ddrg/super_eurlex huggingface dataset:
Case C‑144/15

Staatssecretaris van Financiën

v

Customs Support Holland BV

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Reference for a preliminary ruling — Common Customs Tariff — Combined Nomenclature — Headings 2304, 2308 and 2309 — Classification of a soya protein concentrate’

Summary — Judgment of the Court (Ninth Chamber), 3 March 2016

Customs union — Common Customs Tariff — Tariff headings — Soya protein concentrate used as an ingredient in compound feeds for very young calves — Classification under Combined Nomenclature heading 2309

(Council Regulation No 2658/87, as amended by Regulation No 948/2009, Annex I, heading 2309)

The Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 948/2009, must be interpreted as meaning that a soya protein concentrate, used as an ingredient in compound feeds for very young calves, comes under heading 2309 of that nomenclature.

In that respect, as regards Combined Nomenclature heading 2309, the term ‘preparation’ under that heading means either the processing of a product, or a mixture with other products. For it to come under Combined Nomenclature heading 2309, the product at issue must still, firstly, be suitable only for animal feeding and, secondly, have been finally processed or result from a mixture of different substances. Furthermore, it follows from Note 1 to Chapter 23 of the Combined Nomenclature that heading 2309 thereof includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, residues and by-products of such processing.

In order to come under Combined Nomenclature heading 2309, a soya protein concentrate must still result from a process whereby the vegetable material from which it is derived has lost its essential characteristics. In that regard, the process for transforming soya meal, which results in the product concerned, has a specific animal-related purpose since it is intended to create a protein concentrate which, unlike soya meal, may be ingested by very young calves. Thus, the characteristics and objective properties of such a product and, in particular, the elimination or deliberate reduction of certain of the components of the soya meal in order to make that product suitable for inclusion in the feed for a particular type of animal, support the view that that product satisfies the conditions required for classification under Combined Nomenclature heading 2309.

(see paras 36, 38, 40, 41, 49, operative part)
1.

Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemption for certain services closely linked to sport or physical education supplied by non-profit-making organisations to persons taking part in those activities — National legislation exempting the hiring out of berths and sites for the storage of boats to the members of water sports associations in the context of sailing or leisure activities which cannot be equated with the practice of sport or physical education — Not permissible (Council Directive 2006/112, Art. 132(1)(m)) (see paras 21-25, 28, 29)
Case C‑355/15

Bietergemeinschaft Technische Gebäudebetreuung GesmbH und Caverion Österreich GmbH

v

Universität für Bodenkultur Wien

and

VAMED Management und Service GmbH & Co. KG in Wien

(Request for a preliminary ruling from the Verwaltungsgerichtshof)

(Reference for a preliminary ruling — Public procurement — Directive 89/665/EEC — Review procedures in the area of public procurement — Article 1(3) — Legal interest in bringing proceedings — Article 2a(2) — Concept of a ‘tenderer concerned’ — Right of a tenderer definitively excluded by the contracting authority to seek review of a subsequent award decision)

Summary — Judgment of the Court (Eighth Chamber), 21 December 2016

Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Member States’ obligation to provide for a review procedure — Access to the review procedures — No possibility for a tenderer excluded by a decision of the contracting authority which has become final to seek review with a view to obtaining a declaration that the bid of the only other tenderer, who was awarded the contract at issue, is unlawful — Whether permissible

(Council Directive 89/665, as amended by Directive 2007/66, Arts 1(3) and 2a)

Article 1(3) of Directive 89/665, on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66, must be interpreted as not precluding a tenderer who has been excluded from a public procurement procedure by a decision of the contracting authority which has become final from being refused access to a procedure for the review of the decision awarding the public contract concerned and of the conclusion of the contract even where only that unsuccessful tenderer and the successful tenderer submitted bids and the unsuccessful tenderer maintains that the successful tenderer’s bid should also have been rejected.

As is apparent from Article 1(3) and Article 2a of Directive 89/665, that directive ensures effective review of unlawful decisions adopted in the context of a public procurement procedure, by enabling any excluded tenderer to challenge not only the exclusion decision adopted against it, but also, as long as that challenge has not been resolved, the subsequent decisions which would harm it if its exclusion were annulled. In those circumstances, Article 1(3) of that directive cannot be interpreted as requiring that a tenderer must be granted access to a procedure for the review of the award decision where it must be considered a definitively excluded tenderer within the meaning of the second subparagraph of Article 2a(2) of that directive.

(see paras 34-36, operative part)
Article 45 TFEU and Article 7(2) of Regulation No 492/2011 on freedom of movement for workers within the Union must be interpreted as meaning that a child of a frontier worker, who is able to benefit indirectly from the social advantages referred to in the latter provision, such as study finance granted by a Member State to the children of workers pursuing or who have pursued an activity in that Member State, means not only a child who has a child-parent relationship with that worker, but also a child of the spouse or registered partner of that worker, where that worker supports that child.

The latter requirement is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts, to assess, and it is not necessary for them to determine the reasons for that contribution or make a precise estimation of its amount.

