larimo/cjeu-paragraph-retrieval huggingface dataset:
Daewoo Electronics Manufacturing España SA (Demesa) (C-183/02 P) and Territorio Histórico de Álava - Diputación Foral de Álava (C-187/02 P) v Commission of the European Communities.
Date: 2004-11-11
44. It should be borne in mind, first, that in view of the mandatory nature of the review of State aid by the Commission under Article 93 of the Treaty, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article and, second, that a diligent businessman should normally be able to determine whether that procedure has been followed (Case C-5/89 Commission  v Germany  [1990] ECR I-3437, paragraph 14; Case C-169/95 Spain  v Commission  [1997] ECR I-135, paragraph 51; and Case C-24/95 Alcan Deutschland  [1997] ECR I-1591, paragraph 25).
45. In particular, where aid is paid without prior notification to the Commission, so that it is unlawful under Article 93(3) of the Treaty, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (see Alcan Deutschland , cited above, paragraphs 30 and 31).
51. In the light of the terms of Decision 93/337, the appellant cannot therefore claim the possibility, which cannot be excluded (see Commission  v Germany , cited above, paragraph 16), for the recipient of unlawful aid to rely on exceptional circumstances on the basis of which it legitimately assumed the aid to be lawful.
59. It must be borne in mind that to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to review of the findings of law on the pleas argued before the Court of First Instance (see, in particular, Case C-136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I-1981, paragraph 59; Case C-7/95 P Deere  v Commission  [1998] ECR I‑3111, paragraph 62; and Case C-217/01 P Hendrickx  v Cedefop  [2003] ECR I‑3701, paragraph 37).
Ramondín SA and Ramondín Cápsulas SA (C-186/02 P) and Territorio Histórico de Álava - Diputación Foral de Álava (C-188/02 P) v Commission of the European Communities.
Date: 2004-11-11
44. The Court of First Instance rightly observed that a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated (see, inter alia, Case C‑110/97 Netherlands v Council [2001] ECR I‑8763, paragraph 137 and the cases cited).
46. In doing that, the Court of First Instance undertook an assessment of the facts which does not, unless the clear sense of the evidence produced to it was distorted, constitute a question of law which is subject, as such, to review by the Court of Justice (see inter alia Joined Cases C‑280/99 P to C‑282/99 P Moccia Irme and Others v Commission  [2001] ECR I‑4717, paragraph 78, and Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 285).
60. It must be borne in mind that to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see, in particular, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, Case C‑7/95 P John Deere v Commission [1998] ECR I‑3111, paragraph 62, and Case C‑217/01 P Hendrickx  v Cedefop  [2003] ECR I‑3701, paragraph 37).
Portuguese Republic v Commission of the European Communities.
Date: 2004-11-11
35. In that regard, in order to ascertain whether measures are acts within the meaning of Article 230 EC, it is necessary to look to their substance, as the form in which they are cast is, in principle, immaterial in this respect. Only a measure the legal effects of which are binding on, and are capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 230 EC (see, to that effect, Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Case C-308/95 Netherlands v Commission [1999] ECR I-6513, paragraph 26).
Johanna Maria Delahaye, née Delahaye v Ministre de la Fonction publique et de la Réforme administrative.
Date: 2004-11-11
30. It should be recalled that, according to the Court’s case-law, the transfer of an economic activity from a legal person governed by private law to a legal person governed by public law is in principle within the scope of Directive 77/187. Only the reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities is excluded from that scope (Case C-298/94 Henke  [1996] ECR I-4989, paragraph 14, and Mayeur , paragraphs 29 to 34).
32. Since Directive 77/187 is intended to achieve only partial harmonisation of the field in question (see, inter alia, Case 324/86 Tellerup  [1988] ECR 739 (‘Daddy’s Dance Hall’) , paragraph 16, and Case C-4/01 Martin and Others  [2003] ECR I-0000, paragraph 41), it does not preclude, in the event of a transfer of an activity to a legal person governed by public law, the application of national law which prescribes the termination of contracts of employment governed by private law (see, to that effect, Mayeur , paragraph 56). However, such a termination constitutes, in accordance with Article 4(2) of Directive 77/187, a substantial change in working conditions to the detriment of the employee resulting directly from the transfer, so that the termination of those contracts of employment must, in such circumstances, be regarded as resulting from the action of the employer (see Mayeur , paragraph 56).
