to remove the obstacles to consumers’ freedom of choice particularly between mobile telephone operators and thus to ensure development of effective competition on the telephone services market.
26. With a view to achieving those aims, the Community legislature provided, in Article 30(2) of the Universal Service Directive, that national regulatory authorities are to ensure that pricing for interconnection related to the provision of number portability is cost oriented and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities.
33. At the outset, it should be noted that Article 30(2) of the Universal Service Directive requires the national regulatory authorities to ensure that the operators set the prices on the basis of their costs and, furthermore, that the prices do not dissuade consumers.
34. Once it is established that prices are fixed on the basis of costs, that provision confers a certain discretion on the national authorities to assess the situation and define the method which appears to them to be the most suitable to make portability fully effective, in a manner which ensures that consumers are not dissuaded from making use of that facility.
37. In the light of all those considerations, the answer to the third part of the first question must be that Article 30(2) of the Universal Service Directive does not preclude the adoption of a national measure such as that at issue in the main proceedings which fixes in advance and on the basis of an abstract model of the costs maximum prices which may be charged by the donor operator to the recipient operator as set-up costs, provided that the prices are fixed on the basis of the costs in such a way that consumers are not dissuaded from making use of the facility of portability.
The second question
40. In that regard, it is appropriate to note that the body responsible for hearing an appeal against a decision of the national regulatory authority in accordance with Article 4 of the Framework Directive must be able to have at its disposal all the information necessary in order to decide in full knowledge of the facts on the merits of the appeal, including information that is subject to confidentiality.  However, the protection of such information and business confidentiality must be guaranteed and must be adjusted to reconcile it with the requirements of effective legal protection and the rights of defence of the parties to the dispute.
Uroplasty BV v Inspecteur van de Belastingdienst - Douanedistrict Rotterdam.
Date: 2006-07-13
40. According to settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs tariff purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (see, in particular, Case C‑42/99 Eru Portuguesa  [2000] ECR I-7691, paragraph 13; Case C‑495/03 Intermodal Transports  [2005] ECR I-8151, paragraph 47; Case C‑445/04 Possehl Erzkontor  [2005] ECR I-0000, paragraph 19; and Case C-500/04 Proxxon  [2006] ECR I-0000, paragraph 21).
41. The Explanatory Notes to the CN and those to the HS are an important aid for interpreting the scope of the various tariff headings but do not have legally binding force. The wording of those Notes must therefore be consistent with the provisions of the CN and cannot alter their scope (see, in particular, Case C‑130/02 Krings  [2004] ECR I-2121, paragraph 28, Case C-467/03 Ikegami  [2005] ECR I-2389, paragraph 17, and Proxxon  paragraph 22).
42. For the purposes of classification under the appropriate heading, it is important, finally, to recall that the intended use of a product may constitute an objective criterion in relation to tariff classification if it is inherent in the product, and such inherent character must be capable of being assessed on the basis of the product's objective characteristics and properties (see Krings  paragraph 30, Ikegami , paragraph 23, and Proxxon, paragraph 31).
56. It also follows from paragraphs 52 and 53 of this judgment that the product is an appliance to be implanted in the body which, since it does not come within any of the other subheadings of heading 9021 of the CN, must therefore be classified under subheading 9021 90 90 of the CN as ‘other appliances’.
United Utilities plc v Commissioners of Customs & Excise.
Date: 2006-07-13
21. In order to answer that question, it is to be noted at the outset that the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, SDC , cited above, paragraph 20, and Case C-472/03 Arthur Andersen  [2005] ECR I-1719, paragraph 24).
22. Moreover, the interpretation of the terms used in that provision must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT (Case C‑45/01 Dornier  [2003] ECR I-12911, paragraph 42).
23. More particularly, it should be noted that the exemption from which betting, lotteries and other forms of gambling benefit is based on practical considerations, gambling transactions not lending themselves easily to the application of VAT (Case C-86/99 Freemans  [2001] ECR I-4167, paragraph 30) and not, as is the case with certain public interest services supplied in the social sector, on a desire to afford those activities more advantageous VAT treatment.
26. Clearly, in contrast to the betting transaction referred to in Article 13B(f) of the Sixth Directive, that activity alone cannot in any way be said to be characterised by the offer to customers placing bets of a chance of winning in consideration for accepting the risk of having to pay for winnings and cannot, therefore, be classified as a betting transaction within the meaning of that provision.
