ddrg/super_eurlex huggingface dataset:
51.

An objection could be raised to my proposed interpretation on the ground that in Schoonbroodt ( 32 ) the Court did not take into consideration the objectives which led the Community legislature to adopt Article 8a of Directive 92/81, accepting a narrow interpretation of the definition of ‘standard tanks’. It should nevertheless be borne in mind that, in that judgment, the Court was not interpreting the provision of a directive concerning the taxation of energy products within the internal market, but, by virtue of Belgian legislation, ( 33 ) a provision of a regulation on customs matters, namely Regulation No 918/83. In its judgment the Court admittedly stated that ‘there is no significant difference, in the context of the main proceedings, between the definitions of the term “standard tanks” used in the various provisions which may prove to be relevant’. ( 34 ) The fact remains, however, that the Court’s line of argument is based on settled case-law in customs matters ( 35 ) and not on the purpose of a provision adopted in the context of the internal market. Contrary to the view put forward by Advocate General Jacobs in his Opinion in Schoonbroodt, ( 36 ) I think that it is possible, in interpreting a provision of a directive relating to the internal market, to take into account considerations other than those taken into account in interpreting a provision of a regulation on customs matters even if the wording of those provisions is essentially identical. In particular, it should be borne in mind that, whilst the provisions of regulations are directly applicable, those of directives are binding only as to the result to be achieved. In interpreting the provision of a directive, greater regard must therefore be had to the aim pursued than to its precise wording. This does not in any way prejudge the interpretation of the same definition in the regulation on customs matters.
22.

The Naczelny Sąd Administracyjny (Supreme Administrative Court), which has since come to be hearing the dispute, doubts that the Polish provisions referred to above are compatible with EU law, and on 16 September 2013 referred the following questions to the Court for preliminary ruling, pursuant to Article 267 TFEU: ‘(1) In the light of the system of value added tax resulting from the VAT Directive, in particular Articles 9 and 193, in conjunction with Article 199(1)(g), is a provision of national law permissible, such as that in Article 18 of the Polish VAT Law, which introduces exceptions to the general rules on that tax, in particular with regard to the persons required to calculate and collect the tax, by establishing the concept of paying agent, that is to say, a person who is required, on behalf of the taxable person, to calculate the amount of tax, collect it from the taxable person, and pay it to the tax authority in good time? (2) If Question 1 is answered in the affirmative: (2.1) In the light of the principle of proportionality, which is a general principle of EU law, is a provision of national law permissible, such as that in Article 18 of the Polish VAT Law, under which, inter alia, tax on the supply of immovable property effected through enforcement in respect of goods owned by the debtor or in his possession in breach of existing law is calculated, collected and paid by a court enforcement officer carrying out an enforcement action who, as paying agent, bears liability in the event of failure to fulfil that obligation? (2.2) In the light of Articles 206, 250 and 252 of the VAT Directive and of the principle of neutrality arising therefrom, is a provision of national law permissible, such as that in Article 18 of the Polish VAT Law, under which a paying agent as referred to in that provision is required to calculate, collect and pay, within the tax period of the taxable person, an amount of VAT on a supply, effected through enforcement, of goods owned by that taxable person or in his possession in breach of the law in force, in an amount comprising the product of the proceeds from the sale of the goods, minus VAT, and the applicable rate of that tax, with no reduction of that amount by the amount of input tax from the beginning of the tax period to the date of the collection of that tax from the taxable person?’
44.

