ddrg/super_eurlex huggingface dataset:
7

Article 106 of the Código dos Impostos Especiais de Consumo, (Portuguese Excise Duty Code, hereinafter ‘CIEC’) provides: ‘1. The release for consumption of cigarettes shall be subject to the rules on limitation applicable in the period between 1 September and 31 December of each calendar year. 2. In the period referred to in the preceding paragraph, the release for consumption of cigarettes each month by each economic operator must not exceed the quantitative limits, deriving from the application of a multiplying factor of 10% to the average monthly quantity of cigarettes released for consumption in the 12 months immediately preceding. 3. For the purposes of the preceding paragraph, the calculation of the monthly average shall be based on the total quantity of releases for consumption of cigarettes, non-exempt, between 1 September of the previous year and 31 August of the following year. 4. Each economic operator shall provide to the competent customs office, by 15 September of each year at the latest, an initial declaration indicating its monthly average and setting out the quantitative limit applicable in its case in the limitation period. 5. In exceptional circumstances, duly justified by the sudden change for a limited time of the volume of sales, the failure to comply with those quantitative limits may be authorised, although they shall not be taken into account for the purpose of calculating the average month for the following year. 6. After the expiry of the limitation period and at the latest at the end of the month of January of each year, economic operators shall provide the competent customs office with a declaration of discharge indicating the total quantity of cigarettes actually released for consumption in the limitation period. 7. The amount of cigarettes exceeding the quantitative limit referred to in paragraph 4 are subject to the payment of tax at the rate applicable on the date on which the declaration of discharge is lodged, where it is established that the quantitative limit has been exceeded by the comparison of the information in that document and that processed by the administration without prejudice, where applicable, to the infringement procedure which is required. 8. The rules laid down in this Article are individually applicable on Mainland Portugal, the Autonomous Region of the Azores and the Autonomous Region of Madeira, since the obligations laid down in the preceding paragraph must be fulfilled at the customs office where the release for consumption is dealt with.’
5

Paragraph 3b of the Law on Registration Tax for Motor Vehicles is worded as follows: ‘1. The customs and tax authorities may, upon application, grant authorisation for the tax on leasing vehicles subject to registration with a view to temporary use in Denmark to be paid under subparagraphs 2 and 3 when the vehicle belongs to a business or a permanent place of business in Denmark or elsewhere and when the vehicle is leased for a fixed period of time under a written contract to a natural or legal person resident in Denmark. The contract must contain detailed information on the agreed-upon leasing period. The application shall be submitted either by the leasing company or by the person leasing the vehicle. 2. A tax shall be paid on vehicles subject to registration under the Law on Registration of Vehicles. The registration obligation and therefore obligation to pay the appurtenant tax arises on the date when the vehicle is first used in Denmark by a person resident in Denmark. The tax shall be levied for the entire leasing period under the contract. The tax shall be calculated as follows: (1) for vehicles between zero and three months old, calculated from the time of first registration or use, whether in Denmark or elsewhere, 2% of the calculated registration tax per month begun following the time of first registration or use during the first three months; (2) for vehicles which, at the time the registration obligation arises, are more than three months old at the time of first registration or use in Denmark or elsewhere, 1% of the calculated registration tax per month begun during the following 33 months; and (3) for vehicles which, at the time the registration obligation arises, are more than 36 months old at the time of first registration or use in Denmark or elsewhere, 0.5% of the calculated registration tax per month begun during the following months. 3. At the time of payment, interest shall be added to that portion of the calculated registration tax remaining after payment. Interest shall be calculated at the average lending rate granted by banks to non-financial corporations, as published most recently on 1 January or 1 July, as the case may be, by Danmarks Statistik (Statistics Denmark) as at the date of calculation of the tax. … 9. Leased vehicles on which tax must be paid under subparagraphs 2 and 3 must be covered by a written leasing contract. The contract must state how the vehicle is being leased and include specific information enabling identification of the vehicle, the name and address of the leasing company and the lessee, as well as the leasing amount. The contract must also contain information on whether an option or purchasing obligation has been agreed upon and also the terms thereof. The leasing contract must state specifically the duration of the lease. All users must be referred to in the leasing contract. The type and accessory equipment of the vehicle must be attached to the contract.’
Judgment of the Court (Seventh Chamber) of 16 March 2017 — Bimotor