27. For the same reason, that interpretation is not affected by the fact that the acceptance of bets, in this case by Vertex staff, is a stage, however important , in the placing of those bets, since it is as a result of that acceptance that a legal relationship between Littlewoods and its customers is brought about.
28. Further, case-law to the effect that the change in the legal and financial relationship between a supplier of services and its customer is a specific aspect of transactions concerning transfers ( SDC , cited above, paragraph 66, and CSC Financial Services , paragraph 26) cannot be applied, mutatis mutandis, to the activities referred to in Article 13B(f) of the Sixth Directive since the objectives on which exemptions for transactions concerning transfers under Article 13B(d) of that directive are founded are not the same as those on which the exemption in Article 13B(f) of that directive are based.
29. In the light of the foregoing, the answer to the question referred must be that Article 13B(f) of the Sixth Directive must be interpreted as meaning that the provision of call centre services to a telephone bookmaking organiser, which entails the staff of the supplier of those services accepting bets on behalf of the organiser, does not constitute a betting transaction within the meaning of that provision and cannot, therefore, qualify for the exemption from VAT laid down by that provision.
Costs
Commission of the European Communities v Portuguese Republic.
Date: 2006-07-13
9. It must be borne in mind that Article 4 of the Directive lays down a protection regime which is specifically targeted and reinforced both for the species listed in Annex I and for migratory species, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the Community (see to that effect, Case C‑169/89 Van den Burg  [1990] ECR I-2143, paragraph 11, and Case C‑44/95 Royal Society for the Protection of Birds  [1996] ECR I‑3805, paragraphs 23 and 26).
10. It is the ornithological criteria laid down in paragraphs (1) and (2) of Article 4 which are to guide the Member States in designating and defining the boundaries of SPAs (see, to that effect, Royal Society for the Protection of Birds , paragraph 26).
13. In those circumstances a Member State may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded from the SPA are no longer the most suitable territories for the conservation of species of wild birds within the meaning of Article 4(1) of the Directive.
14. The Portuguese Government has not even sought to establish the existence of such a situation in this case.
Sam Mc Cauley Chemists (Blackpool) Ltd and Mark Sadja v Pharmaceutical Society of Ireland and Others.
Date: 2006-07-13
24. In addition, the authorities of a Member State are required, when examining the application made by another Member State’s national for authorisation to practise a regulated profession, to take the professional qualifications of the party concerned into consideration and to compare, on the one hand, the qualifications shown by his diplomas and relevant professional experience with, on the other, the professional qualifications required by the national legislation to practise that profession, and to do so irrespective of whether or not a directive laying down specific rules on the mutual recognition of the diplomas concerned has been adopted (see, to that effect, Case C‑238/98 Hocsman  [2000] ECR I-6623, paragraphs 23 and 31, and Case C‑313/01 Morgenbesser  [2003] ECR I-13467, paragraphs 57 and 58).
25. The object of such directives is, as is apparent from Article 47(1) EC, to facilitate the mutual recognition of diplomas, by laying down rules and common criteria which result, as far as possible, in automatic recognition of those diplomas (Case C-31/00 Dreessen  [2002] ECR I‑663, paragraph 26).
26. As regards the scope of those directives, Article 47 EC confers on the Community legislature the power to harmonise completely, where appropriate, the diplomas concerned, while leaving to the legislature’s judgment the manner in which it is to go about achieving such an objective. Therefore, the legislature is free to introduce harmonisation in stages, having regard to the fact that it is generally difficult to implement harmonising measures because it requires the competent Community institutions to draw up, on the basis of diverse and complex national provisions, common rules in harmony with the aims laid down by the Treaty and approved by a qualified majority of the Members of the Council, or even the unanimous agreement of the latter (see, to that effect, Case C-233/94 Germany  v Parliament and Council  [1997] ECR I-2405, paragraph 43, and Case  C-166/98 Socridis  [1999] ECR I-3791, paragraph 26).
Commission of the European Communities v Italian Republic.
Date: 2006-07-18
25. As a preliminary point, it is to be noted that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under Community law (see, inter alia, Case C-212/99 Commission v Italy,  paragraph 34, and Case C-195/02 Commission  v Spain  [2004] ECR I-7857, paragraph 82).
27. Further, according to settled case-law, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C‑304/02 Commission  v France  [2005] ECR I‑6263, paragraph 30, and Case C-177/04 Commission  v France  [2006] ECR I-0000, paragraph 20).
