larimo/cjeu-paragraph-retrieval huggingface dataset:
Commission of the European Communities v Republic of Austria.
Date: 2008-12-22
24. As a preliminary point, it should be noted that the concept of establishment within the meaning of the EC Treaty is a very broad one, allowing a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the European Community in the sphere of activities of self-employed persons (see Case C-386/04 Centro di Musicologia Walter Stauffer  [2006] ECR I-8203, paragraph 18 and the case-law cited).
27. Next, according to settled case-law, the freedom of establishment conferred by Article 43 EC on Community nationals includes the right for them to take up and pursue activities as self-employed persons and to set up and manage undertakings under the same conditions as are laid down by the law of the Member State of establishment for its own nationals (see, to that effect, Case C-212/97 Centros [1999] ECR I‑1459, paragraph 19, and Case C-170/05 Denkavit Internationaal and Denkavit France  [2006] ECR I-11949, paragraph 20).
28. In other words, Article 43 EC prohibits the Member States from laying down in their laws conditions for the pursuit of activities by persons exercising their right of establishment which differ from those laid down for its own nationals (Case 270/83 Commission  v France  [1986] ECR 273, paragraph 24).
35. As the Court has pointed out on numerous occasions, the concept of public policy, first, comes into play where a genuine and sufficiently serious threat affects one of the fundamental interests of society and, second, must, as a justification for a derogation from a fundamental principle of the Treaty, be narrowly construed (see to that effect, in particular, Case C-355/98 Commission  v Belgium  [2000] ECR I‑1221, paragraph 28; Case C-465/05 Commission  v Italy  [2007] ECR I-11091, paragraph 49; and Case C-319/06 Commission  v Luxembourg  [2008] ECR I-0000, paragraph 50).
36. It is also clear from the case-law that the reasons which may be invoked by a Member State in order to justify a derogation from the principle of freedom of establishment must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that Member State, and by precise evidence enabling its arguments to be substantiated (see, by analogy, Commission  v Luxembourg , paragraph 51 and the case-law cited).
41. Consequently, the restriction on the freedom of establishment which results from the national legislation at issue is not justified.
42. In those circumstances, it must be held that by requiring, for the registration of partnerships or companies in the commercial register on application by persons who are nationals of the eight new Member States and are members of a partnership or have minority holdings in a limited liability company, a determination by the AMS that they are self-employed or the presentation of a work permit exemption certificate, the Republic of Austria has failed to fulfil its obligations under Article 43 EC.
Costs
Donal Gordon v Commission of the European Communities.
Date: 2008-12-22
41. As a preliminary point, it should be noted that the Commission, like all the Community institutions, has a special obligation of transparency in regard to staff reporting, advancement and promotion of its agents, compliance with which is ensured by means of the formal procedure laid down in Articles 43 and 46 of the Staff Regulations.
42. In this respect, the CDR is an essential document in the appraisal of staff employed by the institutions, since it enables an assessment to be made of an official’s ability, efficiency and conduct, as referred to in Article 43 of the Staff Regulations. That report is drawn up at least once every two years as provided for by each institution in accordance with Article 110 of the Staff Regulations.
43. In addition, as the Advocate General noted at point 49 of his Opinion, the CDR is a value judgment by an official’s immediate superiors on the manner in which the official being appraised has performed the duties conferred on him and on his conduct in the service during the relevant period.
44. It must be pointed out, in the first place, that, irrespective of its future usefulness, the CDR constitutes written, formal evidence of the quality of the work carried out by the official. Such an appraisal does not merely describe the tasks performed during the relevant period, but also includes an assessment of the personal qualities shown by the individual assessed in the conduct of his professional life.
45. Therefore, every official has a right to have his work recognised by means of an appraisal carried out in a just and equitable manner. Consequently, in accordance with the right to effective judicial protection, officials must in any event be acknowledged as having the right to challenge their CDR on account of its content or because it has not been drawn up in accordance with the rules laid down by the Staff Regulations.
61. In that regard, it is sufficient to note that the question whether the amount of compensation claimed by the appellant has been sufficiently demonstrated by him requires an assessment of the facts which lies beyond the jurisdiction of the Court, which is merely to review the compliance of the judgment under appeal with rules of law (see, to that effect, Case C‑209/94 P Buralux and Others  v Council  [1996] ECR I‑615, paragraph 21).
Kabel Deutschland Vertrieb und Service GmbH & Co. KG v Niedersächsische Landesmedienanstalt für privaten Rundfunk.
