larimo/cjeu-paragraph-retrieval huggingface dataset:
Koldo Gorostiaga Atxalandabaso v European Parliament.
Date: 2009-02-19
41. The right to a fair trial, which derives inter alia from Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU (Case C-305/05 Ordre des barreaux francophones et germanophone and Others  [2007] ECR I-5305, paragraph 29, and Joined Cases C‑341/06 P and C-342/06 P Chronopost and La Post  v UFEX and Others  [2008] ECR I-0000, paragraph 44).
46. Furthermore, it must be observed that there are two aspects to the requirement of impartiality. In the first place, the tribunal must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect ( Chronopost and La Poste  v UFEX and Others , paragraph 54, and to that effect, Eur. Court HR, Fey v. Austria , judgment of 24 February 1993, Series A No 255‑A, p. 12, § 28; Findlay v. United Kingdom , judgment of 25 February 1997, Reports of Judgments and Decisions  1997-I, p. 281, § 73; and Forum Maritime S.A . v. Romania , judgment of 4 October 2007, not yet published in the Reports of Judgments and Decisions,  § 116).
56. Therefore, contrary to the appellant’s contentions, such a partial annulment of the decision of 24 February 2004 did not preclude the Secretary-General from resuming the procedure for the recovery of sums due after having been duly empowered by the Bureau, in accordance with Article 27(4) of the EAM Rules as interpreted by the Gorostiaga judgment. As the Court of First Instance correctly held in paragraph 30 of the order under appeal, the procedure for replacing an annulled measure may be resumed at the very point at which the illegality occurred without necessarily affecting the preparatory acts (see, to that effect, Case C-415/96 Spain  v Commission  [1998] ECR I‑6993, paragraphs 31 and 32).
57. Next, it must be observed that no appeal was brought against the Gorostiaga  judgment before the Court and that consequently its operative part and ratio decidendi  became final (Joined Cases C-442/03 P and C-471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya  v Commission  [2006] ECR I-4845, paragraphs 44 and 47 and the case-law cited). Therefore, whether the sums to be recovered were undue sums and whether the appellant was obliged to reimburse them could not be referred back to the Court of First Instance and examined by it without disregarding the force of res judicata  which now applies to the Gorostiaga judgment.
Athesia Druck Srl v Ministero dell'economia e delle finanze and Agenzia delle entrate.
Date: 2009-02-19
20. It should be borne in mind that Article 9 of the Sixth Directive contains rules for determining the place where services are deemed to be supplied for VAT purposes. Whereas Article 9(1) lays down a general rule in that regard, Article 9(2) sets out a number of specific instances of places where certain services are deemed to be supplied. The object of those provisions is to avoid, first, conflicts of jurisdiction which may result in double taxation, and, secondly, non-taxation (Case 168/84 Berkholz [1985] ECR 2251, paragraph 14; Case C‑327/94 Dudda [1996] ECR I‑4595, paragraph 20; and Case C‑291/07 Kollektivavtalsstiftelsen TRR Trygghetsrådet  [2008] ECR I‑0000, paragraph 24).
23. In accordance with the case-law of the Court, the second indent of Article 9(2)(e) of the Sixth Directive must be interpreted as applying not only to advertising services supplied directly and invoiced by the supplier to a taxable advertiser, but also to services supplied indirectly to the advertiser and invoiced to a third party who, in turn, invoices them to the advertiser (Case C‑108/00 SPI [2001] ECR I‑2361, paragraph 22, and Case C‑438/01 Design Concept  [2003] ECR I‑5617, paragraph 17).
24. It follows that the indirect nature of the services, resulting from the fact that they were supplied and invoiced by a first supplier to an undertaking, which was itself commissioned to perform advertising services, before being invoiced by that undertaking to the advertiser, does not constitute an obstacle to the application of Article 9(2)(e) of the Sixth Directive ( Design Concept , paragraph 18).
25. The Court has expressly stated that, under Article 9(1) and (2) of the Sixth Directive, the determination of the place where a service is supplied depends solely on the place where the supplier and the recipient of the service in question are established, since Article 9 does not in any way require account to be taken of transactions carried out after that first supply of services (see, to that effect, Design Concept , paragraph 26).
26. Accordingly, in a case of an indirect supply of services such as that at issue in the main proceedings, involving a first supplier of services, an intermediate customer and an advertiser who receives services from the intermediate customer, it is necessary to consider separately the transaction involving the supply of services by the first supplier to the intermediate customer, in order to determine the place of taxation of that transaction (see, to that effect, Design Concept , paragraph 28).
