larimo/cjeu-paragraph-retrieval huggingface dataset:
Criminal proceedings against Artur Leymann and Aleksei Pustovarov.
Date: 2008-12-01
42. It is clear from Article 1(1) and (2) of the Framework Decision and from recitals 5, 6, 7 and 11 in its preamble that the purpose of the Framework Decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings based on the principle of mutual recognition. The Framework Decision aims in particular to facilitate and accelerate judicial cooperation (see Case C‑303/05 Advocaten voor de Wereld  [2007] ECR I‑3633, paragraph 28).
43. Article 27(2) of the Framework Decision lays down the specialty rule, according to which a person who has been surrendered may not be prosecuted, sentenced or otherwise deprived of liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
44. That rule is linked to the sovereignty of the executing Member State and confers on the person requested the right not to be prosecuted, sentenced or otherwise deprived of liberty except for the offence for which he or she was surrendered.
46. In order to assess the scope of Article 27(2) of the Framework Decision, and more specifically of the expression ‘offence other’ than that for which the person was surrendered, it is necessary to take into account the objective pursued by the Framework Decision.
48. That recital adds that traditional cooperation relations between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions.
49. Recital 6 in the preamble to the Framework Decision points out that the  European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition, which the European Council has referred to as the ‘cornerstone’ of judicial cooperation.
50. According to recital 10 in the preamble to the Framework Decision, the implementation of the mechanism of the European arrest warrant requires a high degree of confidence between the Member States.
51. The principle of mutual recognition, which underpins the Framework Decision, also means that, in accordance with Article 1(2) of the Framework Decision, the Member States are in principle obliged to act upon a European arrest warrant. They must or may refuse to execute a warrant only in the cases listed in Articles 3 and 4.
Theologos-Grigorios Chatzithanasis v Ypourgos Ygeias kai Koinonikis Allilengyis and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (OEEK).
Date: 2008-12-04
30. It should be borne in mind, in that regard, that it has been held, in relation to Directive 89/48, first, that it does not contain any limitation as regards the Member State in which an applicant must have acquired his professional qualifications and, second, that it is for the competent authorities awarding diplomas giving access to a regulated profession alone to verify, in the light of the rules applicable within the framework of their professional education and training system, whether the conditions necessary for their award are fulfilled, inter alia, those relating to the educational establishment in which the holder received his education and training (see, to that effect, Case C-274/05 Commission v Greece , paragraphs 28, 31 and 32).
31. It is also clear from the case-law that that interpretation of Directive 89/48 does not cast doubt on the responsibility of the Hellenic Republic for the content of teaching and the organisation of the education system, since the diploma in question is covered, in the context of Directive 89/48, not by the Greek education system but rather the education system of the Member State to which the competent authority which awarded the diploma belongs. It is, therefore, for that latter authority to ensure the quality of the training and education at issue (see, to that effect, Case C‑274/05 Commission  v Greece , paragraphs 36 and 40).
32. Furthermore, it has been held that the fact that a national of a Member State who wishes to pursue a regulated profession chooses to take up that profession in his preferred Member State cannot of itself constitute an abuse of the general system of recognition laid down by Directive 89/48, and that the rights of nationals of a Member State to choose the Member State in which they wish to acquire their professional qualifications is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the EC Treaty (see Case C-286/06 Commission  v Spain [2008] ECR I-0000, paragraph 72).
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2008-12-04
5. It should be noted that, according to established case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-135/05 Commission  v Italy  [2007] ECR I-3475, paragraph 36, and Case C-111/00 Commission  v Austria  [2001] ECR I-7555, paragraph 13).
Lahti Energia Oy.
Date: 2008-12-04
20. In that connection, as is clear from a comparison of the various language versions of Article 3(4) of Directive 2000/76, and as Lahti Energia, Hämeen ympäristökeskus, the Finnish Government and the Commission have submitted, a unit in which waste is thermally treated will be classified as an ‘incineration plant’ only if the substances resulting from the use of that thermal treatment process are subsequently incinerated.
24. As a preliminary point, it must be stated that, for the purposes of applying Directive 2000/76, where a co-generation plant comprises a number of boilers, each boiler and its associated equipment are to be regarded as constituting a separate plant (Case C-251/07 Gävle Kraftvärme  [2008] ECR I-0000, paragraph 33).