It has already been held, when interpreting Article 10 of Regulation No 1612/68 on freedom of movement for workers within the Community, that the status of dependent member of a family, within the meaning of that provision, did not presuppose a right to maintenance. If that were the case, the composition of the family provided for in that provision would depend on national legislation, which varies from one State to another, and that would lead to a lack of uniformity in the application of EU law. Article 10(1) and (2) of Regulation No 1612/68 has also been interpreted as meaning that the status of dependent member of a family is the result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker’s support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated by the principle that the provisions establishing the free movement of workers, which constitutes one of the foundations of the Union, must be construed broadly.

However, such an interpretation applies also where the contribution of a frontier worker to the maintenance of the children of his spouse or recognised partner is at issue.

The status of a family member of a frontier worker who is dependent on that worker may, when it relates to the case of a child of a spouse or recognised partner of that worker, be evidenced by objective factors, such as a joint household shared by that worker and the student.

(see paras 58-60, 64, operative part)
In accordance with Article 1 thereof, Directive 94/62 aims, inter alia, to prevent and reduce the impact of packaging and packaging waste on the environment of the Member States and of third countries, thus providing a high level of environmental protection, by, in particular, requiring Member States to establish a system of collection and recovery of packaging and packaging waste. To that end, as can be seen from Recital 5 and in accordance with Article 2(1) thereof, Directive 94/62 covers all packaging placed on the market in the European Union and all packaging waste.

The term ‘packaging’, within the meaning of Article 3(1) of Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste, must be given a broad interpretation.

Article 3(1) of Directive 94/62 on packaging and packaging waste, as amended by Directive 2004/12, must be interpreted as meaning that roll cores in the form of rolls, tubes or cylinders, around which flexible material is wound and sold to consumers, constitute ‘packaging’ within the meaning of that provision.

First, those roll cores serve as both a support and spool for those flexible products and therefore perform the functions of protection and presentation for those products, within the meaning of the first subparagraph of Article 3(1) of Directive 94/62.

In that respect, roll cores protect from the inside the flexible products wound around them, which strengthens those products, allowing their presentation and facilitating their transport and use. A roll core is, moreover, a ‘non-returnable’ item, within the meaning of the second sentence of the first subparagraph of Article 3(1), once the flexible product wound around it has been used up.

Furthermore, since a roll core is designed to constitute, with the flexible product wound around it, a sales unit for the consumer at the point of purchase, it fulfils the definition of primary packaging set out in point (a) of the second subparagraph of Article 3(1) of Directive 94/62.

Secondly, those roll cores do not meet the criteria of the negative definition set out in point (i) of the third subparagraph of Article 3(1) of Directive 94/62. Unlike tea bags or coffee capsules, cited in Annex I to Directive 94/62 as examples of items which do not constitute packaging within the meaning of that provision, a roll core is not an integral part of the flexible product which it serves as a support and a spool and it is not intended to be consumed or disposed of with that product, but rather — on the contrary — remains and must be disposed of once that product has been used.

(see paras 32-35, 37, operative part)
Article 4 of Regulation No 1346/2000 on insolvency proceedings must be interpreted as meaning that provisions of domestic law of the Member State on the territory of which insolvency proceedings are opened which provide, in relation to a creditor who has not taken part in those proceedings, for the forfeiture of its right to pursue its claim or for the suspension of the enforcement of such a claim in another Member State come within its scope of application.

It is clear from Article 4(1) of Regulation No 1346/2000 that, save as otherwise provided in that regulation, the law applicable to insolvency proceedings and their effects is that of the State of the opening of proceedings (‘lex fori concursus’). In that regard, while it is true that Article 4(2) of Regulation No 1346/2000, which contains a list of the matters falling under the lex fori concursus, makes no specific reference to creditors who have not participated in the insolvency proceedings and, consequently, the effects of those proceedings, or of its closure, on the rights of those creditors, there can, however, be no doubt that those effects must also be assessed on the basis of that lex fori concursus. An interpretation to the effect that the lex fori concursus determines the effects of the closure of the insolvency proceedings, in particular by composition, and the rights of creditors after that closure, but not the effects on the rights of creditors who did not participate in those proceedings, would risk seriously undermining the effectiveness of those proceedings.

Since the forfeiture of unregistered claims is, in principle, allowed, Regulation No 1346/2000 must, a fortiori, also allow a rule of the lex fori concursus which merely suspends enforcement proceedings relating to those claims. The fact that a claim pursued by means of enforcement in a Member State other than the State in which the proceedings were opened is a fiscal claim does not have any bearing. The provisions of Regulation No 1346/2000 do not give the claims of tax authorities of a Member State other than the State of the opening of proceedings any preferential status, in that they should be capable of being subject to enforcement proceedings even after the opening of insolvency proceedings.

(see paras 17, 20, 22, 29, 36, 40, 41, operative part 1 and 2)
In preliminary ruling proceedings, it is not for the Court, given the allocation of functions between itself and the national courts, to determine whether the decision to refer has been taken in accordance with the rules of national law governing the organisation of courts and their procedure or, consequently, to reject the request for a preliminary ruling on the ground that the alleged lack of jurisdiction of the referring court to hear to case in the main proceedings.