Commission of the European Communities v Republic of Austria.
Date: 2009-03-03
13. In that regard, it must be pointed out, first, that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the reopening of the oral procedure under Article 61 of its Rules of Procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Case C‑210/03 Swedish Match  [2004] ECR I-11893, paragraph 25; Case C‑138/05 Stichting Zuid-Hollandse Milieufederatie  [2006] ECR I‑8339, paragraph 23; and order in Case C-17/98 Emesa Sugar  [2000] ECR I‑665, paragraph 18).
33. Under the first paragraph of Article 307 EC, the rights and obligations arising from an agreement concluded before the date of accession of a Member State between it and a third country are not affected by the provisions of the Treaty. The purpose of that provision is to make it clear, in accordance with the principles of international law, that application of the Treaty is not to affect the duty of the Member State concerned to respect the rights of third countries under a prior agreement and to perform its obligations thereunder (see Case 812/79 Burgoa [1980] ECR 2787, paragraph 8; Case C-84/98 Commission  v Portugal [2000] ECR I‑5215, paragraph 53; and Case C-216/01 Budĕjovický Budvar [2003] ECR I‑13617, paragraphs 144 and 145).
37. Accordingly, those powers of the Council, which consist in the unilateral adoption of restrictive measures with regard to third countries on a matter which is identical to or connected with that covered by an earlier agreement concluded between a Member State and a third country, reveal an incompatibility with that agreement where, first, the agreement does not contain a provision allowing the Member State concerned to exercise its rights and to fulfil its obligations as a member of the Community and, second, there is also no international-law mechanism which makes that possible.
Commission of the European Communities v Kingdom of Sweden.
Date: 2009-03-03
12. In that regard, it must be pointed out, first, that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the reopening of the oral procedure under Article 61 of its Rules of Procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Case C‑210/03 Swedish Match  [2004] ECR I-11893, paragraph 25; Case C‑138/05 Stichting Zuid-Hollandse Milieufederatie  [2006] ECR I-8339, paragraph 23; and order in Case C-17/98 Emesa Sugar  [2000] ECR I‑665, paragraph 18).
34. Under the first paragraph of Article 307 EC, the rights and obligations arising from an agreement concluded before the date of accession of a Member State between it and a third country are not affected by the provisions of the Treaty. The purpose of that provision is to make it clear, in accordance with the principles of international law, that application of the Treaty is not to affect the duty of the Member State concerned to respect the rights of third countries under a prior agreement and to perform its obligations (see Case 812/79 Burgoa  [1980] ECR 2787, paragraph 8; Case C-84/98 Commission  v Portugal  [2000] ECR I‑5215, paragraph 53; and Case C-216/01 Budĕjovický Budvar  [2003] ECR I‑13617, paragraphs 144 and 145).
38. Accordingly, those powers of the Council, which consist in the unilateral adoption of restrictive measures with regard to third countries on a matter which is identical to or connected with that covered by an earlier agreement concluded between a Member State and a third country, reveal an incompatibility with that agreement where, first, the agreement does not contain a provision allowing the Member State concerned to exercise its rights and to fulfil its obligations as a member of the Community and, second, there is also no international-law mechanism which makes that possible.
Antartica Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and The Nasdaq Stock Market Inc.
Date: 2009-03-12
43. It should be noted that the types of injury referred to in Article 8(5) of Regulation No 40/94, where they occur, are the consequence of a certain degree of similarity between the earlier and later marks, by virtue of which the relevant public makes a connection between those two marks, that is to say, establishes a link between them even though it does not confuse them (see, as regards Article 4(4)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), which is essentially identical to Article 8(5) of Regulation No 40/94, Case C-252/07 Intel Corporation  [2008] I‑0000, paragraph 30 and the case-law cited).
45. However, the existence of such a link must be subject to an overall assessment, taking into account all factors relevant to the circumstances of the case and, in particular, the degree of similarity between the marks at issue; the nature of the goods or services for which the marks at issue were registered, including the degree of closeness or dissimilarity between those goods or services, and the relevant section of the public; the strength of the earlier mark’s reputation; the degree of the earlier mark’s distinctive character, whether inherent or acquired through use and the existence of the likelihood of confusion on the part of the public ( Intel Corporation , paragraphs 41 and 42 and the case-law cited).