Of the many cases referred to in Title II (‘Determination of the legislation applicable’; Articles 13 to 17a) of Regulation No 1408/71, only those set out in Article 13 (‘General rules’) and Article 14b (‘Special rules [applicable] to mariners’) are of interest. ( 15 ) It is my view that, of all those cases, the following do not reflect Mr Kik’s circumstances: (a) A person employed in the territory of one Member State (Article 13(2)(a)), a case in which the legislation of that Member State applies but which is not the case of Mr Kik, who, as we have seen, is not employed in the territory of any Member State, or, if for the present purposes the continental shelf adjacent to a Member State is considered to be the territory of the European Union, has not worked in the territory of a single Member State but rather in the territory of two Member States (the Netherlands and the United Kingdom). (b) A person who is self-employed in the territory of one Member State (Article 13(2)(b)), to whom the legislation of that State applies; that clearly does not reflect the position of Mr Kik, who is an employee. (c) A person employed on board a vessel flying the flag of a Member State (Article 13(2)(c)), a situation in which the legislation of that State is applicable but which does not reflect the case at issue either as Mr Kik works on a Panamanian vessel. (d) A civil servant or a person treated as such (Article 13(2)(d)). (e) A person called up for service in the armed forces, or for civilian service (Article 13(2)(e)). (f) A person employed by an undertaking to which he is normally attached, either in the territory of a Member State or on board a vessel flying the flag of a Member State, who is posted on board a vessel flying the flag of another Member State (Article 14b(1)), a case in which the legislation of the first Member State applies. Clearly, this is not the case of Mr Kik either, since there is no record that he is ‘normally attached’ to the Swiss employer; nor has he worked on the territory of the European Union, for the reasons already stated; and nor has he worked on a vessel flying the flag of a Member State. (g) A person normally self-employed, either in the territory of a Member State or on board a vessel flying the flag of a Member State (Article 14b(2)), none of which are circumstances arising in the present case. (h) A person who performs work in the territorial waters or in a port of a Member State (Article 14b(3)); Mr Kik has not worked in either place. (i) A person employed on board a vessel flying the flag of a Member State and remunerated for such employment by an undertaking or a person whose registered office or place of business is in the territory of another Member State (Article 14b(4)). The legislation of the latter Member State applies if the worker is resident in that Member State (this is not the case of Mr Kik, as he does not satisfy the first condition because he works on a Panamanian vessel).
19.

The Commission based its refusal to grant access on three exceptions: (A) Protection of the purpose of investigations (third indent of Article 4(2) of Regulation No 1049/2001). According to the Commission, the studies concerned had been carried out in order to enable it to monitor the transposition of several directives by the Member States and, if necessary, to initiate the procedure for failure to fulfil obligations under Article 258 TFEU (‘infringement proceedings’ or ‘infringement procedure’) against them. As regards the study included in the first category mentioned above, the Commission stated that it had not yet reached a conclusion on the transposition of the directive concerned. In its opinion, disclosure of the data and conclusions contained within that study — which had not yet been verified and on which the Member State concerned had not had the opportunity to respond — would have exposed that Member State to possibly unjustified criticism and would have undermined the climate of mutual trust required to assess the transposition of the directive in question. As regards the studies at issue in the second category mentioned above, the Commission stated that, in some cases, it had initiated infringement proceedings against the Member States concerned and that, in other cases, it had not yet decided whether such proceedings should be initiated. In the Commission’s view, disclosure of the studies at issue would have undermined the climate of mutual trust necessary to resolve disputes between the Commission and the Member States concerned without having to resort to the judicial stage of such proceedings. (B) Protection of the decision-making process of the institutions (first subparagraph of Article 4(3) of Regulation No 1049/2001). The Commission maintained that those studies had been carried out at its request for purely internal use in the preliminary stage of an investigation concerning the transposition of EU law. The Commission added that it was entitled not to endorse the conclusions of those studies and to use other tools of investigation, including its own internal assessment and information obtained from the dialogue with the Member States concerned. The Commission considered that, since it had not yet made a decision on the conformity of the national legislation with EU law or on whether it was appropriate to initiate infringement proceedings, a matter in respect of which the Commission had broad discretion, disclosure could have undermined its internal decision-making process, which could have exposed it to undue external pressure. (C) Protection of the privacy and the integrity of the individual (Article 4(1)(b) of Regulation No 1049/2001). In the Commission’s view, this exception applied to the disclosure of the names of the authors of some of the studies requested.
10.

