ddrg/super_eurlex huggingface dataset:
12.

Lastly, I shall consider the Parliament's argument that its Bureau gave a binding interpretation of the Rules on 12 December 1990 and that, as a result, Beate Weber is not entitled to a transitional allowance. The initial version of the Rules was adopted by the Bureau of the European Parliament on 18 May 1988. Of course, the Bureau does have the power to amend the Rules, as it did on 24 June 1992, that is to say, at a time which is not relevant to this case. ( 16 ) Yet the decision of 12 December 1990 is of a completely different kind. The documents produced to the Court by the Parliament, more specifically the excerpts from the minutes of the meetings of the College of Quaestors held on 18 October and 8 November 1990, also show that, among other matters, the question whether the Rules of 18 May 1988 also applied to MEPs voluntarily leaving the Parliament during a five-year term was considered. Following that consideration of actual cases, the Parliament's Bureau declared on 12 December 1990 (two days before Beate Weber gave up her seat) that the transitional allowance had to be ‘considered’ an end-of-legislature allowance, but that the College of Quaestors would nevertheless investigate sufficiently reasoned requests on a case-by-case basis and then report to the Bureau. ( 17 ) In its defence, the Parliament maintains that this interpretation given by its Bureau constitutes an authentic — and hence binding — interpretation because it was given by the organ which actually adopted the Rules. I am not persuaded by that argument at all. A cautious approach should be taken to the technique of the ‘authentic interpretation’ of texts, since it entails giving retroactive effect to the ‘newly’ interpreted text. Such retroactive effect, which departs from the normal manner of rulemaking and is at odds with the principle of legal certainty, can, to my mind, be applied only very exceptionally and must be duly reasoned. It cannot — as in this case — be imposed incidentally when applying the existing Rules to actual cases. In addition, the Bureau's interpretation of 12 December 1990 conflicts with the principle of legal certainty in another respect too. After laying down the principle that the Rules only apply where an MEP's term of office comes to end at the end of a parliamentary term, the interpretation adopted goes on to authorize exceptions in individual cases without indicating what criteria to be applied in that regard. I find it difficult to square that interpretation with the principle of legal certainty, compliance with which, according to the Court, constitutes a binding requirement in the case of rules entailing financial consequences. ( 18 ) Applied to the present case, this means that interested parties must be able to foresee with certainty in what cases they may or may not be precluded from being granted a financial benefit such as the transitional allowance.
3.

As the Court has consistently held, mere administrative practices cannot be regarded as proper fulfilment of the obligation imposed on Member States to which directives are addressed. ( 2 ) Such practices can be changed as and when the authorities please and are not publicized widely enough. The expression ‘administrative practices’ also includes internal memoranda and circulars. ( 3 ) It is also settled law that the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts. ( 4 ) In order to secure the full implementation of directives in law and not only in fact, Member States must establish a clear legal framework in the area in question. ( 5 )
6.

That article, under the heading ‘Exemptions within the territory of the country’, provides inter alia: ‘(...). B. Other exemptions Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse: (...) (b) the leasing or letting of immovable property excluding: 1. the provision of accommodation, as defined in the laws of the Member States, in the hotel sector or in sectors with a similar function (...); 2. the letting of premises and sites for parking vehicles; 3. lettings of permanently installed equipment and machinery; 4. hire of safes. Member States may apply further exclusions to the scope of this exemption; (...) (g) the supply of buildings or parts thereof, and of the land on which they stand, other than as described in Article 4(3)(a); (...) C. Options Member States may allow taxpayers a right of option for taxation in cases of: (a) letting and leasing of immovable property; (b) the transactions covered in B (...) (g) (...). Member States may restrict the scope of this right of option and shall fix the details of its use.’
4.