Date: 2008-12-22
24. As regards the specified nature of the channels which may be covered by ‘must carry’ status, it is apparent from the wording of Article 31(1) of the Universal Service Directive that Member States must specify which channels are to be granted ‘must carry’ status.
33. In particular, it is appropriate to stress the importance of the fundamental freedom to receive information of which the recipients are end-users and which the Member States must guarantee, in accordance with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
37. In that regard, it should be noted that the maintenance of the pluralism which the legislation in question seeks to guarantee is connected with freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which freedom is one of the fundamental rights guaranteed by the Community legal order (see Case C-288/89 Collectieve Antennevoorziening Gouda  [1991] ECR I‑4007, paragraph 23; Case C-148/91 Veronica Omroep Organisatie  [1993] ECR I‑487, paragraph 10; Case C-23/93 TV10  [1994] ECR I‑4795, paragraph 19; and Case C-250/06 United Pan-Europe Communications Belgium and Others  [2007] ECR I‑11135, paragraph 41).
38. Consequently, it must be accepted that such national legislation pursues a general interest objective, since it seeks to preserve the pluralist nature of the television channel service in the Land of Lower Saxony and thus forms part of a cultural policy the aim of which is to guarantee, in the audiovisual sector, the freedom of expression of the different social, cultural and linguistic components which exist in that Land (see, to that effect, United Pan-Europe Communications Belgium and Others , paragraph 42).
42. As regards the reference system applied by that legislation, it must be noted that, in interpreting Article 49 EC, the Court has held that ‘must carry’ status should not automatically be awarded to all television channels transmitted by the same private broadcaster, but must be strictly limited to those channels having an overall content which is appropriate for the purpose of attaining such an objective. In addition, the number of channels reserved to private broadcasters having that status must not manifestly exceed what is necessary in order to attain that objective (see United Pan-Europe Communications Belgium and Others , paragraph 47).
47. According to settled case-law, since this assessment is a matter for the national court, it is for the Court to provide the national court with all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see, inter alia, Case C-17/06 Céline  [2007] ECR I-7041, paragraph 29).
Criminal proceedings against Vladimir Turanský.
Date: 2008-12-22
32. With regard to the concept of ‘finally disposed of’, the Court has already declared, first, in paragraph 30 of Joined Cases C-187/01 and C-385/01 Gözütok and Brügge  [2003] ECR I-1345 that when, following criminal proceedings, further prosecution is definitively barred, the person concerned must be regarded as someone whose trial has been ‘finally disposed of’ for the purposes of Article 54 of the CISA in relation to the acts which he is alleged to have committed.
33. Second, it has held in paragraph 61 of Case C-150/05 Van Straaten  [2006] ECR I-9327, that Article 54 of the CISA applies to a decision of the judicial authorities of a Contracting State by which the accused is finally acquitted for lack of evidence.
35. In order to assess whether a decision is ‘final’ for the purposes of Article 54 of the CISA, it is necessary first of all to ascertain, as contended by the Austrian, Netherlands, Finnish and United Kingdom Governments and by the Commission, that the decision in question is considered under the law of the Contracting State which adopted it to be final and binding, and to verify that it leads, in that State, to the protection granted by the ne bis in idem  principle.
36. A decision which does not, under the law of the first Contracting State which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Contracting State.
41. That interpretation of Article 54 of the CISA is compatible with the objective of the article, which is to ensure that a person whose trial has been finally disposed of is not prosecuted for the same acts in the territory of several Contracting States on account of his having exercised his right to freedom of movement (see, to that effect, Gözütok and Brügge , paragraph 38).
44. It should be added that, while the goal of Article 54 of the CISA is to ensure that a person, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment in a Member State, may travel within the Schengen territory without fear of being prosecuted for the same acts in another contracting State (see, to that effect, Case C-436/04 Van Esbroeck  [2006] ECR I-2333, paragraph 34), it is not intended to protect the suspect from having to submit to possible subsequent investigations, in respect of the same acts, in several Contracting States.
Hauptzollamt Hamburg-Jonas v Bayerische Hypotheken- und Vereinsbank AG.
Date: 2009-01-15
16. As, however, Regulation No 3665/87 does not lay down rules concerning the limitation period applicable to an action for recovery of export refunds unduly received, it is appropriate to refer to the first subparagraph of Article 3(1) of Regulation No 2988/95.