29. As is clear from paragraphs 21 and 22 of the judgment in Case C-212/99 Commission  v Italy,  the principle of equal treatment laid down by Article 39 EC required that, where former assistants who have been employed under a fixed-term contract have that contract replaced by one of indeterminate duration, they should retain all the rights acquired from the date of their original rec ruitment. That guarantee had consequences not only with regard to increases in salary, but also with regard to seniority and to payment by the employer of social security contributions.
33. Since the Commission seeks the imposition of a penalty payment on the Italian Republic, it must be ascertained whether the alleged breach of obligations has continued up to the Court's examination of the facts (see Case C‑304/02 Commission  v France, paragraph 31, and Case C-177/04 Commission  v France,  paragraph 21).
40. It remains to be ascertained whether the measures taken by the universities in question after the adoption of Decree-Law No 2/2004 achieved the declared objectives.
41. According to settled case-law, it is for the Commission to provide the Court, in the course of these proceedings, 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 (Case C‑387/97 Commission  v Greece  [2000] ECR I‑5047, paragraph 73). 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 (Case C‑304/02 Commission  v France , paragraph 56).
45. Accordingly, the Court does not have sufficient information to permit it to find that, on the date of the Court’s examination of the facts, the breach of obligations persisted.
46. The imposition of a penalty payment is not, therefore, justified.
Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni and ENI SpA.
Date: 2006-07-18
35. In that respect, it should be noted that Member States may not levy any fees or charges in relation to authorisation procedures other than those provided for by Directive 97/13 (see, to that effect, Albacom and Infostrada , paragraph 41).
36. Article 11 of that directive expressly provides that Member States are to ensure that any fees imposed on undertakings as part of authorisation procedures seek only to cover the administrative costs incurred by the licensing system ( Albacom and Infostrada , paragraph 33).
Fazenda Pública v Organon Portuguesa - Produtos Químicos e Farmacêuticos Ldª.
Date: 2006-09-07
17. In accordance with the Court’s settled case-law, charges constitute taxes for the purposes of Directive 69/335 where they are collected for drawing up notarially attested acts recording a transaction covered by the directive, under a system, such as that at issue in the main proceedings, where notaries are employed by the State and the charges in question are paid in part to the latter for the financing of its official business (Case C-56/98 Modelo  [1999] ECR I‑6427, paragraph 23, and Case C-19/99 Modelo  [2000] ECR I‑7213, paragraph 23).
21. In that respect, it is clear from the case-law of the Court (Case C-236/97 Codan  [1998] ECR I‑8679, paragraph 31, and the order of 5 February 2004 in Case C‑357/02 SONAE Distribuição , not published in the ECR, paragraph 23) that Article 12(1)(a) of Directive 69/335 allows a tax to be charged in the event of a transfer of securities, irrespective of whether the company issuing the securities is listed on a Stock Exchange and of whether those securities are transferred on the Stock Exchange or directly from the transferor to the transferee.
24. By providing that the duties to which it refers may be ‘charged at a flat rate or not’, Article 12(1)(a) of Directive 69/335 allows the Member States freely to determine the rate thereof. Moreover, those duties are not deemed to constitute the consideration for a service rendered, with the result that the amount thereof need not be linked to the cost of that service and that the criteria established by the case-law (see, in particular, Case C-206/99 SONAE  [2001] ECR I‑4679, paragraphs 32 to 34, and the case-law cited) to distinguish duties paid by way of fees or dues, within the meaning of Directive 69/335, from those which do not come within that category are not applicable to them (order in SONAE Distribuição , paragraphs 26 and 27).
Alexander Jehle and Weinhaus Kiderlen v Land Baden-Württemberg.
Date: 2006-09-07
36. It should be recalled, in this respect, that in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts is a matter for the national court. The Court therefore has no jurisdiction to give a ruling on the facts in the main proceedings or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Joined Cases C-211/03, C-299/03 and C-316/03 to C-318/03 HLH Warenvertrieb and Orthica  [2005] ECR I‑5141, paragraph 96).
37. The Court may, however, supply the national courts with the principles of interpretation relating to Community law which may be useful in the application of the Community rule (Case 35/75 Matisa Maschinen [1975] ECR 1205, paragraph 3).
Bovemij Verzekeringen NV v Benelux-Merkenbureau.
Date: 2006-09-07
20. It must first of all be recalled that, as regards the trade marks registered at BMB, the Benelux territory must be treated like the territory of a Member State, since Article 1 of the Directive regards Benelux trade marks as trade marks registered in a Member State (Case C-375/97 General Motors [1999] ECR I-5421, paragraph 29).