25. Therefore, in the same way, with respect to two units such as those at issue in the main proceedings, a separate examination of the gas plant and the power plant should in principle be carried out for the purposes of applying Directive 2000/76.
26. In accordance with the first subparagraph of Article 3(5) of Directive 2000/76, a plant whose main purpose is the generation of energy or production of material products, which either uses wastes as a regular or additional fuel or in which waste is thermally treated for the purpose of its disposal, is to be regarded as a co-incineration plant (see Gävle Kraftvärme , paragraph 35).
27. The second subparagraph of Article 3(5) states that, if co-incineration takes place in such a way that the main purpose of the plant is not the generation of energy or production of material products but rather the thermal treatment of waste, the plant is to be regarded as an incineration plant within the meaning of Article 3(4) ( Gävle Kraftvärme , paragraph 36).
28. Accordingly, it is clear from the wording of those provisions that a co-incineration plant constitutes a particular form of incineration plant and that it is on the basis of the main purpose of a plant that the assessment of whether it is an incineration plant or a co-incineration plant is to be made ( Gävle Kraftvärme , paragraph 37).
The classification of the gas plant
36. In those circumstances, there is no question of a substance resulting from the thermal treatment of waste in the gas plant which is incinerated in the power plant in order to complete a simple process of waste disposal. As the Finnish and Italian Governments have submitted, when the process is completed within the gas plant a product having the characteristics of a fuel is generated from waste.
37. Second, where, in a plant whose main purpose is to produce material products, in this case, gas products, waste is thermally treated in order to dispose of it, such a plant must be classified as a co-incineration plant in accordance with the scheme of Article 3(4) and (5) of Directive 2000/76 which makes the classification of a unit as an incineration or co-incineration plant dependent on its main purpose (see, to that effect, Gävle Kraftvärme , paragraph 40).
The classification of the power plant
Glencore Grain Rotterdam BV v Hauptzollamt Hamburg-Jonas.
Date: 2008-12-04
43. There is a difference between the customs documents required by Article 18(1) and (2) of Regulation No 3665/87 and the transport documents required by Article 18(3) which is based on the consideration that exporters may encounter difficulties in obtaining the customs documents from the authorities of the non‑member country of importation, upon whom they have no means of exerting pressure, whereas no such difficulty can exist with regard to the transport documents: in the case of a c.i.f. contract, the exporter retains a copy of the transport documents as the party arranging carriage, while in the case of an f.o.b. contract he may easily stipulate as part of the contract that the purchaser must furnish a certified true copy of those documents (see, to that effect, Case C‑155/89 Philipp Brothers  [1990] ECR I‑3265, paragraph 27).
Verein Radetzky-Orden v Bundesvereingigung Kameradschaft "Feldmarschall Radetzky".
Date: 2008-12-09
13. The concept of ‘genuine use’ within the meaning of Article 12(1) of the directive must be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark. Such use must be actual use, consistent with the essential function of a trade mark, which is to guarantee the identity of the origin of goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin (Case C‑40/01 Ansul  [2003] ECR I‑2439, paragraphs 35 and 36).
14. As the Court has stated, it follows that the concept of ‘genuine use’ of the mark entails use of the mark by the proprietor on the market for the goods or services protected by that mark and not just internal use within the undertaking concerned. The protection that the mark confers and the consequences of registering it in terms of enforceability vis-à-vis third parties cannot continue to operate if the mark loses its commercial raison d’être, which is to create or preserve an outlet for the goods or services that bear the sign of which it is composed, as distinct from the goods or services of other undertakings ( Ansul , paragraph 37).
22. In any event, in accordance with the finding of the Court in paragraph 37 of Ansul , and as the Advocate General pointed out in point 30 of his Opinion, use of a trade mark by a non-profit-making association during purely private ceremonies or events, or for the advertisement or announcement of such ceremonies or events, constitutes an internal use of the trade mark and not ‘genuine use’ for the purposes of Article 12(1) of the directive.
A.T. v Finanzamt Stuttgart-Körperschaften.