The procedure by which the decreto ingiuntivo is obtained is a rapid, simple, ex parte procedure by which a creditor may obtain an enforceable court order against a debtor. The creditor applies, with all supporting written evidence, for an order for payment of the sum of money owed or for delivery of specified goods (Article 633 of the CCP). Where all the conditions of Article 633 are fulfilled, the court makes an order that the sum claimed shall be paid or the goods delivered within 20 days (Article 641). That period can be reduced to five days if the applicant shows just cause or it can be increased to 30 days. According to Article 643 of the CCP a copy of the order together with a copy of the application is served on the defendant who then has until the end of the period set in accordance with Article 641 to oppose the order. Article 643, paragraph 3, states that the joint service of the order and the application mark the start of the proceedings: it is only upon that joint service that the defendant is made aware that proceedings have been commenced against him. In normal circumstances, the order itself is not executory until after the expiry of the period set and until the court has declared it to be executory, but the applicant may request that it be made executory on an interim basis if the action is based on a cheque or a negotiable instrument or in other specified cases (Article 642). If the defendant does not oppose the order within the time specified or if the court finds that the opposition is unfounded, the applicant can apply to the court, either orally or in writing, for a declaration that the order is executory. The court must require that the order be served again if it knows or has reason to believe that the defendant did not know of it (Article 647, paragraph 1, infine). According to Article 650, the defendant may oppose the order after the expiry of the period laid down in the order if he can demonstrate that he did not know of it because of an irregularity in the service or for reasons amounting to force majeure. If the defendant opposes the order, the procedure becomes a normal adversary procedure before the court seised (Article 645, paragraph 2). Finally, it may be noted that Article 633, paragraph 3, specifies that the order cannot be made if it has to be served outside Italy or the Italian sovereign territories.
3.

The relevant provisions of Article 17 of the Sixth Directive provide as follows: ‘(2) In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay: (a) value added tax due or paid in respect of goods or services supplied or to be supplied to him by another taxable person; (...) (3) Member States shall also grant to every taxable person the right to a deduction or refund of the value added tax referred to in paragraph (2) in so far as the goods and services are used for the purposes of: (a) transactions relating to the economic activities as referred to in Article 4(2) carried out in another country, which would be eligible for deduction of tax if they had occurred in the territory of the country; (...) (4) The Council shall endeavour to adopt before 31 December 1977, on a proposal from the Commission and acting unanimously, Community rules laying down the arrangements under which refunds are to be made in accordance with paragraph (3) to taxable persons not established in the territory of the country.’ The Council adopted those rules in the Eighth Directive, Article 2 of which provides that ‘each Member State shall refund to any taxable person who is not established in the territory of the country but who is established in another Member State, subject to the conditions laid down below, any value added tax charged in respect of services or movable property supplied to him by other taxable persons in the territory of the country (...), in so far as such goods and services are used for the purposes of the transactions referred to in Article 17(3)(a) and (b) of Directive 77/388/EEC (...)’. With regard to the conditions to which the refund is subject, Article 3 states in particular that: ‘To qualify for refund, any taxable person as referred to in Article 2 who supplies no goods or services deemed to be supplied in the territory of the country shall: (...) (b) produce evidence, in the form of a certificate issued by the official authority of the State in which he is established, that he is a taxable person for the purposes of value added tax in that State. However, where the competent authority referred to in the first paragraph of Article 9 already has such evidence in its possession, the taxable person shall not be bound to produce new evidence for a period of one year from the date of issue of the first certificate by the official authority of the State in which he is established. Member States shall not issue certificates to any taxable persons who benefit from tax exemption pursuant to Article 24(2) of Directive 77/388/EEC [which establishes a special scheme for small undertakings]; (c) certify by means of a written declaration that he has supplied no goods or services deemed to have been supplied in the territory of the country (...). (...)’. The first paragraph of Article 5 provides that, ‘for the purposes of this directive, goods and services in respect of which tax may be refundable shall satisfy the conditions laid down in Article 17 of Directive 77/388/EEC as applicable in the Member State of refund’.
11.

The opening part of the application appears also to refer to an infringement consisting in a failure to notify the Commission of the measures necessary to transpose the directive. Even if the application could be construed as seeking a declaration of an infringement in that respect too, it is otiose to examine that question since in any event the Kingdom of Spain has failed to adopt the necessary measures within the prescribed period. ( 5 )
10.

