larimo/cjeu-paragraph-retrieval huggingface dataset:
Centro Hospitalar de Setúbal EPE and Serviço de Utilização Comum dos Hospitais (SUCH) v Eurest (Portugal) — Sociedade Europeia de Restaurantes Lda.
Date: 2014-06-19
12. The conditions for such an award have been established and developed by the case-law of the Court, which has held that a contracting authority is exempted from initiating a procedure for the award of a public contract in accordance with Directive 2004/18 where it exercises over the contractor control similar to that which it exercises over its own departments and the tenderer carries out the essential part of its activities with the contracting authorities to which it belongs (see, to that effect, Case C‑107/98 Teckal EU:C:1999:562, paragraph 50).
13. The Court has also held that the investment, however small, of a private undertaking in the capital of an undertaking of which the awarding authority also forms part prevents, in any event, the awarding authority from being able to exercise a control over it similar to that which it exercises over its own departments, given that any private capital investment in an undertaking follows considerations proper to private interests and pursues objectives of a different kind from those pursued by a public authority (see Case C‑26/03 Stadt Halle and RPL Lochau  EU:C:2005:5, paragraphs 49 and 50).
Portuguese law
33. In that regard, it must be borne in mind, firstly, that the fact that the contractor has the legal form of an association governed by private law and that it is non-profit is irrelevant as regards the application of the rules of EU law on public contracts and, in consequence, of the case-law of the Court concerning the exception for in-house operations. Such a fact does not preclude the contractor in question from carrying out an economic activity (see, to that effect, Case C‑573/07 Sea EU:C:2009:532, paragraph 41, and Case C‑305/08 CoNISMa EU:C:2009:807, paragraph 45).
36. One of the reasons which led the Court to the findings established in the judgment in Stadt Halle and RPL Lochau EU:C:2005:5 was based not on the legal form of the private entities forming part of the contractor or on their commercial purpose, but on the fact that those entities obeyed considerations particular to their private interests, which were different in nature from that of the objectives of public interest pursued by the awarding authority. For that reason, that authority could not exercise control over the contractor similar to that which it exercised over its own services (see, to that effect, Stadt Halle and RPL Lochau EU:C:2005:5, paragraphs 49 and 50).
38. Another reason which led the Court to the findings in the judgment in Stadt Halle and RPL Lochau EU:C:2005:5 is that the direct award of a contract would offer a private undertaking with a capital presence in that contractor an advantage over its competitors (see, to that effect, Stadt Halle and RPL Lochau EU:C:2005:5, paragraph 51).
42. The fact that the participation of private partners in the contractor is merely as a minority is not sufficient to call those conclusions into question (see, to that effect, Stadt Halle and RPL Lochau EU:C:2005:5, paragraph 49).
Karen Millen Fashions Ltd v Dunnes Stores and Dunnes Stores (Limerick) Ltd.
Date: 2014-06-19
25. The reference to the overall impression produced on the informed user by ‘any design’ which has been made available to the public indicates that Article 6 must be interpreted as meaning that the assessment as to whether a design has individual character must be conducted in relation to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously.
26. As observed by the United Kingdom Government and the European Commission, that interpretation is in keeping with the case-law in which it has been held that, when possible, the informed user will make a direct comparison between the designs at issue (see judgment in PepsiCo  v Grupo Promer Mon Graphic , C‑281/10 P, EU:C:2011:679, paragraph 55, and Neuman and Others  v José Manuel Baena Grupo , C‑101/11 P and C‑102/11 P, EU:C:2012:641, paragraph 54), because that type of comparison actually relates to the impression produced on that user by earlier individualised and defined designs, as opposed to an amalgam of specific features or parts of earlier designs.
27. It is true that the Court also held that it cannot be ruled out that a direct comparison might be impracticable or uncommon in the sector concerned, in particular because of specific circumstances or the characteristics of the items which the earlier mark and the design at issue represent. It observed in that context that, in the absence of any precise indications to that effect in Regulation No 6/2002, the EU legislature cannot be regarded as having intended to limit the assessment of potential designs to a direct comparison (see PepsiCo  v Grupo Promer Mon Graphic (EU:C:2011:679), paragraphs 55 and 57, and Neuman and Others  v José Manuel Baena Grupo (EU:C:2012:641), paragraphs 54 and 56).
28. It should be remembered, however, that although the Court acknowledged the possibility of an indirect comparison of the designs at issue, it went on to hold merely that the General Court had not erred in basing its reasoning on an imperfect recollection of the overall impression produced by those designs (see PepsiCo  v Grupo Promer Mon Graphic  (EU:C:2011:679), paragraph 58, and Neuman and Others  v José Manuel Baena Grupo  (EU:C:2012:641), paragraph 57).