34. Moreover, the competent authorities responsible for applying and interpreting the national law relating to public employees are obliged to do so as far as possible in the light of the purpose of Directive 77/187. It would be contrary to the spirit of that directive to treat an employee taken over from the transferor without taking length of service into account, in so far as the national rules governing the position of State employees take a State employee’s length of service into consideration for calculating his remuneration.
Maatschap Toeters and M. C. Verberk v Productschap Vee en Vlees.
Date: 2004-11-11
35. It corresponds also to the rule used for calculating time‑limits in court proceedings. Under Article 80(1)(b) of the Rules of Procedure of the Court of Justice, a period expressed in weeks ends with the expiry of whichever day in the last week is the same day of the week as the day during which the event or action from which the period is to be calculated occurred or took place (see, to that effect, Case 152/85 Misset  v Council  [1987] ECR 223, paragraphs 7 and 8).
43. As the Advocate General pointed out in paragraph 33 of his Opinion, Article 50a clearly means that an application can be regarded as having been ‘lodged’ only when its addressee receives it. It is not therefore sufficient that an application was posted within the time‑limit.
47. In that regard, it is appropriate to make clear that, when the Community legislature fixes a mandatory time‑limit for lodging an application, the barring of claims which the failure to observe that time‑limit entails is not a penalty, but merely the consequence of failure to fulfil the conditions laid down by the law (see, to that effect, Case 266/84 Denkavit  [1986] ECR 149, paragraph 21).
51. In that regard, it is to be remembered that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, for example, Joined Cases C‑133/93, C‑300/93 and C-362/93 Crispoltoni and Others  [1994] ECR I‑4863, paragraph 41; Case C-157/96 National Farmers’ Union and Others  [1998] ECR I-2211, paragraph 60, and Case C-375/96 Zaninotto  [1998] ECR I‑6629, paragraph 63).
Anna Fascicolo and Others v Regione Puglia and Others (C-10/02) and Grazia Berardi and Others v Azienda Unità Sanitaria Locale BA/4 and Others (C-11/02).
Date: 2004-11-18
30. That provision confers on every Member State discretion to specify acquired rights, a discretion subject to only one condition, namely, that each Member State should recognise the acquired rights of those doctors who do not hold a general medical practitioner's diploma but who, before 1 January 1995, were recognised in that Member State as having a diploma, certificate or other evidence of formal qualification issued to them in another Member State and who, also before that date, obtained the right to exercise the activities of general medical practitioner under the national social security scheme (Joined Cases C-69/96 to C-79/96 Garofalo and Others  [1997] ECR I-5603, paragraphs 29 and 30).
32. Second, that requirement is intended to avoid situations in which doctors who have enjoyed the freedom of establishment guaranteed by the Community directives and, before 1 January 1995, acquired a right to practise general medicine under the social security scheme of a Member State, are deprived of that right because they do not hold the new diplomas, certificates or other evidence of qualification provided for by Directive 93/16 (see Garofalo and Others , paragraph 31).
Commission of the European Communities v Hellenic Republic.
Date: 2004-11-18
21. It should be noted at the outset that whilst the first subparagraph of Article 4 of the directive does not specify the actual content of the measures which must be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it is none the less true that it is binding on the Member States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need for such measures (Case C‑365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 67).
22. From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the directive, then, the direct inference may not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligations under that provision to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the environment.  However, if that situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by that provision ( Commission  v Italy , cited above, paragraph 68).
23. It must also be recalled that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-455/00 Commission  v Italy  [2002] ECR I-9231, paragraph 21, and Case C-348/02 Commission  v Italy  [2003] ECR I‑0000, paragraph 7).
KPN Telecom BV v Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA).