Article 74/1 of the Law on electronic communications, which was introduced by Article 51 of the Law of 10 July 2012, provides: ‘1. When the Institute is of the view that the delivery of the social component may represent an unfair burden for a provider, it shall ask each provider of social tariffs to supply the information referred to in paragraph 2 and it shall compile a calculation of the net costs. 2. Each provider of social tariffs shall notify the Institute, according to the detailed rules established in accordance with Article 137(2), at the latest by 1 August of the calendar year following the year under review, of the indexed amount of the cost assessment for the year under review, calculated according to the calculation method set out in the Annex. … 3. The Institute shall determine, for each provider concerned, that an unfair burden exists if the provision of the social component of universal service is excessive in relation to its capacity to pay, taking into account all its own characteristics, in particular the quality of its equipment, its economic and financial situation and its share of the market for publicly available electronic communications services. 4. A fund shall be created for universal service provision in respect of social tariffs, aimed at compensating each provider of social tariffs for whom the provision of the social component of universal service represents an unfair burden and who has submitted a request to the Institute in that regard. The compensation shall correspond to the net cost borne by the operator for whom the provision of the social component of universal service represents an unfair burden. That fund shall have legal personality and shall be administered by the Institute. The fund shall be financed by contributions from the operators who provide the social component of universal service. Their contributions shall be determined in proportion to their turnover with regard to publicly available electronic communications services. The turnover which is taken into account shall correspond to the turnover achieved before tax with regard to the provision of publicly available electronic communications services within the national territory, in accordance with Article 95(2). The administrative costs of the fund shall comprise all the costs connected with the operation of the fund, including the costs inherent in the definition of a cost model based on an efficient theoretical operator according to the type of electronic communications network through which the social component of universal service is provided. The King shall determine the maximum amount of the administrative costs of the fund by decree, after deliberation in the Ministerraad (Council of Ministers). The administrative costs of the fund shall be financed by the operators referred to in the second paragraph, in proportion to their turnover referred to in the third paragraph. 5. The King shall determine the detailed rules for the operation of that mechanism by decree, after deliberation in the Ministerraad, and following advice from the Institute.’
9.

Article 19 (‘Cooperation with Ireland and the United Kingdom’) provides: ‘1. For the purposes of this Regulation, the exchange of information and the cooperation with Ireland and the United Kingdom may take place on the basis of bilateral or multilateral agreements between Ireland or the United Kingdom respectively and one or several neighbouring Member States or through regional networks based on those agreements. The national coordination centres of the Member States shall be the contact points for the exchange of information with the corresponding authorities of Ireland and the United Kingdom within Eurosur. Once those agreements are concluded, they shall be notified to the Commission. 2. The agreements referred to in paragraph 1 shall be limited to the following exchange of information between the national coordination centre of a Member State and the corresponding authority of Ireland or the United Kingdom: (a) information contained in the national situational picture of a Member State to the extent transmitted to the Agency for the purposes of the European situational picture and the common pre-frontier intelligence picture; (b) information collected by Ireland and the United Kingdom which is relevant for the purposes of the European situational picture and the common pre-frontier intelligence picture; (c) information as referred to in Article 9(9). 3. Information provided in the context of Eurosur by the Agency or by a Member State which is not party to an agreement as referred to in paragraph 1 shall not be shared with Ireland or the United Kingdom without the prior approval of the Agency or of that Member State. The Member States and the Agency shall be bound by the refusal to share that information with Ireland or the United Kingdom. 4. Onward transmission or other communication of information exchanged under this Article to third countries or to third parties shall be prohibited. 5. The agreements referred to in paragraph 1 shall include provisions on the financial costs arising from the participation of Ireland and the United Kingdom in the implementation of those agreements.’
51.

In the light of the foregoing considerations, I propose that the Court should give the following answers to the questions referred by the Korkein hallinto-oikeus (Supreme Administrative Court): (1) Article 19(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) is to be interpreted as meaning that the mere splitting of the screen into parts, one of which is given over to advertising, does not constitute sufficient distinction of that advertising from the editorial content. The part of the screen given over to advertising must, in addition, be identified by means of an optical or acoustic signal at the beginning or end of the advertising sequence or by means of a sign shown permanently when the screen is split. That signal or sign must clearly indicate the nature of the communication being broadcast. (2) Article 10(1)(c) and Article 23(2) of Directive 2010/13 are to be interpreted as meaning that information relating to sponsorship broadcast at any time other than at the beginning, during or at the end of the sponsored programme constitutes television advertising and is not covered by the exemption from the maximum permissible advertising time set in Article 23(1) of that directive. (3) Article 23(1) of Directive 2010/13 is to be interpreted as meaning that the maximum permissible broadcasting time set in that provision includes the time from the beginning of the optical or acoustic signal marking the beginning of the advertising break to the end of the optical or acoustic signal marking the end of that break. Where the advertising is separated from the other parts of the programme by spatial means, that maximum covers the entire period during which part of the screen is given over to advertising.
5.

Of the definitions in Article 3 of Directive 2003/87, the following three should be given particular emphasis: ‘For the purposes of this Directive the following definitions shall apply: (b) ‘emissions’ means the release of greenhouse gases into the atmosphere from sources in an installation …; … (e) “installation” means a stationary technical unit where one or more activities listed in Annex I are carried out and any other directly associated activities which have a technical connection with the activities carried out on that site and which could have an effect on emissions and pollution; … (t) “combustion” means any oxidation of fuels, regardless of the way in which the heat, electrical or mechanical energy produced by this process is used, and any other directly associated activities, including waste gas scrubbing; …’
5.