20. As both the Commission of the European Communities and the Advocate General, at point 31 of her Opinion, pointed out, the ‘irregularity’, in the context of Regulation No 2988/95, implies that the infringement of a provision of Community law is to result from an act or omission by an economic operator.
21. It follows that when an export refund has been wrongly paid to an operator owing to an error on the part of the national authorities, such a situation is not an ‘irregularity’ within the meaning of Regulation No 2988/95.
22. Consequently, the rule concerning the limitation period laid down in the first subparagraph of Article 3(1) of that regulation is not intended to apply to proceedings in respect of irregularities resulting from errors on the part of the national authorities.
24. In the absence of provisions of Community law, disputes concerning the recovery of amounts wrongly paid under Community law must be decided by national courts in application of their own domestic law, subject, however, to the limits imposed by Community law, on the basis that the rules and procedures laid down by domestic law must not have the effect of making it practically impossible or excessively difficult to recover the aid not due and that the national legislation must be applied in a manner which is not discriminatory as compared to procedures for deciding similar national disputes (see Case C-336/00 Huber  [2002] ECR I-7699, paragraph 55 and the case-law cited).
M-K Europa GmbH & Co. KG v Stadt Regensburg.
Date: 2009-01-15
15. In that regard, it should be noted that Article 1(2) of Regulation No 258/97 delimits the regulation’s scope, in particular by defining what is to be understood by novel foods and food ingredients. According to that definition, ‘novel’ food and food ingredients are those ‘which have not hitherto been used for human consumption to a significant degree within the Community’ (Joined Cases C‑211/03, C‑299/03 and C‑316/03 to C‑318/03 HLH Warenvertrieb and Orthica  [2005] I‑5141, paragraph 82).
22. In that regard, it is important to note that Regulation No 258/97 has the twofold objective of ensuring the functioning of the internal market in new foodstuffs and protecting public health against the risks to which they may give rise (see, to that effect, Case C‑236/01 Monsanto Agricoltura Italia and Others [2003] ECR I‑8105, paragraph 74).
23. That regulation is designed to establish within the Community common standards in the field of novel foods and novel food ingredients, in particular, as stated in recital 2, by introducing a single safety assessment of such foods and food ingredients through a Community procedure before they are placed on the Community market.
40. In that regard, it should be noted that Article 1(3) of Regulation No 258/97 introduces the possibility of determining, where necessary, whether a type of food or food ingredient falls within the scope of that regulation under what is known as the ‘comitology’ procedure laid down in Article 13 thereof.
43. The answer to the sixth question is therefore that it is not incumbent on an undertaking to initiate the procedure laid down in Article 13 of Regulation No 258/97.
Silberquelle GmbH v Maselli-Strickmode GmbH.
Date: 2009-01-15
3. Article 10(1) of the Directive provides:
‘If, within a period of five years following the date of the completion of the registration procedure, the proprietor has not put the trade mark to genuine use in the Member State in connection with the goods or services in respect of which it is registered, or if such use has been suspended during an uninterrupted period of five years, the trade mark shall be subject to the sanctions provided for in this Directive, unless there are proper reasons for non-use.’
17. It is settled case-law that ‘genuine use’ within the meaning of the Directive must be understood to denote 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 goods or services from others which have another origin (Case C-40/01 Ansul  [2003] ECR I-2439, paragraphs 35 and 36, and Case C-442/07 Verein Radetzky-Orden  [2008] ECR I-0000, paragraph 13).
18. It follows from that concept of ‘genuine use’ that 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, and Verein Radetzky-Orden , paragraph 14).
20. For the reasons set out in points 48 and 56 of that Opinion, that condition is not fulfilled where promotional items are handed out as a reward for the purchase of other goods and to encourage the sale of the latter.
21. In such a situation, those items are not distributed in any way with the aim of penetrating the market for goods in the same class. In those circumstances, affixing the mark to those items does not contribute to creating an outlet for those items or to distinguishing, in the interest of the customer, those items from the goods of other undertakings.
22. In the light of the foregoing considerations, the answer to the question referred is that Articles 10(1) and 12(1) of the directive must be interpreted as meaning that, where the proprietor of a mark affixes that mark to items that it gives, free of charge, to purchasers of its goods, it does not make genuine use of that mark in respect of the class covering those items.
Costs
K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy.
