ddrg/super_eurlex huggingface dataset:
Case C‑484/17

K

v

Staatssecretaris van Veiligheid en Justitie

(Request for a preliminary ruling from the Raad van State (Netherlands))

(Reference for a preliminary ruling — Directive 2003/86/EC — Right to family reunification — Article 15 — Refusal to grant an autonomous residence permit — National legislation providing for a requirement to pass a civic integration)

Summary — Judgment of the Court (Third Chamber), 7 November 2018

Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Entry and residence of family members — Entitlement to autonomous residence after five years of residence — National legislation permitting an application for an autonomous residence permit to be rejected on the ground that a civic integration test not been shown to have been passed — Lawfulness — Condition — Proportionality

(Council Directive 2003/86, Art. 15(1) and (4))

Article 15(1) and (4) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification does not preclude national legislation, such as that at issue in the main proceedings, which permits an application for an autonomous residence permit, lodged by a third country national who has resided over five years in a Member State by virtue of family reunification, to be rejected on the ground that he has not shown that he has passed a civic integration test on the language and society of that Member State provided that the detailed rules for the requirement to pass that examination do not go beyond what is necessary to attain the objective of facilitating the integration of those third country nationals, which is for the referring court to ascertain.

For that purpose, the referring court must ensure, in particular, that the knowledge required to pass the civic integration examination is at a basic level, that the condition imposed by the national legislation does not lead to an autonomous residence permit not being granted to third country nationals who have demonstrated their willingness to pass the examination and have made every effort to achieve that objective, that due account is taken of specific individual circumstances and that the fees relating to that examination are not excessive (see, to that effect, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraphs 54 to 70).

In that regard, it should be noted, in particular, that circumstances, such as the age, level of education, economic situation or health of a sponsor’s relevant family members, must lead the competent authorities not to subject the grant of an autonomous residence permit to passing a civic integration examination, when, due to those circumstances, they are unable to take or pass that examination (see, to that effect, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 58).

(see paras 22-24, operative part)
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste.

That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner. The taste of a food product cannot, however, be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed. Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.

(see paras 41-43, 46, operative part)
Article 146(1)(e) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, on the one hand, and that provision in conjunction with Article 153 of that directive, on the other hand, must be interpreted as precluding a tax practice of a Member State under which the exemption from value added tax for, respectively, the supply of transport services directly connected with the exportation of goods and the supply of services by intermediaries taking part in those supplies of transport services is subject to production by the taxable person of a customs export declaration in respect of the goods concerned. In that regard, it is for the competent authorities, for the purposes of granting those exemptions, to examine whether compliance with the condition relating to the exportation of the goods concerned can be inferred, with a sufficiently high degree of probability, from all of the information that may be available to those authorities. In that context, a TIR carnet which is certified by the customs offices of the third country of destination of the goods and which is produced by the taxable person constitutes evidence which, in principle, those authorities must duly take into account, unless they have specific reasons to doubt the authenticity or reliability of that document.

(see para. 68, operative part)
Case C‑672/17

Tratave — Tratamento de Águas Residuais do Ave SA

v

Autoridade Tributária e Aduaneira

(Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD))

(Reference for a preliminary ruling — Value added tax (VAT) — Taxable amount — Reduction — Principle of fiscal neutrality)

Summary — Judgment of the Court (Sixth Chamber), 6 December 2018

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Reduction in the case of total or partial non-payment — National measures derogating therefrom — National legislation which makes the reduction of the taxable amount contingent on the taxable person giving prior notice of its intention to cancel the tax for the purposes of correcting the deduction of tax that the latter has made — Admissibility, also under the principle of fiscal neutrality

(Council Directive 2006/112, Arts 90 and 273)

The principle of neutrality as well as Articles 90 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides that the reduction of the taxable amount for value added tax (VAT), in the event of non-payment, cannot be made by the taxable person until it has given prior notice of its intention to cancel all or part of the VAT to the purchaser of goods or services, if that purchaser is a taxable person, for the purposes of correcting the deduction of VAT that the latter has made.

With respect to the principles of fiscal neutrality and proportionality, it must be observed that this requirement, which enables the debtor to be informed of the fact that he must adjust the VAT amount, which he may have been able to deduct as input tax, is likely to contribute not only to ensuring the correct collection of VAT and the avoidance of tax evasion but also to eliminating the risk of loss of tax revenue (see, by analogy, judgment of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraphs 32 and 33).