The Ordonnance relative aux services de taxis et aux services de location de voitures avec chauffeur (the Order on taxi services and private hire vehicle services) of 27 April 1995 contains the following provisions: ‘Article 2. For the purposes of this Order, the following terms shall bear the following meanings: 1. “taxi services”: services which involve the transport of passengers for remuneration by motor vehicle with a driver, and which fulfil the following conditions: ... (c) where the vehicle is used as a taxi, provision of the transport shall relate to the whole vehicle and not to the individual seats, and where it is used as a shared taxi with the authorisation of the Government of the Brussels-Capital Region, provision of the transport shall relate to individual seats and not to the vehicle itself; (d) the destination shall be decided by the client; 2. “private hire vehicle services”: all services, other than taxi services, involving the transport of passengers by motor vehicle for remuneration which are operated with cars, goods/passenger vehicles or minibuses, with the exception of vehicles equipped as ambulances; … Article 3. No person may, without authorisation from the Government [of the Brussels-Capital Region], operate a taxi service with one or more vehicles departing from a public road or any other location not open to public traffic situated in the territory of the Brussels-Capital Region. ... … Article 16. No person may, without authorisation from the Government [of the Brussels-Capital Region], operate in the Brussels-Capital Region a private hire vehicle service with one or more vehicles. Only operators holding an authorisation issued by the Government [of the Brussels-Capital Region] may provide services of which the point of departure for the user is situated in the territory of the Brussels-Capital Region.’
13.

Article 10 of Legge of 8 May 1998 no. 146 ( 6 ) (Law No 146/1998) provides: ‘1. The tax assessments based on the sectoral studies … shall apply to taxpayers in accordance with the procedures laid down in this Article when declared income or remuneration is less than the income or remuneration which may be determined on the basis of such studies. … 3 bis. In the cases referred to in paragraph 1, the [Tax Office] shall, before notifying the tax assessment notice, invite the taxpayer to appear under Article 5 of Legislative Decree No 218 of 19 June 1997. 3 ter. In the event of income inadequacy determined on the basis of the sectoral studies, the reasons justifying the income inadequacy declared to be inappropriate for those resulting from the application of these studies may be certified. The reasons for inconsistencies between the declaration and the economic indicators identified by the abovementioned studies can also be certified. Such a certificate shall be issued at the request of taxpayers … ... 5. For the purposes of [VAT], to the higher income or remuneration, determined on the basis of the said sectoral studies, taking into account the existence of non-taxable transactions or transactions subject to special arrangements, the average rate resulting from the ratio between the tax on taxable transactions and the turnover declared, net of tax on supplies of depreciable goods, and the turnover declared, is applied. ... 7. A commission of experts appointed by the Minister, also taking into account the reports made by professional economic organisations and professional orders, shall be set up by decree of the Ministry of Finance. This commission, before the approval and publication of each sectoral study, shall deliver an opinion on the capacity of these studies to represent the reality to which they refer. … …’
27.

Article 8 of Directive 2001/29 must therefore be regarded not as an isolated provision of a very general nature but rather as an element of the harmonised system of protection of intellectual property organised by Directive 2004/48. That system goes further than the mere procedural autonomy of Member States by placing specific obligations on them, observance of which, including in their procedural aspect, is amenable to review by the Court, which goes beyond the classic review of the principles of equivalence and effectiveness. A different interpretation would deprive Directive 2004/48 of its raison d’être, as it would add nothing by comparison with the obligation, already borne by the Member States under the principle of effectiveness, to ensure the practical effect of the substantive provisions of EU law in the sphere of intellectual property. In fact, it would be illogical to consider that the EU legislature envisaged a directive consisting of obligations that might be rendered otiose by the effect of the procedural rules of the Member States. In addition, Directive 2004/48 has an autonomous scope, since according to Article 2(1) it is to apply not only to the protection of intellectual property rights harmonised at the level of EU law, but also to the rights as provided for by the domestic laws of the Member States. That directive cannot therefore be reduced to merely giving specific form to the general principle of effectiveness of the protection of the rights conferred by EU law, which applies, in the context of the procedural autonomy of the Member States, in the absence of specific provisions of EU law.