Following the clearance of the EAGGF accounts in 1989, the Commission of the European Communities came to the view that the documentation used by Ireland to authorize removal of the beef from the customs-warehousing procedure with advance payment of export refunds did not satisfy the conditions laid down by Regulation No 3665/87. Since a more detailed investigation was necessary to determine the economic consequences of that noncompliance, the clearance of that expenditure was postponed. ( 9 ) In the Summary Report for 1990, ( 10 ) the Commission decided that in 1989 and 1990 Ireland had used a procedure contrary to Regulation No 3665/87. First, the maximum storage period (nine months in 1989 and seven months in 1990) had been exceeded in the case of a significant quantity of beef. Secondly, there were cases in which the meat had left the customs territory of the Community after expiry of the 60-day period following the export declaration. Finally, the documentation used by Ireland to authorize removal of the beef from the warehousing procedure did not constitute an export declaration or ad hoc equivalent document for the purposes of Article 30 of Regulation No 3665/87. Finally, the Commission considered that the Irish authorities had not required from the exporters the documents necessary for proper verification of compliance with the requirements for the grant of export refunds, so that irregularities might have occurred. Since Ireland agreed to resolve the problem and the risk of fraud for the EAGGF was limited, the Commission decided to disallow only 2% of the total expenditure affected by that irregularity in 1989 and 1990, which came to a total of IR £6343429 (3823133 in 1989 and 2520296 in 1990).
6.

In the context of that dispute the Chamber for Contentious Administrative Affairs of the Tribunal Superior de Justicia de Canarias of Las Palmas de Gran Canaria, ( 4 ) by order of 4 January 1994, has asked the Court of Justice to give a preliminary ruling on the following questions: ‘1. Does the requirement imposed by a Member State that petroleum product wholesalers wishing to establish themselves in its territory must supply a specific number of places in order to ensure supplies or cover throughout the national territory, taking into account the problems of insular regions in certain Member States: (a) involve, in the light of Articles 3(c), 52 and 53 of the Treaty, a restriction incompatible with Community law in that it renders ineffective its provisions relating to the right of establishment and is not “objectively necessary” to secure the objective pursued? (b) involve, in the light of the provisions of the Treaty relating to the protection of free competition, a restriction on that Community freedom, which may affect trade between Member States and prejudice the achievement of the objectives laid down in the Treaty concerning internal trade, and consequently fall within the scope of the prohibition in Article 85, read in conjunction with Articles 5 and 6 of the Treaty, thereby infringing Article 102(1)? (c) constitute a measure having equivalent effect, within the meaning of Article 30 of the Treaty, which affects intra-Community trade? 2. If the requirement set out at the beginning of the first question is considered to be a restriction on the right of free establishment, does Article 56 of the Treaty or the concept of “public interest” apply, and if so in what conditions, in circumstances concerning the principle of equivalence of the conditions for taking up and pursuing activities as self-employed persons, and does the margin of discretion conferred on the Member States fall to be reviewed therefore by the Community judicature or by the national courts, and in the latter case on what criteria of interpretation? 3. If the requirement set out at the beginning of the first question is considered to be a measure of equivalent effect, is it incompatible with the free movement of goods or can it be considered to be a restriction which is lawful by virtue of Article 36 of the Treaty or the case-law of the Court of Justice concerning the “rule of reason”?’ The questions concern the interpretation of Articles 3(c), 5, 6, 30, 36, 52, 53, 56, 85 and 102(1) of the Treaty. For the replies I shall consider those articles in numerical order. However, some preliminary remarks fall to be made as regards the admissibility of the questions.
35.

I do not share the French Government's view on this point. It may be noted that the Directive defines precisely the moment when the chargeable event occurs and the moment when the tax becomes chargeable. As I have already explained, those moments are important under the scheme of the Directive since they determine the rate of tax, the return on which the supplier must record the transaction and hence the date of payment and the moment when the customer's right of deduction arises. By contrast the Directive does not define the precise moment when an invoice must be issued. Article 22(3) merely provides that an invoice must be issued by a taxable person in respect of all goods or services supplied by him to another taxable person and in respect of payments on account received by him from another taxable person. The absence of any indication of the moment when an invoice must be issued reflects the fact that that moment is generally of secondary importance under the scheme of the Directive. Taxable persons are required to issue invoices in respect of supplies made to taxable persons in order to ensure that documentary evidence is available in the records of suppliers and their customers supporting the entries which they make on their tax returns for a given period with respect to output tax chargeable on supplies and input tax deductible on purchases. Since under the second subparagraph of Article 10(2) tax becomes chargeable on payments on account notwithstanding the fact that no supply has yet been made, taxable persons are also required to issue an invoice in respect of such payments. The requirements regarding invoices are linked to the general obligation imposed on taxable persons by Article 22(2) to keep accounts in sufficient detail to permit application of the tax and inspection by the tax authority. It may be presumed that taxable persons will keep contemporaneous records, and in any event they should, at the very latest by the date on which they are obliged to submit their periodic tax returns, have in their possession copies of sales invoices and purchase invoices justifying their declared net liability to tax. I do not however see any reason to interpret the Directive as laying down a specific date by which an invoice must be issued or as requiring a Member State to lay down such a date. Nevertheless, as the United Kingdom suggests, Member States may do so under Article 22(8), which confers a general power on Member States to impose other obligations which they deem necessary for the correct levying and collection of the tax and for the prevention of fraud.
17.

