ddrg/super_eurlex huggingface dataset:
Keywords

Summary



Keywords

Free movement of goods — Community transit — External Community transit — Goods in temporary storage — Non-Community goods — Acceptance of the customs declaration — Point at which placed under the external transit procedure and assigned a customs-approved treatment or use — Date of release of goods

(Council Regulation No 2913/92, Arts 4(20), 37(2), 50, 67, 73 and 82(1))

Summary

Articles 50, 67 and 73 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 648/2005, must be interpreted as meaning that the point at which non-Community goods, covered by a customs declaration accepted by the customs authorities for placing under the external Community transit procedure and having the status of goods in temporary storage, are placed under that customs procedure and thereby assigned a customs-approved treatment or use is the moment at which they are released.

Admittedly, Article 67 of the Customs Code provides that, save where otherwise expressly provided, the date to be used for the purposes of all the provisions governing the customs procedure for which the goods are declared is that of the acceptance by the customs authorities of that declaration. Nevertheless, that acceptance is not sufficient alone to put an end to temporary storage. Article 37(2) of the Customs Code provides that goods brought into the customs territory of the Community are to remain under customs supervision for as long as is necessary for their customs status to be determined and, in the case of non-Community goods and without prejudice to Article 82(1) of that code, until their customs status is changed.

In the case of the transit in question, goods cannot be in external Community transit until all the conditions for that transit are met. The need or the possibility for the customs authorities to apply verification or identification measures, or to require guarantees, does not permit the inference that all the conditions for coverage by the external Community transit procedure can be fulfilled solely by dint of the acceptance of the customs declaration. Furthermore, the fact that goods cannot be covered by the external Community transit procedure until they have been released follows from the definition in Article 4(20) of the Customs Code, which emphasises the fact that the goods are to be made available by the customs authorities ‘for the purposes stipulated by the customs procedure under which they are placed’.

(see paras 40-42, 46, 53-55, operative part)
Case C‑518/11

UPC Nederland BV

v

Gemeente Hilversum

(Request for a preliminary ruling from the Gerechtshof te Amsterdam)

‛Electronic communications networks and services — Directives 97/66/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — Scope ratione materiae — Provision of a basic package of radio and television programmes via cable — Sale by a municipality of its cable network to a private undertaking — Contractual clause concerning the tariff — Powers of the national regulatory authorities — Principle of sincere cooperation’

Summary — Judgment of the Court (Third Chamber), 7 November 2013

Article 2(c) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directives 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services, constituting the new regulatory framework applicable to electronic communications services, in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer. (see para. 47, operative part 1)

Directives 2002/21 on a common regulatory framework for electronic communications networks and services, 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services must be interpreted as meaning that, from the expiry of the deadline for their implementation, they preclude an entity which is not a national regulatory authority from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable. (see para. 55, operative part 2)
Keywords

Subject of the case

Operative part



Keywords

European Union law — Interpretation — Texts in several languages — Uniform interpretation — Consideration of different language versions — Directive 91/629 — Definition of ‘rearing’ and ‘fattening’ (Council Directive 91/629, Arts 1 and 4) (see paras 36-39)

2. European Union law — Interpretation — Texts in several languages — Uniform interpretation — Differences between the various language versions — General scheme and purpose of the rules in question as a reference point — Directive 91/629 (Council Directive 91/629, Art. 1) (see paras 40-42)

3. Agriculture — Approximation of laws — Minimum standards for the protection of calves — Directive 91/629 — Scope — Calves kept confined in the context of a dairy farming operation for agricultural purposes — Included (Council Directive 91/629, Arts 1 and 4) (see paras 44-46, operative part)

Subject of the case

Re:

Reference for a preliminary ruling — College van Beroep voor het Bedrijfsleven — Interpretation of Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves (OJ 1991 L 340, p. 28) and of Articles 4 and 6 of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1) — National legislation transposing the Directive by stating that the management requirements apply not only to calves confined for rearing and fattening, but also to calves confined for dairy farming.