(Case C‑211/16) ( 1 )

(Reference for a preliminary ruling — Value added tax — Principle of fiscal neutrality — National legislation laying down a fixed maximum ceiling limiting the amount of refund or compensation of credit or excess value added tax)

1. Harmonisation of fiscal legislation—Common system of value added tax—Deduction of input tax—Refund of excess—National legislation laying down a fixed maximum ceiling limiting the amount of refund or compensation of credit or excess value added tax—Lawfulness—Condition—Whether possible for the taxable person to recover the full value added tax credit within a reasonable period (Council Directive 2006/112, Art. 183) (see paras 20-22, 28, 31, 33, operative part)

2. Harmonisation of fiscal legislation—Common system of value added tax—Objectives and economy—Preventing possible tax evasion, avoidance and abuse—Observance of the principle of proportionality (Council Directive 2006/112) (see paras 26, 27)

Operative part

The first paragraph of Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which limits to a set maximum amount the compensation of certain tax debts by value added tax credits, for each taxation period, to the extent that national law provides in any event the possibility for the taxable person to recover the full value added tax credit within a reasonable period.

( 1 ) OJ C 251, 11.7.2016.
State aid—Concept—Grant of an advantage to the beneficiaries—Complex evaluation of economic matters—Judicial review—Limits

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(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)
1.

Declares that, by not creating a national electronic register of road transport undertakings and by not establishing the interconnection with the electronic registers of other Member States, the Republic of Poland has failed to fulfil its obligations under Article 16(1) and (5) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council, of 21 October 2009, establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC.
It is clear from Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora that any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon is subject to the environmental protection mechanism prescribed in that article. In that regard, the fact that a construction project is not situated in the Natura 2000 areas, but rather at a considerable distance from them, in no way precludes the applicability of the requirements laid down in Article 6(3) of Directive 92/43.

Competent national authorities may authorise an activity subject to an assessment, within the meaning of Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, only if they have made certain that it will not adversely affect the integrity of the protected site. This is so when there is no reasonable doubt from a scientific point of view as to the absence of such adverse effects. In that regard, the application of the precautionary principle in the context of the implementation of that provision requires the competent national authority to take into account, inter alia, the protective measures forming part of the project at issue aimed at avoiding or reducing any direct adverse effects on the site, in order to ensure that it does not adversely affect the integrity of the protected site.

It is at the date of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question. Thus, a Member State fails to fulfil its obligations under Article 6(3) of Directive 92/43, where it authorises a construction project on the basis of an impact assessment which concluded there would be no adverse effects on the integrity of the Natura 2000 areas, in so far as that assessment did not contain definitive data regarding the effectiveness of a protective measure included in that project, and merely stated that its effectiveness could only be confirmed following several years of monitoring.

(see paras 33, 34, 37, 42, 45)
Appeal—Grounds—Mistaken assessment of the facts—Inadmissibility—Review by the General Court of the assessment of the evidence—Possible only where the clear sense of the evidence has been distorted

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 56, 57, 73, 97)
In that regard, it should be noted that, in accordance with Article 17(1) of the Basic Anti-Dumping Regulation, in cases where the number of complainants, exporters or importers, of types of product or transactions is large, the composition of a sample is likely to be determined according to two alternative methods. The investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically representative on the basis of information available at the time of the selection. It may however, at the discretion of the institutions, also be limited to the largest volume of production, sales or exports which can reasonably be investigated within the time available.

It follows that, where they select the second sampling method, the institutions of the Union have some discretion, relating to the prospective assessment of what it is reasonably possible for them to accomplish in the conduct of their investigation within the prescribed time-limit.

The reviews must, in accordance with Article 11(5) of the Basic Anti-Dumping Regulation, be carried out expeditiously and normally be concluded within 12 months of the date of their initiation, stating that the institutions are also required, under Article 6(8) of the Basic Anti-Dumping Regulation, to examine for accuracy as far as possible the information provided by the parties and upon which their findings are based.