31. Thus, regarding, first, the arguments based on recitals 14 and 19 in the preamble to Regulation No 6/2002, which use the expressions ‘the existing design corpus’ and ‘in comparison with other designs’, it should be borne in mind that the preamble to a Community act has no binding legal force and cannot be 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 ( Deutsches Milch-Kontor , C‑136/04, EU:C:2005:716, paragraph 32 and the case‑law cited).
Stanislav Gross v Hauptzollamt Braunschweig.
Date: 2014-07-03
17. At the outset, it should be noted that the aim of Directive 92/12 is to lay down a number of rules on the holding, movement and monitoring of products subject to excise duty, in particular so as to ensure that chargeability of excise duties is identical in all the Member States. That harmonisation makes it possible, in principle, to avoid double taxation in relations between Member States ( Scandic Distilleries , C‑663/11, EU:C:2013:347, paragraphs 22 and 23).
20. It should be borne in mind that, in the procedure laid down in Article 267 TFEU for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, even if, formally, the question referred for a preliminary ruling relates directly to the interpretation of Article 9 of Directive 92/12, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating the case pending before it, whether or not the national court has referred to them in the wording of its questions. It is, in that regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in relation to the subject-matter of the dispute (see Worten , C‑342/12, EU:C:2013:355, paragraphs 30 and 31).
21. It is not in dispute that Mr Gross had repeatedly obtained the products at issue from other persons after those products had been unlawfully brought into German fiscal territory (see, to that effect, Salumets and Others , C‑455/98, EU:C:2000:352, paragraph 19), in order to resell them and thereby derive income.
27. That conclusion is also supported by Article 33(3) of Council Directive 2008/118 of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12 (OJ 2009 L 9, p.12), which simplifies the provision made under Article 7 of Directive 92/12 by referring solely to the person ‘to whom the goods are delivered in the other Member State’ ( Metro Cash & Carry Danmark , C‑315/12, EU:C:2013:503, paragraph 36).
Fonnship A/S v Svenska Transportarbetareförbundet and Facket för Service och Kommunikation (SEKO) and Svenska Transportarbetareförbundet v Fonnship A/S.
Date: 2014-07-08
24. The provisions of Regulation No 4055/86 are an integral part of the legal order of all of the States that are parties to the EEA Agreement by virtue of Article 7(a) of the EEA Agreement and Annex XIII thereto. That regulation and those provisions of the EEA Agreement contain rules relating to the applicability of the freedom to provide services in the shipping industry between States that are parties to the EEA Agreement and between those States and third countries (see, to that effect, Corsica Ferries (France) , C‑49/89, EU:C:1989:649, paragraph 13; Commission v Italy , C‑295/00, EU:C:2002:100, paragraph 9; and Sea-Land Service and Nedlloyd Lijnen , C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 30).
35. The absence in Article 1(1) of a similar requirement for the nationals of a State that is a party to the EEA Agreement who operate from an establishment situated in the EEA shows that the legislature considered that that category of persons displays in itself a sufficiently close connection with the law of the EEA to be included in the scope ratione personae of that regulation, and regardless of the flag flown by their vessels (see, to that effect, Corsica Ferries , C‑18/93, EU:C:1994:195, paragraph 29).
41. In that case, any restriction which, without objective justification, is liable to prohibit, impede or render less attractive the provision of those services must be declared incompatible with EU law. Where it is applicable, Regulation No 4055/86 transposes, in essence, the rules of the treaty relating to the freedom to provide services and the case-law relating thereto ( Commission v France , C‑381/93, EU:C:1994:370, paragraphs 13 and 16; Commission v Italy , EU:C:2002:100, paragraphs 9 and 10; Sea-Land Service and Nedlloyd Lijnen , EU:C:2002:364, paragraphs 31 and 32; Geha Naftiliaki and Others , C‑435/00, EU:C:2002:661, paragraphs 20 and 21; and Commission v Spain , C‑18/09, EU:C:2010:58, paragraph 12). That case-law includes the judgment in Laval un Partneri  (C‑341/05, EU:C:2007:809) relating to the compatibility of industrial action with the freedom to provide services.
Markus D. and G.
Date: 2014-07-10
28. It is settled case-law that a product is a medicinal product if it falls within either of those two definitions (the judgment in HLH Warenvertrieb and Orthica , C‑211/03, C‑299/03 and C‑316/03 to C‑318/03, EU:C:2005:370, paragraph 49).
29. While those two provisions of Directive 2001/83 are separated by the word ‘or’, they cannot be regarded as unconnected with each other (see, to that effect, the judgment in Upjohn , C‑112/89, EU:C:1991:147, paragraph 18) and must, therefore, as observed by the Advocate General at point 37 of his Opinion, be read conjunctively. That presupposes that the various elements of those provisions cannot be read in such a way as to render one element in conflict with another.
