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COURT OF JUSTICE OF THE EUROPEAN UNION ANNUAL REPORT 2016 JUDICIAL ACTIVITY Synopsis of the judicial activity of the Court of Justice, the General Court and the Civil Service Tribunal PROVISIONAL VERSION Luxembourg, 2017 curia.europa.eu COURT OF JUSTICE OF THE EUROPEAN UNION COURT OF JUSTICE GENERAL COURT CIVIL SERVICE TRIBUNAL L-2925 LUXEMBOURG L-2925 LUXEMBOURG L-2925 LUXEMBOURG LUXEMBOURG LUXEMBOURG LUXEMBOURG TEL. +352 4303-1 TEL. +352 4303-1 TEL. +352 4303-1 The Court of Justice on the Internet: curia.europa.eu Completed on: 1 January 2016 Reproduction is authorised provided the source is acknowledged. The photographs may be reproduced only in the context of this publication. For any other use, authorisation must be sought from the Court of Justice of the European Union. A great deal of information on the European Union is available on the internet through the Europa server (http://europa.eu). Luxembourg: Court of Justice of the European Union / Communication Directorate / Publications and Electronic Media Unit Publications Office of the European Union Print ISBN 978-92-829-2312-2 ISSN 2467-0987 doi:10.2862/09365 QD-AP-17-001-EN-C PDF ISBN 978-92-829-2313-9 ISSN 2467-1215 doi:10.2862/413819 QD-AP-17-001-EN-N ePUB ISBN 978-92-829-2362-7 ISSN 2467-1215 doi:10.2862/386568 QD-AP-17-001-EN-E © European Union, 2017 Photos © Georges Fessy Photos © Gediminas Karbauskis Printed in Luxembourg PRINTED ON ELEMENTAL CHLORINE-FREE BLEACHED PAPER (ECF) CONTENTS CONTENTS Foreword by Mr K. Lenaerts, President of the Court of Justice of the European Union 8 CHAPTER I | THE COURT OF JUSTICE A. The Court of Justice in 2016: changes and activity 12 B. Case-law of the Court of Justice in 2016 14 I. Fundamental rights 14 II. Citizenship of the Union 15 1. Rights of Union citizens 15 2. Derived right of residence of third country nationals 17 III. Institutional provisions 19 3. Legal basis of acts of the European Union 19 4. Competence and powers of the institutions 22 IV. EU law and national law 23 V. Proceedings of the European Union 25 VI. Agriculture 26 VII. Freedoms of movement 28 1. Freedom of movement for workers 28 2. Free movement of goods 30 3. Freedom of establishment and freedom to provide services 30 VIII. Border controls, asylum and immigration 34 1. Asylum policy 34 2. Immigration policy 38 IX. Judicial cooperation in civil matters 39 1. Brussels I Regulation 39 2. Rome I and Rome II Regulations 41 X. Judicial cooperation in criminal matters 42 1. European arrest warrant 42 2. Right to interpretation and translation in criminal proceedings 46 3. Criminal proceedings and decisions in other Member States 47 XI. Competition 48 1. Agreements, decisions and concerted practices 48 2. State aid 50 XII. Fiscal provisions 54 JUDICIAL ACITIVITY 2016 3 CONTENTS XIII. Approximation of laws 55 1. Intellectual property 55 2. Protection of personal data 59 3. Electronic commerce 60 4. Telecommunications 61 5. Tobacco products 62 6. Cosmetic products 63 XIV. Public procurement 64 XV. Economic and monetary policy 66 XVI. Social policy 68 XVII. Consumer protection 69 XVIII. Environment 72 XIX. International agreements 74 XX. Common foreign and security policy 77 C. Activity of the registry of the Court of justice in 2016 80 I. A brief statistical overview of judicial activity in 2016 80 II. Communication with the parties and other persons 82 III. Assistance to the members of the Court 83 D. Statistics concerning the judicial activity of the Court of justice 86 E. Composition of the Court of Justice 114 1. Change in the composition of the Court of justice in 2016 115 2. Order of precedence 116 3. Former members of the Court of justice 118 CHAPTER II | THE GENERAL COURT A. Activity of the General Court in 2016 124 1. Organisation 124 2. Statistics concerning judicial activity 125 I. Judicial proceedings 128 Admissibility of actions brought under Article 263 TFEU 128 1. Concept of a measure against which an action may be brought 128 4 JUDICIAL ACTIVITY 2016 CONTENTS B. Case-law of the General Court in 2016 128 2. Standing to bring an action 129 Direct concern 129 a. Individual effect 130 3. Concept of a regulatory act not entailing implementing measures 131 4. Compliance with procedural requirements and time limits for bringing actions 133 Abuse of procedure 135 Application of the new Rules of Procedure 136 II. Law governing the institutions — European citizens’ initiative — Social policy 137 III. Competition rules applicable to undertakings 138 General issues 138 1. Rights of the defence 138 a. Statement of objections 138 b. Right to be heard 139 c. Use of secret recordings of telephone conversations as evidence 139 2. Conditions laid down for the grant of immunity 140 3. Possibility for the Commission to opt for a settlement 141 4. Obligation to state reasons 