It should be noted, moreover, that the Court has already held that the institutions enjoyed a broad discretion in the choice of sampling (see, to that effect, judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 93), so that the EU Courts must, in the context of their review, restrict themselves to verifying that that choice is not based on incorrectly established facts or vitiated by a manifest error of appraisal.

(see paras 27, 30-32)
Appeal—Grounds—Lack of specific criticism of a point of the General Court’s reasoning and of legal arguments in support of the appeal—Inadmissibility

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))

(see paras 34, 35)
Where the Commission adopts, following the annulment in part of a decision imposing a fine for infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area, a decision amending the initial decision, imposing a different fine amount on the undertaking concerned, the content of the statement of objections presented to that undertaking with a view to the adoption of the initial decision may be taken into consideration in assessing whether the rights of defence of that undertaking were respected in the procedure which led to the adoption of the amending decision, in so far as the annulment in part of the initial decision did not affect the validity of the initial statement of objections.

The annulment of an EU act does not necessarily affect preparatory measures, since the procedure for replacing the annulled measure may, in principle, be resumed at the very point at which the illegality occurred. The annulment of the act does not, in principle, affect the validity of the measures preparatory to that measure, which were taken before the stage at which the defect was observed. If it is found that the annulment does not affect the validity of the prior procedural measures, the Commission is not, as a result of that annulment alone, required to present the undertakings concerned with a new statement of objections.

Furthermore, although the Commission, by sending a letter of facts, intended to inform Toshiba of the new elements of the method for determining the amount of its fine which the Commission considered necessary following the partial annulment of the initial decision, and although it is undisputed that the undertaking concerned could state its position both in writing and during a meeting on those elements, the fact remains that, by their nature, those elements did not have to be included in a new statement of objections.

(see paras 23, 24, 28, 34)
As regards an employment contract performed in the territory of several Contracting States and where there is no effective centre of professional activities from which an employee performs the essential part of his duties vis-à-vis his employer, the Court has held that Article 5(1) of the Brussels Convention must — in view of the need to establish the place with which the dispute has the most significant link, so that it is possible to identify the courts best placed to decide the case in order to afford proper protection to the employee as the weaker party to the contract and to avoid multiplication of the courts having jurisdiction — be interpreted as referring to the place where, or from which, the employee actually performs the essential part of his duties vis-à-vis his employer. Thus, in such circumstances, the concept of ‘place where the employee habitually carries out his work’ enshrined in Article 19(2)(a) of the Brussels I Regulation must be interpreted as referring to the place where, or from which, the employee in fact performs the essential part of his duties vis-à-vis his employer.

In the present case, the disputes in the main proceedings concern employees employed as members of the air crew of an airline or assigned to the latter. Thus, the court of a Member State seised of such disputes, when it is not able to determine with certainty the ‘place where the employee habitually carries out his work’, must, in order to assess whether it has jurisdiction, identify ‘the place from which’ that employee principally discharged his obligations towards his employer. As the Advocate General pointed out in point 95 of his Opinion, it is also apparent from the case-law of the Court that, to determine specifically that place, the national court must refer to a set of indicia.

As observed by the Advocate General in point 85 of his Opinion, as regards work relationships in the transport sector, the Court, in the judgments of 15 March 2011, Koelzsch (C‑29/10, EU:C:2011:151, paragraph 49), and of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraphs 38 to 41), mentioned several indicia that might be taken into consideration by the national courts. Those courts must, in particular, determine in which Member State is situated (i) the place from which the employee carries out his transport-related tasks, (ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and (iii) the place where his work tools are to be found. In that regard, in circumstances such as those at issue in the main proceedings, and as pointed out by the Advocate General in point 102 of his Opinion, the place where the aircraft aboard which the work is habitually performed are stationed must also be taken into account.