21. Article 3(3) of the Directive does not provide an independent right to have a trade mark registered. It is an exception to the grounds for refusal listed in Article 3(1)(b) to (d) of the Directive. Its scope must therefore be interpreted in light of those grounds for refusal.
22. In order to assess whether those grounds for refusal must be disregarded because of the acquisition of distinctive character through use under Article 3(3) of the Directive, only the situation prevailing in the part of the territory of the Member State concerned (or, as the case may be, in the part of the Benelux territory) where the grounds for refusal have been noted is relevant (see, to that effect, as regards Article 7(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), a provision essentially identical to Article 3(3) of the Directive, judgment of 22 June 2006 in Case C-25/05 P Storck  v OHIM  [2006] ECR I-0000, paragraph 83).
27. In the linguistic area thus defined, the competent authority must assess whether the relevant class of persons, or at least a significant proportion thereof, identifies the product or service in question as originating from a particular undertaking because of the trade mark (see, to that effect, Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, paragraph 52, and Case C-299/99 Philips [2002] ECR I-5475, paragraph 61).
Heger Rudi GmbH v Finanzamt Graz-Stadt.
Date: 2006-09-07
16. In respect of the relationship between the first two paragraphs of Article 9 of the Sixth Directive, the Court has already held that Article 9(1) in no way takes precedence over Article 9(2). In each situation, the question which must be asked is whether it corresponds to one of the instances mentioned in Article 9(2) of that directive. If not, that situation falls within the scope of Article 9(1) (see, to that effect, Case C‑327/94 Dudda  [1996] ECR I‑4595, paragraph 21, and Case C‑41/04 Levob Verzekeringen and OV Bank  [2005] ECR I‑9433, paragraph 33).
17. It follows that Article 9(2)(a) of the Sixth Directive must not be regarded as an exception to a general rule, which must be narrowly construed (see, to that effect, Case C‑108/00 SPI [2001]  ECR I‑2361, point 17).
20. As far as the concept of ‘immovable property’ is concerned, one of the essential characteristics of such property is that it is attached to a specific part of the earth’s surface. In that respect, the Court has previously held that a piece of land which is permanently delimited, even if it is underwater, can be classified as immovable property (see, to that effect, Case C-428/02 Fonden Marselisborg Lystbådehavn  [2005] ECR I‑1527, paragraph 34).
23. In those circumstances it must still be assessed whether the connection between the service in question and that immovable property is sufficient. It would be contrary to the general scheme of Article 9(2)(a) of the Sixth Directive to place within the scope of that special rule every supply of services provided that it has a connection, even a very tenuous one, with immovable property, since a large number of services are connected in one way or another with immovable property.
24. Thus, only supplies of services which have a sufficiently direct connection with immovable property come under Article 9(2)(a) of the Sixth Directive. Such a connection is moreover characteristic of all the supplies of services listed in that provision.
25. The fishing rights at the centre of the dispute in the main proceedings can be exercised only in relation to the river in question and on the stretches of that river mentioned in the permits. The stretch of water itself, therefore, makes up a constituent element of the fishing permits and, accordingly, of the transmission of the fishing rights. Since a supply of services such as that in question in the main proceedings consists in the transmission of an actual right of use of the property, in this case the river, that immovable property constitutes a central and essential element of that supply. Furthermore, the place where the immovable property is situated is the place of final consumption of the service.
Industrias Nucleares do Brasil SA and Siemens AG v UBS AG (C-123/04) and Texas Utilities Electric Corporation (C-124/04).
Date: 2006-09-12
39. That analysis is confirmed by the general scheme and purpose of Chapter 6, of which Article 75 EA forms part. That chapter implements the general obligation imposed on the Community institutions by Article 2(d) EA to ensure that all users in the Community receive a regular and equitable supply of ores and nuclear fuels (Case 7/71 Commission v France  [1971] ECR 1003, paragraph 22). The effect of Article 75 EA is to remove substances which are the subject of the contract work operations referred to in that provision from the ambit of the provisions relating to the supply system (see Ruling 1/78 [1978] ECR 2151, paragraph 16).
41. That interpretation is not undermined by the Commission’s argument that contracts negotiated on the oligopolistic market for uranium enrichment have potentially significant effects on the security of the long-term supply of the Community and on the equal treatment of users. Even if that view were to be accepted, such reasoning implies that the interpretation of Article 75 EA should depend on market conditions. Such an interpretation of the provisions concerning the supply rules cannot be accepted (see, to that effect, Commission v France , paragraph 43).