32. However, it is settled case-law that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, the judgments in Merck , Case 292/82, EU:C:1983:335, paragraph 12, and in Brain Products , C‑219/11, EU:C:2012:742, paragraph 13).
36. The expressions ‘restore’ and ‘correct’ physiological functions in the definition of a medicinal product in Article 1(2)(b) of Directive 2001/83 do not evade such an interpretation either. Those expressions must be understood as reflecting the legislature’s intention to highlight the beneficial effects which the substances concerned are meant to have on the functioning of the human organism and, as a consequence — be it immediately or over a period of time — on human health, even in the absence of disease (see, with regard to the latter point, the judgment in Upjohn , EU:C:1991:147, paragraph 19).
42. Second, it should be recalled that, according to established case-law, for the purpose of determining whether a product falls within the definition of a medicinal product for the purposes of Directive 2001/83, the national authorities, acting under the supervision of the courts, must decide on a case-by-case basis, taking account of all the characteristics of the product, in particular its composition, its pharmacological, immunological or metabolic properties, to the extent to which they can be established in the present state of scientific knowledge, the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail (the judgments in Upjohn , EU:C:1997:147, paragraph 23, and BIO Naturprodukte , C‑27/08, EU:C:2009:278, paragraph 18).
49. It is sufficient in that regard to note the objective of imposing criminal law sanctions in respect of the introduction on the market of harmful substances such as those at issue in the main proceedings cannot have any effect of the definition of the term medicinal product given in Directive 2001/83 or on any classification of such substances as medicinal products on the basis of that definition.
European Commission v Portuguese Republic.
Date: 2014-07-17
45. On this point, it must be recalled that the Statute of the Court of Justice and its Rules of Procedure make no provision for the parties to submit observations in response to the Advocate General’s Opinion (see Stichting Natuur en Milieu and Others , C‑266/09, EU:C:2010:779, paragraph 28).
66. It must be borne in mind that the subject-matter of the application is the refusal by the Portuguese Republic to make available to the Commission an amount considered to form part of the own resources. In that regard it is important to distinguish Decision 85/257 as a budgetary law measure whose purpose is to define own resources allocated to the Union budget and taxes or duties established by the Community legislature in the exercise of powers based on the provisions of the EC Treaty on the common agricultural policy (see, to that effect, Amylum  v Council , 108/81, EU:C:1982:322, paragraph 32; Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest , C‑143/88 and C‑92/89, EU:C:1991:65, paragraph 40; and the order in Isera & Scaldis Sugar and Others , C‑154/12, EU:C:2013:101, paragraph 31). Thus, as observed by the Advocate General in point 79 of his Opinion, the collection of the amount owing under Article 8(3)(c) of Regulation No 3771/85 and Article 7(2) of Regulation No 579/86 cannot be dependent on whether it is credited to an article in the Community budget.
74. It should be borne in mind that, in the cases which gave rise to the judgments in Koninklijke Coöperatie Cosun  v Commission  (EU:T:2004:354, paragraph 38) and Koninklijke Coöperatie Cosun  v Commissioon  (EU:C:2006:674, paragraphs 38 to 43), the Union courts found that the amount owing due to the non-export of C sugar within the meaning of Regulation No 1785/81 and Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14) does not constitute a customs duty on imports or exports or a charge having equivalent effect or an agricultural charge on imports or exports, namely a levy.
79. It should be observed in that regard that, under Article 17(2) of Regulation No 1552/89, referred to by the Commission, Member States are to be free of the obligation to take all requisite measures to make the amounts corresponding to established entitlements available to the Commission solely if, for reasons of force majeure , those amounts could not be collected or if it appears that recovery is impossible in the long term for reasons which cannot be attributed to them (see, to that effect, Commission  v Denmark , C‑392/02, EU:C:2005:683, paragraph 66).
Marjan Noorzia v Bundesministerin für Inneres.
Date: 2014-07-17
17. Furthermore, taking the date when the application for family reunification is lodged as the point by reference to which it must be determined whether the minimum age condition is satisfied is consistent with the principles of equal treatment and legal certainty.
BCR Leasing IFN SA v Agenţia Naţională de Administrare Fiscală - Direcţia generală de administrare a marilor contribuabili and Agenţia Naţională de Administrare Fiscală - Direcţia generală de soluţionare a contestaţiilor.
Date: 2014-07-17
23. It should be recalled, first of all, that under Article 16 of the VAT Directive certain transactions for which no real consideration is received by the taxable person are treated as supplies of goods effected for consideration subject to VAT. According to well-established case-law, the purpose of that provision is to ensure equal treatment as between a taxable person who applies goods for his own private use or for that of his staff, on the one hand, and a final consumer who acquires goods of the same type, on the other (see, to that effect, judgment in EMI Group , C‑581/08, EU:C:2010:559, paragraph 17 and the case-law cited).