Date: 2009-01-15
17. The Court has set out the essential characteristics of VAT, of which there are four: VAT applies generally to transactions relating to goods or services; it is proportional to the price charged by the taxable person in return for the goods and services which he has supplied; it is charged at each stage of the production and distribution process, including that of retail sale, irrespective of the number of transactions which have previously taken place; the amounts paid during the preceding stages of the process are deducted from the tax payable by a taxable person, with the result that the tax applies, at any given stage, only to the value added at that stage and the final burden of the tax rests ultimately on the consumer (see Case C‑475/03 Banca popolare di Cremona  [2006] ECR I-9373, paragraph 28).
18. An ‘additional tax’ such as that provided for in the national legislation at issue in the case in the main proceedings does not have those characteristics. Suffice it to note, in that regard, that it arises not from any transaction but from a declaration error and, in addition, that the amount thereof is not proportional to the price charged by the taxable person.
19. It is not a tax but in fact an administrative penalty imposed where it is established that the taxable person has indicated an amount of tax difference to be repaid in respect of VAT or of input tax to be repaid which is greater than the amount due to that person.
20. The principle of a common system of VAT does not preclude the introduction by the Member States of measures penalising irregularities committed when declarations are made as to the amount of VAT due. On the contrary, Article 22(8) of the Sixth VAT Directive provides that Member States may impose other obligations which they deem necessary for the correct levying and collection of the tax.
23. Suffice it to state in that regard that an administrative penalty imposed where it is established that the taxable person has declared an overstated amount of tax difference to be repaid in respect of VAT or an overstated amount of input tax to be repaid, such as the penalty provided for in Article 109(5) and (6) of the Law on VAT, cannot constitute a special measure for derogation of the type envisaged in Article 27(1) of the Sixth VAT Directive but is, as has already been stated, a measure referred to in Article 22(8) of the Sixth VAT Directive.
27. Article 33 of the Sixth VAT Directive permits a Member State to maintain or introduce duties or charges on the supply of goods, the provision of services or imports only if they cannot be characterised as turnover taxes (see Banca popolare di Cremona , paragraph 24).
Association nationale pour la protection des eaux et rivières-TOS and Association OABA v Ministère de l'Ecologie, du Développement et de l'Aménagement durables.
Date: 2009-01-22
23. Further, as regards the term ‘poultry’, which is not specifically defined by Directive 96/61, it should be borne in mind that the usual meaning of that word describes all those birds farmed for their eggs or their meat. Quails, partridges and pigeons are species of birds which may be farmed for the consumption of their eggs or their meat.
24. That interpretation can also be based on the general scheme and purpose of the directive (see, by analogy, Case C-72/95 Kraaijeveld and Others  [1996] ECR I‑5403, paragraph 38).
25. In that regard, it must be borne in mind that the purpose of Directive 96/61, as laid down in Article 1, is to achieve integrated prevention and control of pollution by putting in place measures designed to prevent or reduce the emissions, of the activities listed in Annex I, into the air, water and land in order to achieve a high level of protection of the environment.
26. As the Advocate General states in point 34 of his Opinion, that integrated approach is realised by appropriate coordination of the procedure and authorisation conditions for industrial installations whose potential for pollution is significant, making it possible to achieve the highest level of protection for the environment as a whole, which must in all cases include provisions minimising long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole.
Commune de Sausheim v Pierre Azelvandre.
Date: 2009-02-17
50. The Court has already held that apprehension of internal difficulties cannot justify a failure by a Member State to apply Community law effectively (see inter alia Case C‑265/95 Commission  v France  [1997] ECR I‑6959, paragraph 55). In particular, concerning the deliberate release of GMOs into the environment, the Court held in Case C‑121/07 Commission  v France  [2008] ECR I‑0000, paragraph 72, that, even on the assumption that the social unrest referred to by the French Republic is in fact attributable in part to the implementation of Community rules, a Member State may not plead difficulties of implementation which emerge at the stage when a Community measure is put into effect, including difficulties relating to opposition on the part of certain individuals, to justify a failure to comply with obligations and time-limits laid down by Community law.
51. That interpretation of Directive 2001/18 is substantiated by the requirement, referred to in the third indent of Article 25(4) thereof, that information concerning the environmental risk assessment may not be kept confidential. Indeed, such an assessment is possible only with full knowledge of the proposed release, because, without such information, it would not be possible validly to assess the potential effects of a deliberate release of GMOs on human health and the environment (see, to that effect, Case C‑121/07 Commission  v France , paragraphs 75 and 77).