(see paras 36, 42, operative part)
Moreover, EU law does not require national courts to raise of their own motion an issue concerning the breach of provisions of EU law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (see, to that effect, judgment of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93 , EU:C:1995:441 , paragraphs 21 and 22 ).

In that regard, it is appropriate, first, to note that the second subparagraph of Article 32(4) of Directive 2004/18, read in the light of recital 11 of that directive, provides that, where a framework agreement has been concluded with several successful bidders, subsequent contracts are to be concluded after competition has been reopened between the parties to the framework agreement in relation to the terms that have not been fixed. It follows from those provisions that the requirement to be an original party to the framework agreement applies only to economic operators, as it is out of the question that contracting authorities would be required to compete amongst themselves.

It follows from the findings above that the purpose of the second subparagraph of Article 32(2) of Directive 2004/18 is to allow a contracting authority to give other contracting authorities access to a framework agreement that it is proposing to conclude with the economic operators who will be original parties thereto. It is not, therefore, a requirement of the second subparagraph of Article 32(2) of Directive 2004/18 that a ‘secondary’ contracting authority, such as the ASST of Valcamonica in the main proceedings, be a signatory to the framework agreement in order for it to be able to award a subsequent contract at a later date. It is sufficient that such a contracting authority appear as a potential beneficiary of that framework agreement from the date on which it is concluded by being clearly identified in the tender documents with an explicit reference that makes both the ‘secondary’ contracting authority itself and any interested operator aware of that possibility. That reference can appear either in the framework agreement itself or in another document, such as an extension clause in the tender specifications, as long as the requirements as to advertising and legal certainty and, consequently, those relating to transparency are complied with.

(see paras 51, 52, 55, 56)
13

Under Articles 339 and 340 of the Code of Civil Procedure, a court is to deliver a default judgment if the defendant was not present at the hearing set and at the same time did not make oral or written representations. Article 343 of the Code of Civil Procedure provides that a default judgment is to be delivered to the offices of both parties together with information on the avenues of appeal available to them. Under Article 344(1) of the Code of Civil Procedure, a defendant against whom a default judgment has been handed down may lodge an objection within two weeks of the judgment being served on him. In accordance with Article 394(1)(9) and (2) of the Code of Civil Procedure, a party may, if he has not lodged an appeal with regard to the substance of the dispute, lodge a complaint with the appellate court, within a week of delivery, against the judgment of the court of first instance concerning reimbursement of the costs and determination of how the costs of the proceedings are to be apportioned between the parties.
27

It was in those circumstances that the Administrativen sad Varna (Varna Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the rule provided for in the explanatory notes in Table 3 of standard EN 590 (now EN 590:2014), which states that the “EU Common Customs Tariff definition of gas oil may not apply to the grades defined for use in arctic or severe winter climates”, mean that, for that type of fuel, it is possible that the general rules contained in additional note 2(d) and (e) to Chapter 27 [of the CN] do not apply for the purposes of tariff classification of the goods? (2) If the answer to the first question is in the affirmative, and if it is established that the goods in respect of which customs duties arise correspond to the definition of diesel for use in “arctic or severe winter climates” in accordance with the criteria set out in Standard EN 590, must that fuel be classified under tariff subheading 2710 19 43 of the CN, which corresponds to “gas oils”, or must the general rules contained in additional note 2(d) and (e) to Chapter 27 [of the CN] apply? (3) If the answer to the first question is in the affirmative, what are the criteria to be used to determine when the definition of gas oil under the Customs Tariff of the European Union should apply and when it is necessary to use the requirements and test methods in accordance with standard EN 590, for the purposes of the tariff classification of the goods? (4) Are the methods and analysis indicators set out in additional note 2(d) and (e) to Chapter 27 [of the CN] sufficient in order to characterise a product fully and accurately as a “gas oil”, or is it necessary to take into consideration all of the product’s characteristic chemical indicators?’
51

It follows from the foregoing that Articles 28 and 30 TFEU must be interpreted as not precluding legislation of a Member State which provides that the basis of assessment for contributions levied on the annual turnover of companies, provided that the latter reaches or exceeds a certain amount, is calculated by taking into account the representative value of the goods transferred by or on behalf of a taxable person, for the purposes of his business, from that Member State to another EU Member State, that value being taken into account from the time of that transfer, whereas, in the case where the same goods are transferred by or on behalf of the taxable person, for the purposes of his business, within the territory of the Member State concerned, their value is taken into account in that basis of assessment only at the time of their subsequent sale, on condition that: – first, the value of those goods is not taken into account in that basis of assessment for a second time at the time of their subsequent sale in that Member State; – secondly, their value is deducted from that basis of assessment when those goods are not intended to be sold in the other Member State or have been transferred back to the Member State of origin without having been sold, and – thirdly, the advantages stemming from the use of those contributions do not offset in full the burden borne by the national product marketed on the national market when it is placed on the market, this being a matter for the referring court to ascertain.
22