141 5. Unlimited jurisdiction 142 Developments in the area of Article 101 TFEU 143 1. Concept of potential competition 143 2. Restriction by object 145 a. Non-compete clause 145 b. Disproportionate reverse payments entailing the exclusion of competitors from the market 146 3. Calculation of the amount of the fine 147 IV. State aid 149 Admissibility 149 1. Act against which an action may be brought 149 2. Individual effect 150 Administrative procedure 150 Concept of advantage 152 1. Burden of proof 152 2. Private creditor test 153 Concept of State resources 155 Selectivity — Fiscal aid 156 State aid compatible with the internal market 157 Recovery of aid 158 V. Intellectual property — European Union trade mark 160 Autonomy of the European Union trade mark system 160 Absolute grounds for refusal 161 1. Raised by the Board of Appeal of its own motion 161 JUDICIAL ACITIVITY 2016 5 CONTENTS 2. Obligation to state reasons 161 3. Bad faith 162 4. Geographical indication 163 5. Sound marks 164 6. Production of evidence 164 Relative grounds for refusal 165 1. Raised by the Board of Appeal of its own motion 165 2. Evidence 166 3. Limitation in consequence of acquiescence 168 Procedural issues 168 VI. Common foreign and security policy — Restrictive measures 170 Islamic Republic of Iran 170 Tunisian Republic 173 Ukraine 175 Syrian Arab Republic 176 Fight against terrorism 177 VII. Registration of chemical products 178 VIII. Dumping 180 IX. Supervision of the financial sector 181 X. Public procurement by the institutions of the Union 182 XI. Access to documents of the institutions 183 Application for access to previously disclosed documents 184 Exception relating to protection of the decision-making process 184 Exception relating to the protection of legal advice 185 Exception relating to the protection of judicial proceedings 187 XII. Actions for damages 188 Accession of the Republic of Croatia to the European Union 188 Processing of personal data 189 Powers of OLAF 190 Loss of opportunity 191 XIII. Appeals 192 XIV. Applications for interim measures 192 C. Activity of the Registry of the General Court in 2016 196 I. Organisational effects connected with the entry into office of new judges 197 II. Procedural effects of the reform 198 III. Task of assisting the Court 200 6 JUDICIAL ACTIVITY 2016 CONTENTS D. Statistics concerning the judicial activity of the General Court 204 E. Composition of the General Court 230 1. Change in the composition of the General court in 2016 231 2. Order of precedence 233 3. Former members of the General court 237 CHAPTER III | THE CIVIL SERVICE TRIBUNAL A. Activity of the Civil Service Tribunal in 2016 242 B. Case-law of the Civil Service Tribunal in 2016 244 I. Procedural questions 244 1. Pre-litigation procedure 244 2. Act adversely affecting an official 244 3. Lack of authority of the perpetrator of an act with adverse effect 244 4. Time limits for bringing proceedings 245 5. Costs 245 6. Res judicata 246 II. Questions of substance 246 General conditions for validity of measures and fundamental rights 246 1. Scope of a preamble 246 2. Formal statement of grounds 246 3. Temporal applicability of the provisions of the new Staff Regulations 247 4. Re-examination of administrative measures 247 5. Reliance on the principles in the Charter of Fundamental Rights of the European Union 247 6. Duty of sincere cooperation with tional courts 248 7. Right to be heard 248 8. Right to sound administration 248 9. Duty to have regard for the welfare of staff 249 10. Right of an official or staff member to access to his file 249 Emoluments and social security benefits of officials 250 1. Social security 250 2. Pensions 251 3. Severance grant 251 4. Advancement in step 252 Car eers of officials and other staff 252 1. Promotion of staff placed at the disposal of a trade union or staff association 252 2. Disciplinary proceedings 252 3. Relocation of temporary and contract staff on the transfer of the seat of an agency from one Member State to another 253 4. Interruption of the career path of a member of staff 253 Whistleblower 254 C. Statistics concerning the judicial activity of the Civil service Tribunal 256 D. Composition of the Civil Service Tribunal 268 JUDICIAL ACITIVITY 2016 7 Foreword by Mr K. Lenaerts, President of the Court of Justice of the European Union Koen LENAERTS President of the Court of Justice of the European Union The European Union experienced painful events in the course of 2016. After Paris in November 2015, Brussels, Nice and Berlin have, like numerous other places in the world, been confronted in recent months with the atrocity of large-scale terrorist attacks which scorn in cowardly fashion the fundamental values of peace, humanity, tolerance and mutual respect on which the European project dear to us is founded.
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