The Regulation defines a category of agreements for which the conditions laid down by Regulation No 19/65/EEC of the Council of 2 March 1965 ( 5 ) may be considered satisfied, so that the otherwise unavoidable prohibition which it imposes is inoperative. It comprises agreements for a definite or an indefinite period, by which the supplying undertaking entrusts to another party the task of promoting the distribution and servicing of the products; thus, one party (the manufacturer or, in general, the supplier) entrusts to the other (the distributor or concessionaire) the task of promoting within a specific territory the distribution, sale and after-sales servicing of certain products of the motor vehicle industry. Under such agreements, the supplier gives an undertaking to the distributor that it will supply the contract goods for resale within the contract territory only to the dealer, or only to a limited number of undertakings within the distribution network.
11.

To my mind, Rompelman cannot be directly transposed to cover the instant case. It was clear in Rompelman that the economic activity had been taken up. In the knowledge of that fact, the Court assessed the situation at the time of the preparatory acts in retrospect. It is true that it expressed the view that, on grounds of the neutrality of taxation, all economic activities should be treated equally, including preparatory acts. The Court held that it was not justified to deny the characteristic of taxable person and hence not to grant entitlement to deduct input VAT for acts preparatory for economic activity until such time as the economic activity was ultimately taken up. It was not possible, for instance, to create an arbitrary distinction between investment expenditure incurred before and during the economic activity. If the right to deduct input tax were granted only at the time when the economic activity svas carried on, there would be a financial burden at odds with neutrality of taxation. ( 5 ) This means that a decision must be taken at the time of the preparatory act, that is to say, in advance, on whether it is possible to deduct input tax. The Court further held that it is for the person asserting the right to deduct VAT to show that he fulfils the necessary conditions, namely that he is a taxable person within the meaning of Article 4(1) of the Sixth Directive. The national revenue authorities may, in this connection, require objective evidence of that person's declared intention to take up an economic activity. ( 6 )
27.

The United Kingdom also relies in this connection on the Court's case-law on the prohibition of indirect or covert discrimination between men and women. The Court has indeed consistently held in this field that a provision infringes the prohibition of discrimination on grounds of sex only if it affects substantially more women than men (or substantially more men than women). ( 28 ) As Mr O'Flynn rightly objects, however, that case-law cannot be applied to the field concerned in this case. With respect to the equal treatment of men and women, many situations are conceivable where it is altogether doubtful whether a particular provision disadvantages women or men. Discrimination on grounds of sex can therefore only sensibly be spoken of in such circumstances if the provision in question affects substantially more women than men or substantially more men than women. That will often be provable only by statistical investigation. In the present case, on the other hand, the situation is quite different. That becomes clear if one tries the experiment of measuring the provision at issue here against those two prohibitions. If one examines whether the condition for making a funeral payment infringes the prohibition of discrimination on grounds of sex, the answer would indeed be anything but obvious. The provision in question is framed in such a way that it completely disregards the sex of the claimant. Discrimination on grounds of sex could thus at most be a possibility if the condition led in practice to substantially more men than women being given that benefit (of which there is of course no indication whatever at first sight). The position is completely different, on the other hand, with respect to the question of a breach of the prohibition of discrimination on grounds of nationality. In that respect the provision in question is precisely not formulated in a neutral way. By linking payment of the benefit to an occurrence taking place on the territory of the United Kingdom, it creates a territorial condition which disadvantages nationals of other Member States and thus leads to covert discrimination.
((Reference for a preliminary ruling from the Audiencia Provincial de Sevilla, First Chamber) (Insurance against civil liability in respect of the use of motor vehicles – Exclusion of damage caused by intoxicated drivers))