24. In order to attain that objective, Article 16 of the VAT Directive treats as a supply of goods for consideration the application, by a taxable person, of goods forming part of his business assets for his private use or for that of his staff, or their disposal free of charge or, more generally, their application for purposes other than those of his business, where the VAT on those goods or the component parts thereof was wholly or partly deductible.
32. Finally, in order that the referring court may be provided with a helpful answer, it should be made clear that the adjustment provided for in Articles 184 to 186 of the VAT Directive is an integral part of the VAT deduction scheme established by that directive (judgment in TETS Haskovo , C‑234/11, EU:C:2012:644, paragraph 30). The foregoing considerations thus do not affect any right of the tax authorities to require adjustment on the part of a taxable person under the conditions prescribed in that regard in the VAT Directive.
Shamim Tahir v Ministero dell’Interno and Questura di Verona.
Date: 2014-07-17
27. In that regard, it should be borne in mind that the Court has held that the system put in place by Directive 2003/109 clearly makes the acquisition of the status of long-term resident conferred by that directive subject to a specific procedure and, in addition, to fulfilment of all the conditions set out in Chapter II of that directive (judgment in Kamberaj , C‑571/10, EU:C:2012:233, paragraph 66).
28. Accordingly, the Court has observed that Article 4 of Directive 2003/109 provides that the Member States are to reserve the grant of long-term resident status to third-country nationals who have resided legally and continuously on their territory for five years immediately prior to the submission of the relevant application. Article 5 of the directive makes the acquisition of long-term resident status conditional upon evidence that third-country nationals who wish to enjoy that status have sufficient resources and sickness insurance. Lastly, Article 7 of the directive lays down the procedural requirements for acquisition of that status (judgment in Kamberaj , EU:C:2012:233, paragraph 67).
32. The Court has accordingly held that it follows from, inter alia, recitals 4 and 6 to Directive 2003/109 that the main objective of that directive is the integration of third-country nationals who are long-term residents in the Member States (see, to that effect, the judgment in Singh , C‑502/10, EU:C:2012:636, paragraph 45).
33. The Court has also held that, as can be seen from Article 4(1) of Directive 2003/109 and recital 6 thereto, it is the five-year duration of the legal and continuous residence that shows that the person concerned has put down roots in the country and therefore that that person is a long-term resident (see, to that effect, the judgment in Singh , EU:C:2012:636, paragraph 46).
Adala Bero v Regierungspräsidium Kassel and Ettayebi Bouzalmate v Kreisverwaltung Kleve.
Date: 2014-07-17
25. It is to be observed at the outset that the first sentence of Article 16(1) of Directive 2008/115 lays down the principle that the detention of illegally staying third-country nationals for the purpose of removal is to take place in specialised detention facilities. The second sentence of that provision lays down a derogation from that principle, which, as such, must be interpreted strictly (see, to this effect, the judgment in Kamberaj , C‑571/10, EU:C:2012:233, paragraph 86).
28. It must be held that the obligation, laid down in the first sentence of Article 16(1) of Directive 2008/115, requiring detention to take place as a rule in specialised detention facilities is imposed upon the Member States as such, and not upon the Member States according to their respective administrative or constitutional structures.
29. The national authorities responsible for applying the national legislation transposing Article 16 of Directive 2008/115 must therefore be able to detain third-country nationals in specialised detention facilities.
30. Thus, if application of the national legislation transposing Directive 2008/115 is entrusted in a Member State to authorities falling under a federated state, the fact that in certain federated states the competent authorities have the possibility of such detention cannot amount to sufficient transposition of Directive 2008/115 by the Member State concerned if the competent authorities of other federated states of that Member State lack that possibility.
31. This interpretation of Article 16(1) of Directive 2008/115 nevertheless does not mean that a Member State which, like the Federal Republic of Germany, has a federal structure is obliged to set up specialised detention facilities in each federated state. However, it must be ensured, inter alia pursuant to agreements providing for administrative cooperation, that the competent authorities of a federated state that does not have such facilities can provide accommodation for third-country nationals pending removal in specialised detention facilities located in other federated states.
Thi Ly Pham v Stadt Schweinfurt, Amt für Meldewesen und Statistik.
Date: 2014-07-17
16. However, it is apparent from paragraphs 28 to 31 of the judgment in Bero and Bouzalmate  (C‑473/13 and C‑514/13, EU:C:2014:2095) that the ground that there are no specialised detention facilities in a Land of the Federal Republic of Germany cannot in itself justify the application of the second sentence of Article 16(1) of Directive 2008/115.
20. Indeed, the Court has already held that Directive 2008/115 pursues the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and their dignity (judgments in El Dridi , C‑61/11 PPU, EU:C:2011:268, paragraph 31, and Arslan , C‑534/11, EU:C:2013:343, paragraph 42).