Commission of the European Communities v Hellenic Republic.
Date: 2009-03-19
40. It is settled case-law that, where the Commission relies on detailed complaints revealing repeated failures to comply with the provisions of a directive, it is incumbent on the Member State concerned to contest specifically the facts alleged in those complaints (see, to that effect, Case 272/86 Commission  v Greece  [1988] ECR 4875, paragraph 19, and Case C-494/01 Commission  v Ireland  [2005] ECR I-3331, paragraph 46).
43. According to the Court’s case-law, contracting authorities which have issued an invitation to tender for the supply of medical devices bearing the CE marking cannot reject, on grounds of protection of public health, the tender in respect of such products, directly and without following the safeguard procedure provided for in Articles 8 and 18 of Directive 93/42. If a contracting authority considers that the tender in respect of medical devices bearing the CE marking may compromise public health, it is required to inform the competent authority with a view to setting that safeguard procedure in motion (Case C-6/05 Medipac-Kazantzidis  [2007] ECR I-4557, paragraph 55).
46. According to the Court’s established case-law, even if the applicable national legislation itself complies with Community law, a failure to fulfil obligations may arise due to the existence of an administrative practice which infringes that law (see, in particular, Case C-278/03 Commission  v Italy  [2005] ECR I-3747, paragraph 13 and Case C‑441/02 Commission  v Germany  [2006] ECR I-3449, paragraph 47).
48. In order for a failure to fulfil obligations to be found on the basis of the administrative practice followed in a Member State, the Court has held that the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice; that administrative practice must be, to some degree, of a consistent and general nature; and, in order to find that there has been a general and consistent practice, the Commission may not rely on any presumption (Case C-156/04 Commission  v Greece  [2007] ECR I-4129, paragraph 50 and the case-law cited).
54. Where the Commission has adduced sufficient evidence to show that a Member State’s authorities have developed a repeated and persistent practice which is contrary to the provisions of a directive, it is incumbent on that Member State to challenge in substance and in detail the information thus produced and the consequences flowing therefrom ( Commission  v Ireland , paragraph 47), which is not so in the present case.
Baumann GmbH v Land Hessen.
Date: 2009-03-19
17. Furthermore, that interpretation is borne out by the list of conditions in point 4(a) of chapter I of Annex A to Directive 85/73 that might justify the application of the increase in question, conditions which, first, all relate to specific factors which serve to distinguish one establishment from another and, secondly, are open to judicial review (see to that effect, Case C-374/97 Feyrer  [1999] ECR I-5153, paragraphs 26 and 27).
20. As regards point 4(b) of chapter I of Annex A to Directive 85/73, it must be borne in mind, first, that that provision makes available to the Member States an option which they may exercise generally and at their own discretion, provided only that the fee does not exceed the actual costs incurred (see Feyrer , paragraph 27).
21. Secondly, a fee charged pursuant to that provision must not take the form of a standard amount (see, to that effect, Case C-270/07 Commission  v Germany  [2009] ECR I-0000, paragraph 32).
34. As is apparent from paragraph 31 of the judgment in Commission  v Germany , a fee charged pursuant to that provision cannot take the form of a standard amount, with the result that the overall amount will be apt to vary from case to case according to the actual costs incurred by the competent authority in respect of veterinary inspections and controls in particular establishments.
Sunplus Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2009-03-26
31. However, under Article 225(1) EC and the first subparagraph of Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only. The Court of First Instance has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, among others, Case C‑104/00 P DKV  v OHIM  [2002] ECR I‑7561, paragraph 22; Case C‑173/04 P Deutsche SiSi-Werke  v OHIM  [2006] ECR I‑551, paragraph 35; and the order of 13 February 2008 in Case C‑212/07 P Indorata-Serviços e Gestão  v OHIM , paragraph 38).
Mebrom NV v Commission of the European Communities.
Date: 2009-04-02
59. When interpreting a provision of a Community measure, account should be taken of its context and the objective pursued by the legislation at issue (see, to that effect, Case 327/82 Ekro  [1984] ECR 107, paragraph 11, and Case C‑323/03 Commission  v Spain  [2006] ECR I‑2161, paragraph 32).
72. It follows from the case-law of the Court of Justice that, even where the Commission has a broad discretion, the exercise of that discretion does not escape judicial review since the Community judicature has the task of verifying whether the relevant procedural rules have been complied with, whether the facts have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (see, to that effect, inter alia, Industrias Químicas del Vallés v Commission ,  paragraph 76 and the case-law cited).