Operative part

Operative part:

Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves, as amended by Council Regulation (EC) No 806/2003 of 14 April 2003, must be interpreted as meaning that the requirement, referred to in Article 4 of that directive, according to which the conditions relating to the rearing of calves must comply with the general provisions set out in the annex to that directive, including point 8 of that annex, which prohibits, subject to exceptions, the tethering of calves, applied to calves kept confined by a farmer in the context of a dairy farming operation for agricultural purposes.
23

In that regard, it should be borne in mind that the fact that the parties to the main action did not raise a point of European Union law before the referring court does not preclude the latter from bringing the matter before the Court of Justice. In providing that a reference for a preliminary ruling may be submitted to the Court where ‘a question is raised before any court or tribunal of a member state’, the second and third paragraphs of Article 267 TFEU are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of European Union law, but also extend to cases where a question of this kind is raised by the court or tribunal itself, which considers that a decision thereon by the Court of Justice is ‘necessary to enable it to give judgment’ (Case 126/80 Salonia [1981] ECR 1563, paragraph 7).
Judgment of the Court (Third Chamber) of 3 May 2012 —

Legris Industries v Commission



(Case C‑289/11 P)

Appeal — Competition — Cartels — Copper fittings and copper alloy fittings sector — Commission decision finding an infringement of Article 81 EC — Fines — Parent companies and subsidiaries — Imputability of the unlawful conduct

1. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility — Entry into force of the Treaty of Lisbon — New fact warranting the late introduction of a head of claim based on breach of the right to a fair hearing — Excluded (Art. 6(2) TEU; Charter of Fundamental Rights of the European Union, Art. 47; Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court of Justice, Arts 42(2) and 113(2)) (see paras 33, 35, 36)

2. Competition — Rules of the Union — Infringements — Attribution — Parent company and subsidiaries — Unilateral conduct — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 45‑47)

3. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 51, 53)

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T‑376/06 Legris Industries v Commission , by which that court dismissed the action for partial annulment of Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F‑1/38.121 — Fittings) — Copper Fittings and Copper Alloy Fittings Sector — Infringement of the right of access to an independent and impartial tribunal — Imputability of the unlawful conduct — Breach of the principles of equal treatment, personal liability and the principle that the penalty must be specific to the offender — Distortion of evidence.

Operative part

The Court:

1. Dismisses the appeal;
3

Recitals 2 to 5 and 35 and 36 of the Directive are worded as follows: ‘(2) The essential aim of any rules governing the production, distribution and use of medicinal products must be to safeguard public health. (3) However, this objective must be attained by means which will not hinder the development of the pharmaceutical industry or trade in medicinal products within the [European Union]. (4) Trade in medicinal products within the [European Union] is hindered by disparities between certain national provisions, in particular between provisions relating to medicinal products … and such disparities directly affect the functioning of the internal market. (5) Such hindrances must accordingly be removed; whereas this entails approximation of the relevant provisions. ... (35) It is necessary to exercise control over the entire chain of distribution of medicinal products, from their manufacture or import into the [European Union] through to supply to the public, so as to guarantee that such products are stored, transported and handled in suitable conditions. The requirements which must be adopted for this purpose will considerably facilitate the withdrawal of defective products from the market and allow more effective efforts against counterfeit products. (36) Any person involved in the wholesale distribution of medicinal products should be in possession of a special authorisation. Pharmacists and persons authorised to supply medicinal products to the public, and who confine themselves to this activity, should be exempt from obtaining this authorisation. It is however necessary, in order to control the complete chain of distribution of medicinal products, that pharmacists and persons authorised to supply medicinal products to the public keep records showing transactions in products received.’
4

In the version resulting from Article 28g of the Sixth Directive, Article 17(2)(a) and (5) thereof reads as follows: ‘2. In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay: (a) [VAT] due or paid in respect of goods or services supplied or to be supplied to him by another taxable person; … 5. As regards goods and services to be used by a taxable person both for transactions covered by paragraphs 2 and 3, in respect of which [VAT] is deductible, and for transactions in respect of which [VAT] is not deductible, only such proportion of the [VAT] shall be deductible as is attributable to the former transactions. This proportion shall be determined, in accordance with Article 19, for all the transactions carried out by the taxable person. However, Member States may: (a) authorise the taxable person to determine a proportion for each sector of his business, provided that separate accounts are kept for each sector; (b) compel the taxable person to determine a proportion for each sector of his business and to keep separate accounts for each sector; (c) authorise or compel the taxable person to make the deduction on the basis of the use of all or part of the goods and services; (d) authorise or compel the taxable person to make the deduction in accordance with the rule laid down in the first subparagraph, in respect of all goods and services used for all transactions referred to therein; (e) provide that where the [VAT] which is not deductible by the taxable person is insignificant it shall be treated as nil.’
11