Date: 2004-11-25
31. Moreover, as the Court has held, albeit in another context, but which relates none the less to the application of Article 6(2) of the Directive, that provision embraces the principle that every service provider must maintain a list of its own customers who do not wish to be listed in the general directory and not disclose the names of those customers to the publisher of the general telephone directory (Case C-146/00 Commission v France  [2001] ECR I-9767 paragraph 68).
35. In light of that, and as the Commission argues and the Advocate General notes at point 28 of his Opinion, there may be differences at national level in the demand among users of voice telephony services. Inasmuch as, by using the words ‘relevant information’, the directive does not seek complete harmonisation of all the criteria which may appear necessary to identify subscribers, the Member States retain competence for determining whether in a specific national context certain additional data ought to be made available to third parties.
José Martí Peix SA v Commission of the European Communities.
Date: 2004-12-02
17. Where the omission occasioning the breach of the provision of Community law persists, the irregularity is ‘continuous’ for the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95.
29. None the less, if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but its operative part appears well founded on other legal grounds the appeal must be dismissed (Case C-30/91 P Lestelle  v Commission  [1992] ECR I-3755, paragraph 28; Case C-210/98 Salzgitter v Commission  [2000] ECR I‑5843, paragraph 58 and Case C-312/00 P Commission  v Camar and Tico  [2002] ECR I-11355, paragraph 57).
The Queen, on the application of Approved Prescription Services Ltd v Licensing Authority.
Date: 2004-12-09
17. A medicinal product is essentially similar, within the meaning of Article 10(1)(a)(iii) of Directive 2001/83, to an original medicinal product where it satisfies the criteria of having the same qualitative and quantitative composition in terms of active principles, of having the same pharmaceutical form and of being bioequivalent, unless it is apparent in the light of scientific knowledge that it differs significantly from the original product as regards safety or efficacy (Case C‑368/96 Generics (UK) and Others  [1998] ECR I‑7967, paragraph 36, concerning an equivalent provision in Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (OJ, English Special Edition 1965-1966, p. 20).
25. The Court held that, if an applicant is entitled under the proviso to refer to the data relating to a variant B which differs from the reference medicinal product in the route of its administration or dose, since the differences in those two fact ors generally imply that products A and B are not bioequivalent, it must, a fortiori , likewise be entitled to do so where the two products are distinguishable only by their different bioavailability, even though the route of administration and dose remain unchanged (see Novartis Pharmaceuticals , paragraph 66).
Commission of the European Communities v Kingdom of Spain.
Date: 2004-12-09
24. A derogation under Article 8 of the directive, according to Article 9(1) thereof, can be made only where there is no other satisfactory solution and for reasons exhaustively listed in Article 9(1)(a) to (c) (see, inter alia, Case 262/85 Commission  v Italy  [1987] ECR 3073, paragraph 7), including serious damage to crops.
34. It should be noted that, for a derogation from the prohibition of the use of limed twigs to capture birds, instituted in a Member State, to comply with Article 9(1)(c) of the directive, it must, in any event, be applied selectively and cover the capture of birds in small numbers only (see, to that effect, Case 252/85 Commission  v France  [1988] ECR 2243, paragraph 28).
36. In that regard, the Second report (of the Commission) on the application of Directive 79/409/EEC on the conservation of wild birds (COM(93) 572 final, 24 November 1993) indicates that, according to the work of the ORNIS committee, ‘small numbers’ should be understood as any sample of less than 1% of the total annual mortality of the population in question (average value) for those species which are not to be hunted and in the order of 1% for those species which may be hunted, and ‘population in question’ is to be understood, with regard to migratory species, as the population of those regions from which come the main contingents passing through the region to which the derogation applies during its period of application. The ORNIS committee is the Committee for the Adaptation to Technical and Scientific Progress, instituted under Article 16 of the directive. It consists of representatives of the Member States and is chaired by a representative of the Commission.