A flight, within the meaning of Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, flight consists in an air transport operation, being as it were a unit of such transport, performed by an air carrier which fixes its itinerary.

Article 10(2), read in conjunction with Article 2(f), of Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights must be interpreted as meaning that where a passenger is downgraded on a flight, the price to be taken into account in determining the reimbursement for the passenger affected is the price of the flight on which he was downgraded.

In that regard, the ticket is the document entitling the passenger to transport, which itself is capable of applying, as the case may be, to one or more flights. Each one of those flights which constitutes a unit of transport is, in principle, intended to be performed in accordance with the conditions agreed upon between the passenger and the air carrier. Those conditions include, inter alia, the placing of that passenger in a specific class. Where the air carrier places that passenger on a specific flight in a lower class than that for which his ticket was purchased, that passenger does not benefit, on the flight at issue, from the service agreed upon in consideration for the price paid. However, that downgrading has no impact on the services agreed upon for any other flights which the ticket permits that passenger to take. Accordingly, Article 10(2) of Regulation No 261/2004 does not to apply to those other flights.

Consequently, it is only the price of the flight on which that passenger was downgraded that is to be used as a basis for the reimbursement provided for under that provision, and not the overall price of the transport to which that ticket entitles him. However, where the ticket merely states the overall price for the transport of the passenger and therefore does not specify the price of the flight on which the downgrading took place, the basis should be the part of the price of the ticket corresponding to the quotient resulting from the distance of the flight in question and the total distance which the passenger is entitled to travel.

(see paras 21, 22, 24, 25, 29, 30, 32, operative part 1)
5.

Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether a summary statement of reasons is sufficient (Art. 296, second para., TFEU; Council Decision 2012/635/ CFSP; Council Regulation No 945/2012) (see para. 63)
Article 47 of the Charter of Fundamental Rights of the European Union and the principles of equivalence and effectiveness must be interpreted as not precluding national legislation which exempts legal persons governed by public law from judicial stamping fees when they lodge an objection to the enforcement of a judicial decision relating to the repayment of taxes levied in breach of EU law and exempts those persons from the obligation to lodge a security at the time of bringing an application for a stay of such enforcement proceedings, while the applications submitted by legal and natural persons governed by private law in the context of such procedures remain, in principle, subject to court costs.

In that context, in the first place, the court costs contribute, in principle, to the proper functioning of the judicial system, since such costs constitute a source of funding the judicial activities of the Member States. The exemption from the court stamping fees, established by such national legislation, enjoyed by legal persons governed by public law in such national procedures does not secure by itself a procedural advantage for those legal persons since the payment of those fees by such persons is attributed to the consolidated national budget, which also finances the services provided by the courts.

As regards, in the second place, the exemption from lodging a security required at the time of bringing an application for a stay of such enforcement proceedings which legal persons governed by public law enjoy, Member States are required under EU law to repay, with interest, taxes levied in breach of EU law. Consequently, it is inconceivable that a Member State may rely on a lack of funds in order to justify the impossibility of executing a judicial decision that recognises an individual’s right to repayment of taxes levied in breach of EU law, together with interest. The risk covered by the security cannot materialise in a procedure where the defendant is a legal person governed by public law.

Accordingly, such legislation does not place legal and natural persons governed by public law in a clearly less advantageous position compared with their opponents, legal persons governed by public law, and therefore does not call into question the fairness of that procedure.

(see paras 49-53, 54, 59, operative part)
2.

Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — 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 50-52)
Article 3 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140, and Article 12 of Directive 2002/20 on the authorisation of electronic communications networks and services (Authorisation Directive), must be interpreted as not precluding national legislation that subjects a national regulatory authority, within the meaning of Directive 2002/21, as amended by Directive 2009/140, to provisions of national law applicable to public finances and, in particular, to provisions for limiting and streamlining the spending of public administrative authorities.

The second sentence of the first subparagraph of Article 3(3a) of Directive 2002/21 implies that national regulatory authorities responsible for ex ante market regulation or for the resolution of disputes between undertakings may properly be made subject to certain rules of budgetary monitoring by the national parliament, which includes being subject to ex ante measures that control public spending. Such control measures cannot, therefore, be deemed to impair the independence and impartiality of national regulatory authorities, as guaranteed by Directive 2002/21, and, accordingly, to be incompatible with Article 3 of that directive, unless it can be established that such measures may prevent the authorities concerned from satisfactorily carrying out the tasks assigned to them by that directive and the Specific Directives, or that they are contrary to the conditions that Directive 2002/21 imposes on the Member States to ensure that the national regulatory authorities have to a sufficient degree the independence and impartiality that that directive requires. In that regard, in the light of their fundamentally different functions, a national regulatory authority cannot justifiably claim that Directive 2002/21 requires Member States to guarantee to national regulatory authorities the same quality of independence that EU law provides with respect to central banks.

(see paras 37-39, 43, 48, operative part)