Under Article 49 of that law: ‘1. Operators and holders of rights of use of public radio frequencies or numbering resources shall be liable for payment of the charges laid down by law. 2. Those charges shall be used to cover: (a) the administrative costs incurred in regulatory work involving preparation and implementation of secondary Community legislation and administrative acts, such as those relating to interconnection and access; (b) the costs incurred in the management, control and enforcement of the scheme laid down in this Law; (c) the costs incurred in the management, control and enforcement of rights of occupation of public land and rights of use of public radio frequencies and numbering; (d) the management of the notifications governed by Article 6 of this Law; (e) the costs of international cooperation, harmonisation and standardisation and market analysis. 3. Without prejudice to paragraph 2, the charges imposed for use of public radio frequencies, numbering and the public land needed for the installation of electronic communications networks shall be used to cover the requirement to ensure the optimal use of those resources, account being taken of the value of the property in respect of which a right of use is granted and its scarcity. Those charges must be non-discriminatory, transparent, objectively justified and proportionate to their aim. In addition, they must promote the fulfilment of the objectives and principles laid down in Article 3, in the terms laid down by regulation. 4. The charges referred to in the preceding paragraphs shall be imposed in an objective, transparent and proportionate manner so that additional administrative costs and attendant charges are minimised. 5. The Ministerio de Ciencia y Tecnología (Ministry of Science and Technology), the Comisión del Mercado de las Telecomunicaciones (Telecommunications Market Commission) and the Agencia Estatal de Radiocomunicaciones (State Agency for Radiocommunications), together with the regional authorities which manage and calculate the charges under paragraph 2, shall publish a yearly overview of the administrative costs which justify their imposition and of the total sum collected.’
23

By a judgment of 10 November 2009, the Wojewódzki Sąd Administracyjny w Warsawie annulled the contested interpretation. It held that Paragraph 13(1)(5) of the Decree on VAT, which introduces a tax exemption not provided for under EU law, does not exempt the economic operator which supplies a second-hand vehicle to a taxable dealer from the obligation to tax that supply where, on acquisition of that vehicle, that economic operator was not entitled to deduct the input VAT in full. According to that court, the exemption set out in that provision of the Decree on VAT concerns only the part of the VAT remaining payable by the economic operator, having regard to the limits provided for in Article 86(3) of the Law on VAT, excluding the amount, corresponding to 60% of the tax indicated on the invoice or to PLN 6 000, as the case may be, which that economic operator deducted on the purchase of the vehicle. It follows, according to that court, that Bawaria Motors is entitled to apply the margin scheme, but only in respect of an amount limited to the input tax which the economic operator which supplied it with the vehicle was unable to deduct, corresponding to 40% of the amount of the tax indicated on the invoice or to the part of that tax in excess of PLN 6 000, as the case may be.
24