41. Although it is true that the criteria of small numbers as defined by the ORNIS committee is not legally binding on the Member States concerned, in this instance it can, by reason of the acknowledged scientific value of that committee’s opinions and the absence before the Court of any element of scientific proof to the contrary, be used by the Court as a basis of reference for assessing whether the derogation granted by the defendant Member State under Article 9(1)(c) of the directive fulfils the condition that the capture of the birds in question should be carried out in small numbers (see, to this effect, Case C-3/96 Commission  v Netherlands  [1998] ECR I-3031, paragraphs 69 and 70).
43. The Commission’s complaint that hunting by means of the ‘parany’ does not fulfil the requirements of Article 9(1)(c) of the directive must therefore also be upheld.
Commission of the European Communities v Greencore Group plc.
Date: 2004-12-09
36. Although, as Greencore argues, the Court of Justice has no jurisdiction to review the assessment of the facts made by the Court of First Instance, it does have jurisdiction pursuant to Article 225 EC to review the definition of the legal nature of those facts and the determination of the legal consequences made by the Court of First Instance (see, to that effect, Case C-136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I-1981, paragraph 49, and Case C-7/95 P John Deere  v Commission  [1998] ECR I-3111, paragraph 21).
39. Indeed, if, as the Commission maintains, payment of the principal without the interest requested had to be classified as an implied refusal to pay that interest, the consequence of that circumstance might be that the letter of 11 February 2002 must be held to be a measure merely confirming a previous decision which was not challenged within the prescribed period.  In that case, in accordance with the Court of Justice’s case-law, that letter would not be a measure against which an action for annulment could be brought (see, to that effect, Case C-480/93 P Zunis Holding and Others  v Commission  [1996] ECR I-1, paragraph 14).
44. First, it has to be stated that any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 230 EC for a declaration that it is void (see, inter alia, Joined Cases C-68/94 and C-30/95 France and Others  v Commission  [1998] ECR I-1375, paragraph 62, and Case 60/81 IBM  v Commission  [1981] ECR 2639, paragraph 9).
Commission of the European Communities v French Republic.
Date: 2004-12-09
25. As pointed out in paragraph 19 of this judgment, the existence of a failure to fulfil obligations must be considered in relation to the situation prevailing at the end of the period laid down for compliance with the reasoned opinion and changes made thereafter cannot be taken into account. In this case, it is common ground that the period laid down in that opinion, and extended at the request of the French authorities, expired on 27 October 2000. The assessment as to whether or not there has been a failure to fulfil obligations must therefore relate to the French legislation in force on that date.
57. It must be borne in mind that, according to the very terms of the third paragraph of Article 161 EA, the Member States are entitled to choose the form and methods for implementing directives which best ensure the result to be achieved by the directives. It is clear from that provision that the transposition of a directive into national law does not necessarily require legislative action in each Member State. Thus, the Court has repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision (see, to that effect, Case C-233/00 Commission  v France  [2003] ECR I-6625, paragraph 76, and Case C-296/01 Commission  v France  [2003] ECR I-0000, paragraph 55).
Hauptzollamt Neubrandenburg v Jens Christian Siig.
Date: 2004-12-15
20. It follows that it is the transport operation itself, carried out by the means of transport concerned, which is decisive and not the final destination of the goods or persons transported.
Commission of the European Communities v Republic of Austria.
Date: 2004-12-16
7. It follows from settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-147/00 Commission  v France  [2001] ECR I‑2387, paragraph 26, and Case C-173/01 Commission  v Greece  [2002] ECR I‑6129, paragraph 7).
13. In that connection, it should be recalled that, by virtue of the Court’s settled case-law, a Member State may not plead situations in its internal legal order, including those resulting from its federal organisation, in order to justify failure to comply with the obligations and time-limits laid down in a directive (see, inter alia, Case C-111/00 Commission  v Austria  [2001] ECR I-7555, paragraph 12). Though each Member State may freely allocate areas of internal legal competence as it sees fit, the fact remains that it alone is responsible to the Community under Article 226 EC for compliance with obligations arising under Community law (Case C-87/02 Commission  v Italy [2004] ECR I-0000, paragraph 38).