In those circumstances, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Pursuant to and for the purposes of the third [subparagraph] of Article 21(5) of Directive [2003/96], must entities which produce electricity for their own use be small producers in order to be regarded as distributors, and [thus] subject to tax in accordance with the first [subparagraph] of Article 21(5) of that directive, so that other entities (those which are not small producers) which produce electricity for their own use are excluded from that classification as distributors, or must all entities which produce electricity for their own use (regardless of their respective size and of whether they do so as their main or secondary economic activity), and are not exempt as small producers under the second sentence of the third [subparagraph] of Article 21(5) of that directive, be regarded as distributors, and [thus] subject to tax in accordance with the first [subparagraph] of Article 21(5) of that directive? (2) In particular, may an entity, such as the one at issue in these proceedings, which is a large electricity producer, producing around 9% of the national energy for sale to the national grid, be regarded as “an entity producing electricity for its own use”, as referred to in Article 21(5) of Directive [2003/96], when only a small part of the electricity which it produces is consumed in its own production of new electricity as an integral part of its production process?’
7

Paragraph 8 of that law provided: ‘(1) Sales tax shall be paid by sole traders and legal persons having a trading or service licence within the territory of a municipality or city. The sales tax, depending on the establishment, shall be paid by traders within the meaning of the kaubandustegevuse seadus [Law on commercial activity] who are registered in the register of economic activities and who conduct their activity in the field of retailing, catering or the provision of services. (2) Sales tax shall be charged on the value, in the sale price, of the goods and services sold in the territory of the municipality or city by the taxpayer. The sale price of the goods and services within the meaning of the present law is the taxable value, excluding the sales tax, of the … turnover laid down in the käibemaksuseadus (Law on turnover tax). (3) The amount of the sales tax, which must not exceed 1% of the value, shall be established by the municipal or city council in the sale price of the goods and services referred to in subparagraph 2 of this paragraph. (4) The charging period for sales tax shall be the quarter. (5) The taxpayer shall: (1) calculate the sales tax on the value of the goods and services sold by him in the territory of the municipality in accordance with the amount laid down in the council’s tax regulation; (2) submit to the tax administrator determined in the council’s decision, by the 20th day of the month succeeding the quarter, the tax declaration determined by the Ministry of Finance with respect to sales tax; (3) pay the sales tax into the budget of the local authority by the deadline for submission of the declaration. (6) The executive of the municipality or city shall be entitled to grant abatements and exemptions from the sales tax on the conditions and in the cases determined by the council.’
3

Article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18), provides: ‘For the purposes of this directive, the following meanings shall apply: (1) “product”: any industrially manufactured product and any agricultural product, including fish products; (2) “service”: any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. … (3) “technical specification”: a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures. … (4) “other requirements”: a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing; (5) “rule on services”: requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point 2, in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. … (11) “technical regulation”: technical specifications and other requirements or rules or services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. … This directive shall not apply to those measures Member States consider necessary under the Treaty for the protection of persons, in particular workers, when products are used, provided that such measures do not affect the products.’
31

In the present case, it is apparent from the file before the Court that the services at issue were provided to Ryanair when it intended, by the planned acquisition of shares in the target company, to pursue an economic activity consisting in providing to that company management services subject to VAT. Thus, it appears that, first, Ryanair acted as a taxable person at the time it incurred the expenditure linked to the services at issue. By doing so, Ryanair thus benefits, in principle, from the right to deduct VAT paid on the services at issue immediately, even if, ultimately, that economic activity, which was to give rise to taxable transactions, was not carried out and, accordingly, did not give rise to such transactions. Second, as regards the conditions for the exercise of the right to deduct and more specifically the scope of that right, the expenditure incurred for the purpose of the acquisition of the shares of the target company must be regarded as being attributable to the performance of that economic activity which consisted in carrying out transactions giving rise to a right to deduct. On that basis, that expenditure has a direct and immediate link with that economic activity as a whole and, consequently, is part of its general costs. It follows that the corresponding VAT gives rise to the right to deduction in full.