(see paras 58-61, 63, 64)
The provisions of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002, must be interpreted as precluding a law of a Member State, such as that at issue in the main proceedings, which makes candidates’ admission to the competition for entry to the police school of that Member State subject, whatever their sex, to a requirement that they are of a physical height of at least 1.70m, since that law works to the disadvantage of a far greater number of women compared with men and that law does not appear to be either appropriate or necessary to achieve the legitimate objective that it pursues, which it is for the national court to determine.

In that regard, while it is true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force requiring a particular physical aptitude, the fact remains that certain police functions, such as providing assistance to citizens or traffic control, do not clearly require the use of significant physical force (see, to that effect, the judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraphs 39 and 40).

Furthermore, even if all the functions carried out by the Greek police required a particular physical aptitude, it would not appear that such an aptitude is necessarily connected with being of a certain minimum height and that shorter persons naturally lack that aptitude.

In any event, the aim pursued by the law at issue in the main proceedings could be achieved by measures that are less disadvantageous to women, such as a preselection of candidates to the competition for entry into Schools for Police Officers and Policemen based on specific tests allowing their physical ability to be assessed

(see paras 38, 39, 42, 44, operative part)
Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted to the effect that, where a municipal undertaking, whose sole shareholder is a municipality, is wound up by a decision of the municipality’s executive body and its activities are transferred in part to the municipality to be carried on directly by it and in part to another municipal undertaking re-formed for that purpose, whose sole shareholder is also that same municipality, that situation falls within the scope of the directive, provided that the identity of the undertaking in question is preserved after the transfer, which is a matter for the referring court to determine.

(see para. 46, operative part 1)
A tax exemption such as that at issue in the main proceedings, to which a congregation belonging to the Catholic Church is entitled in respect of works on a building intended to be used for activities that do not have a strictly religious purpose, may fall under the prohibition in Article 107(1) TFEU if, and to the extent to which, those activities are economic, a matter which it is for the referring court to determine.

(see operative part)
Case C‑248/16

Austria Asphalt GmbH & Co OG

v

Bundeskartellanwalt

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Reference for a preliminary ruling — Competition — Concentrations between undertakings — Regulation (EC) No 139/2004 — Article 3(1)(b) and (4) — Scope — Definition of ‘concentration’ — Change in the form of control of an existing undertaking which, previously exclusive, becomes joint — Creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity)

Summary — Judgment of the Court (Fifth Chamber), 7 September 2017

Concentrations between undertakings — Definition — Transformation of an undertaking subject to sole control into a joint venture — Included — Conditions — Joint venture performing on a lasting basis all the functions of an autonomous economic entity

(Council Regulation No 139/2004, Art. 3)

As regards the objectives pursued by Regulation No 139/2004, it appears from recitals 5, 6 and 8 thereof that the regulation seeks to ensure that the process of reorganisation of undertakings does not result in lasting damage to competition. Therefore, as is apparent from recital 20 of the regulation, the concept of concentration must be defined in such a manner as to cover operations bringing about a lasting change in the control of the undertakings concerned and therefore in the structure of the market. Thus, as regards joint ventures, these must be included within the ambit of the regulation if they perform on a lasting basis all the functions of an autonomous economic entity.

In that regard, as the Advocate General stated in point 28 of her Opinion, Regulation No 139/2004 does not draw any distinction in its recitals between a newly created undertaking resulting from such a transaction and an existing undertaking hitherto subject to sole control by a group which passes to the joint control of several undertakings. That lack of a distinction is entirely justified due to the fact that, although the creation of a joint venture must be assessed by the Commission as regards its effects on the structure of the market, the realisation of such effects depends on the actual emergence of a joint venture into the market, that is to say, of an undertaking performing on a lasting basis all the functions of an autonomous economic entity. Article 3 of the regulation therefore concerns joint ventures only in so far as their creation provokes a lasting effect on the structure of the market.

Having regard to all of the foregoing considerations, the answer to the question referred is that Article 3 of Regulation No 139/2004 must be interpreted as meaning that a concentration is deemed to arise upon a change in the form of control of an existing undertaking which, previously exclusive, becomes joint, only if the joint venture created by such a transaction performs on a lasting basis all the functions of an autonomous economic entity.

(see paras 21-25, 35)