Date: 2008-12-11
21. By imposing that fiscal neutrality requirement with regard to the shareholders of the acquired company, Directive 90/434 aims – as stated in the first and fourth recitals in its preamble – to ensure that an exchange of shares concerning companies from different Member States is not hampered by restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States.
28. Moreover, to make the fiscal neutrality provided for in Article 8(1) and (2) of Directive 90/434, in relation to the exchange of shares involving companies from different Member States, subject to the additional condition that the acquiring company carry over the historical book value of the shares transferred in its tax balance sheet would be contrary to the purpose of the directive, which is to eliminate fiscal barriers to cross-border restructuring of undertakings, by ensuring that any increases in the value of shares are not taxed until their actual disposal (see, in that regard, Case C‑321/05 Kofoed  [2007] ECR I‑5795, paragraph 32).
30. To the extent that the German Government intends thereby to assert that the German legislation at issue in the main proceedings is necessary in order prevent taxation from being circumvented once and for all – even at a stage later than the exchange of shares – it should be recalled that the Court has already held that the Member States must grant the tax advantages provided for under Directive 90/434 in respect of the exchanges of shares referred to in Article 2(d) thereof, unless those operations have as their principal objective or as one of their principal objectives tax evasion or tax avoidance within the meaning of Article 11(1)(a) of the directive (Case C-28/95 Leur-Bloem  [1997] ECR I‑4161, paragraph 40).
31. It is, however, only by way of exception and in specific cases that Member States may, pursuant to Article 11(1)(a) of Directive 90/434, refuse to apply or withdraw the benefit of all or any part of the provisions of the directive ( Kofoed , paragraph 37). In order to determine whether the planned operation has such an objective, the competent national authorities cannot confine themselves to applying predetermined general criteria but must carry out a general examination of each particular case ( Leur-Bloem , paragraph 41).
35. In that regard, it should be pointed out that Directive 90/434 itself aims, in accordance with the fourth recital in its preamble, to safeguard the financial interests of the State of the acquired company. Thus, the second subparagraph of Article 8(2) of Directive 90/434 provides that the application of Article 8(1) is not to prevent the Member States from taxing the gain arising out of the subsequent transfer of securities received in the same way as the gain arising out of the transfer of securities existing before the acquisition.
Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Fujitsu Siemens Computers GmbH.
Date: 2008-12-11
55. Fourthly, as regards the taking into account of the renown of the earlier marks in assessing the similarities of the signs at issue, it must be pointed out that, having found, in paragraph 48 of the judgment under appeal, first, that the dominant element of the mark applied for is the word ‘activy’ and, secondly, that the descriptive element of that mark is the word ‘gateway’ – which constitutes, as was stated in paragraph 49 of this judgment, an assessment of a factual nature – the Court of First Instance carried out an analysis in which it took account, in particular, of the distinctive and dominant elements of the marks at issue.
56. Since the assessment of the similarities of the signs at issue led the Court of First Instance to the conclusion that the marks at issue are different, the Court was fully entitled to find, in paragraph 51 of the judgment under appeal, that it was not necessary to make apparent the degree of renown of the earlier marks which it took into consideration in that assessment.
57. Likewise, since the signs at issue are not similar or identical, Gateway is not justified in claiming that the Court of First Instance failed to have regard to SABEL  and Canon .
Commission of the European Communities v Kingdom of Spain.
Date: 2008-12-18
23. In order to rule on the substance of the first complaint raised by the Commission, it should be borne in mind that the Court of Justice has already had occasion to hold that the Second Directive seeks, pursuant to Article 44(2)(g) EC, to coordinate the safeguards which, for the protection of the interests of members and others, are required of companies withi n the meaning of the second paragraph of Article 48 EC with a view to making such safeguards equivalent. According to the second recital in the preamble thereto, the Second Directive is therefore intended to ensure minimum equivalent protection for both shareholders and creditors of public limited liability companies (Case C-42/95 Siemens  [1996] ECR I-6017, paragraph 13).
24. As regards more particularly the protection of shareholders when capital is increased by consideration in cash, Article 29(1) of the Second Directive provides clearly, precisely and unconditionally that the shares must be offered on a pre-emptive basis to shareholders in proportion to the capital represented by their shares (see, to that effect, Case C-381/89 Syndesmos Melon tis Eleftheras Evangelikis Ekklisias and Others  [1992] ECR I-2111, paragraph 39).