The Administrativen sad Varna states that national law differentiates between the voluntary destruction of assets and destruction due to external factors, with the obligation on the part of the taxable person to adjust the deduction being waived only in the second case. In those circumstances, the Administrativen sad Varna decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. How is the expression “destruction of property” for the purposes of Article 185(2) of [the Directive] to be interpreted, and are the motives for the destruction and/or the conditions under which it takes place relevant for the purposes of the adjustment to the deduction made upon acquisition of the property? 2. Is the demolition of capital assets, duly proved, with the sole aim of creating new, more modern capital assets with the same purpose to be regarded as a modification of the factors used to determine the amount to be deducted within the meaning of Article 185(1) of [the Directive]? 3. Is Article 185(2) of [the Directive] to be interpreted as permitting the Member States to make adjustments in the case of the destruction of property where its acquisition remained totally or partially unpaid? 4. Is Article 185(1) and (2) of [the Directive] to be interpreted as precluding a national provision like Article 79(3) of the Law on VAT and Article 80(2)(1) of the [ZDDS], which provides for an adjustment of the deduction made in cases of destruction of property upon the acquisition of which a total payment of the basic amount and the tax calculated was made, and which makes the non-adjustment of a deduction dependent on a condition other than payment? 5. Is Article 185(2) of [the Directive] to be interpreted as ruling out the possibility of an adjustment to the deduction in the case of the demolition of existing buildings with the sole aim of creating new, more modern buildings in their place which fulfil the same purpose as the demolished buildings and are used for transactions which give entitlement to deduction of input VAT?’
26

In those circumstances, the Rechtbank van koophandel te Brussel (Brussels Commercial Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) (a) The Treaty states in Article 282, now Article [3]35 [TFEU], that the [EU] is to be represented by the Commission. Article 335 TFEU, on the one hand, and Articles 103 and 104 of the Financial Regulation, on the other, state that, in administrative matters relating to their operation, the institutions concerned are to represent the [EU], with the possible result that [it] is the institutions, whether or not exclusively, … which may be parties to legal proceedings. There is no doubt that receipt by, amongst others, contractors of payment of inflated prices as a result of collusive practices comes within the concept of fraud. In Belgian national law there is the principle of ‘Lex specialis generalibus derogat’. To the extent to which that principle of law also finds acceptance in [EU] law, is it then not the case that the initiative for bringing the claims (except where the Commission itself was the contracting authority) was vested in the institutions concerned? (b) (Subsidiary question) Ought the Commission not at least to have been conferred with authorisation by the institutions to represent them for the purpose of safeguarding their interests before the courts? (2) (a) Article 47 of the [Charter] and Article 6(1) of the European Convention on Human [Rights] and Fundamental Freedoms [signed in Rome on 4 November 1950 (the ‘ECHR’)] guarantee every person’s right to a fair trial as well as the related principle that no one can be a judge in his own cause. Is it reconcilable with that principle if the Commission, in an initial phase, acts as the competition authority and penalises the conduct complained of – namely, the formation of a cartel – as a breach of Article 81 [EC], now Article 101 [TFEU] after it has itself conducted the investigation in that regard, and subsequently, in a second phase, prepares the proceedings for seeking compensation before the national court and takes the decision to bring those proceedings, while the same Member of the Commission is responsible for both matters, which are connected, a fortiori as the national court seised of the matter cannot depart from the decision imposing penalties? (b) (Subsidiary question) If the answer to Question 2(a) is in the [negative], (there is irreconcilability), how then must the victim (the Commission and/or the institutions and/or the [EU]) of an unlawful act (the formation of the cartel) assert its entitlement to compensation under [EU] law, which is likewise a fundamental right?’
14

Article 1(1) of Regulation No 2670/81 was worded as follows: ‘The products referred to in Article 26(1) of [the basic] Regulation shall be considered to have been exported if: (a) without prejudice to the other provisions of this Regulation, the proof referred to in Article 2 is in the possession of the competent agency of the Member State of production whichever the Member State of export of the C sugar … may have been; (b) the export declaration in question is accepted by the Member State of export before 1 January following the end of the marketing year during which the C sugar … was produced; (c) the C sugar … or a corresponding quantity within the meaning of Article 2(3) has left the customs territory of the Community not later than 60 days after the 1 January referred to in point (b); (d) the product has been exported without either refund or levy as white sugar or raw sugar that has not been denatured … . Except in cases of force majeure, if any of the conditions provided for in the first subparagraph are not fulfilled, the quantity of C sugar … concerned shall be considered to have been disposed of on the internal market. In cases of force majeure, the competent agency of the Member State on whose territory the C sugar … was produced shall decide on the necessary measures on the basis of the circumstances cited by the party concerned. Where the C sugar … is exported from the territory of a Member State other than that in which it has been produced, those measures shall be taken after receiving the opinion, where appropriate, of the competent authorities of that Member State.’