85. The question whether the grounds of a judgment are insufficient or contradictory is a question of law which may, as such, be raised on appeal (see, to that effect, inter alia, Case C‑401/96 P Somaco  v Commission  [1998] ECR I‑2587, paragraph 53).
Hauptzollamt Bremen v J. E. Tyson Parketthandel GmbH hanse j.
Date: 2009-04-02
16. In that regard, it must be borne in mind, first, that the preamble to a Community act has no binding legal force and cannot be validly relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording (see, inter alia, Case C-136/04 Deutsches Milch-Kontor  [2005] ECR I‑10095, paragraph 32 and the case-law cited).
Luigi Scarpelli v NEOS Banca SpA.
Date: 2009-04-23
20. As regards the aims of Directive 87/102, it is clear from the recitals in the preamble thereto that it was adopted with the dual aim of ensuring both the creation of a common consumer credit market (recitals three to five) and the protection of consumers who avail themselves of such credit (recitals six, seven and nine) (Case C-208/98 Berliner Kindl Brauerei  [2000] ECR I-1741, paragraph 20, and Case C-264/02 Cofinoga  [2004] ECR I‑2157, paragraph 25).
24. Next it should be recalled that such a reading of Article 11 of Directive 87/102 is consistent with the nature of the harmonisation brought about by that directive. Thus, under the 25th recital in the preamble to that directive, Member States should not be prevented by that directive from retaining or adopting more stringent measures to protect the consumer, and therefore prescribes minimal harmonisation in matters of consumer credit. Member States are therefore free to lay down rules which are more favourable to consumers.
25. In the context of Article 11(2) of Directive 87/102, the Court has held that the aim of that directive consists in ensuring that a minimum standard of consumer protection in matters of consumer credit is complied with (Case C-429/05 Rampion and Godard  [2007] ECR I‑8017, paragraph 47).
26. That interpretation is also supported by Article 14(1) of the directive, which requires Member States to ensure that credit agreements do not derogate, to the detriment of the consumer, from the provisions of national law implementing the directive (see, to that effect, Rampion and Godard , paragraph 48).
Italian Republic (C-393/07) and Beniamino Donnici (C-9/08) v European Parliament.
Date: 2009-04-30
47. In addition, pursuant to the principle of the hierarchy of norms, the Parliament may not rely on a provision of its Rules of Procedure and its alleged practice in this area to interpret Article 6 of the 1976 Act in a manner which is contra legem  (see, to that effect, the order in Occhetto and Parliament v Donnici , paragraph 45).
48. It is clear that the Rules of Procedure are rules of internal organisation and cannot grant powers to the Parliament which are not expressly acknowledged by a legislative measure, in this case by the 1976 Act (see Joined Cases C‑200/07 and C‑201/07 Marra  [2008] ECR I‑0000, paragraph 38). It follows a fortiori  that the alleged institutional practice cannot derogate from Article 6 of that act.
55. Second, ‘tak[ing] note of the results declared officially’ means that the Parliament was required, for the purposes of its own decision when verifying the credentials of its members, to rely on the declaration made on 29 March 2007 by the National Electoral Office following the judgment of the Consiglio di Stato of 6 December 2006. That declaration is the result of a decision‑making process which complies with the national procedures by which the legal issues pertaining to that declaration were definitively settled and therefore constitutes a pre‑existing legal situation. The Court has already held that the use of the expression ‘take note’ in the context of the 1976 Act must be interpreted as indicating the Parliament’s complete lack of discretion in the matter (see, to that effect, Case C‑208/03 P Le Pen v Parliament  [2005] ECR I–6051, paragraph 50).
63. Moreover, in the absence of Community rules in this field, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that those rules are not less favourable than those governing rights which originate in domestic law (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, to that effect, Case C‑300/04 Eman and Sevinger  [2006] ECR I‑8055, paragraph 67).
67. It follows that an interpretation of Article 12 of the 1976 Act which would establish for the benefit of the Parliament a general power to review the official declaration made by the Member States’ authorities would not only be contrary to the wording of that article, but would also be incompatible with the principle embodied in Articles 5 EC and 7 EC that the powers of the Community and its institutions are limited to those specifically conferred on it (see, to that effect, Case C‑376/98 Germany v Parliament and Council  [2000] ECR I‑8419, paragraph 83, and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission  [2008] ECR I‑0000, paragraph 203 and the case‑law cited).