26. It must be pointed out, however, that although the right of pre-emption granted to shareholders does not admit of any exception other than that expressly laid down in Article 29(4) of the directive ( Syndesmos Melon tis Eleftheras Evangelikis Ekklisias and Others , paragraph 40), the fact remains that, as is apparent from the second recital and the judgment in Siemens , the Second Directive lays down minimum requirements for the protection of shareholders and creditors of public limited liability companies, by leaving the Member States free to adopt provisions that are more favourable to them, which provide, inter alia, for more restrictive conditions on withdrawing the right of pre-emption.
32. Secondly, the effect of the Commission’s interpretation would be to render Article 29(4) of the Second Directive redundant, since under that provision the issue price has to be justified by the directors’ report, although it does not have to be set in accordance with the market value of the shares in question.
33. To require that the issue price of new shares must not be below their market value would have the effect that, even if that price were justified by the directors’ report, the general meeting could not apply it without infringing the principle of equal treatment referred to in Article 42 of the Second Directive.
54. In that regard, it must be borne in mind that, according to settled case-law, the need to ensure that Community law is fully applied requires Member States not only to bring their legislation into conformity with Community law but also to do so by adopting rules of law capable of creating a situation which is sufficiently precise, clear and transparent to allow individuals to know the full extent of their rights and rely on them before the national courts (Case 162/99 Commission  v Italy  [2001] ECR I-541, paragraph 22 and the case-law cited).
Ruben Andersen v Kommunernes Landsforening.
Date: 2008-12-18
25. It must be added that the power thus granted to the Member States by the directive is in accordance with the Court’s case-law that Member States may leave the implementation of the social policy objectives envisaged by a directive in this area in the first instance to management and labour (see, in particular, Case 143/83 Commission  v Denmark  [1985] ECR 427, paragraph 8; Case 235/84 Commission  v Italy  [1986] ECR 2291, paragraph 20; and Case C‑187/98 Commission  v Greece  [1999] ECR I‑7713, paragraph 46).
40. According to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (see, in particular, Case 292/82 Merck  [1983] ECR 3781, paragraph 12, and Case C‑442/05 Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien  [2008] ECR I‑0000, paragraph 30).
Afton Chemical Ltd v The Commissioners for Her Majesty's Revenue & Customs.
Date: 2008-12-18
25. In that regard, it must be recalled that, so far as concerns the period ending on 31 December 2003, the Member States were obliged, under Article 1(1) of Directive 92/81, to impose on ‘mineral oils’ within the meaning thereof a harmonised excise duty. From 1 January 2004, the Member States were thenceforth obliged, under Article 1 of Directive 2003/96, which repealed Directive 92/81, to tax ‘energy products’ within the meaning of Directive 2003/96, which is intended to impose, as stated in recitals 2 and 3 of its preamble, minimum levels of taxation at Community level for most of those energy products rather than for mineral oils alone (see, to that effect, Joined Cases C‑145/06 and C‑146/06 Fendt Italiana [2007] ECR I‑5869, paragraph 32).
40. In actual fact, it is apparent, on the contrary, that the Community legislature intended to assimilate to motor fuels the additives added to them, whatever their nature, simply because they are added to those fuels, in order to make them subject to the same taxation regime as motor fuels.
43. That conclusion cannot be undetermined by the provisions of Article 8(1)(a) of Directive 92/81 or Article 2(4)(b) of Directive 2003/96, according to which mineral oils and energy products, used for purposes other than as motor fuels or heating fuels, must, respectively, be exempted from the harmonised excise duty or excluded from the scope of Directive 2003/96. Indeed, to apply those provisions to fuel additives, such as those at issue in the main proceedings, which are subject to an express requirement for taxation under the first sentence of the first subparagraph of Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 would deprive those provisions of any useful effect (see, by analogy, Case C‑346/97 Braathens [1999] ECR I‑3419, paragraphs 24 and 25, and Case C‑437/01 Commission  v Italy [2003] ECR I‑9861, paragraphs 31 to 33).