ddrg/super_eurlex huggingface dataset:
5

Article 2(10) and (11) of that regulation provided: ‘10. A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at as nearly as possible the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows: … (b) Import charges and indirect taxes An adjustment shall be made to normal value for an amount corresponding to any import charges or indirect taxes borne by the like product and by materials physically incorporated therein, when intended for consumption in the exporting country and not collected or refunded in respect of the product exported to the Community. … (k) Other factors An adjustment may also be made for differences in other factors not provided for under subparagraphs (a) to (j) if it is demonstrated that they affect price comparability as required under this paragraph, in particular that customers consistently pay different prices on the domestic market because of the difference in such factors. … 11. Subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Community, or by a comparison of individual normal values and individual export prices to the Community on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the Community, if there is a pattern of export prices which differs significantly among different purchasers, regions or time periods, and if the methods specified in the first sentence of this paragraph would not reflect the full degree of dumping being practised. This paragraph shall not preclude the use of sampling in accordance with Article 17.’
6

Article 8 of that directive, entitled ‘Right of information’, provides: ‘1. Member States shall ensure that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who: (a) was found in possession of the infringing goods on a commercial scale; (b) was found to be using the infringing services on a commercial scale; (c) was found to be providing on a commercial scale services used in infringing activities; or (d) was indicated by the person referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services. 2. The information referred to in paragraph 1 shall, as appropriate, comprise: (a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers; (b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question. 3. Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which: (a) grant the rightholder rights to receive fuller information; (b) govern the use in civil or criminal proceedings of the information communicated pursuant to this Article; (c) govern responsibility for misuse of the right of information; or (d) afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit to his own participation or that of his close relatives in an infringement of an intellectual property right; or (e) govern the protection of confidentiality of information sources or the processing of personal data.’
24

As regards the wording of the provision in question, it should be noted that Article 9 of Regulation No 261/2004, entitled ‘Right to care’, provides, in paragraph 1(b) thereof, that the passengers concerned, including those referred to in Article 5 of that regulation, relating to the cancellation of a flight, are to be offered hotel accommodation free of charge where, inter alia, a stay of one or more nights becomes necessary. Thus, the wording ‘shall be offered free of charge … hotel accommodation’ reflects the desire of the EU legislature to prevent passengers who are obliged, following the cancellation of their flight, to spend the night in a hotel while waiting for the departure of a new flight from having to bear the burden of finding a hotel room and of paying the costs thereof themselves, as those passengers must be cared for by the air carrier, which must make the necessary arrangements for that purpose. However, it does not expressly follow from the wording of that provision that the EU legislature wished to impose on air carriers, beyond that provision of care for passengers, the obligation also to take care of the accommodation arrangements as such, either directly or by relying on hotels appointed by them.
25

As regards the first part of that plea, by which the appellant claimed that the Parliament had treated her differently from Members who were in comparable situations without adequate justification, the General Court stated as a preliminary point, in paragraph 76 of the judgment under appeal, that the document of the Parliament’s Committee on Legal Affairs and the Internal Market of 6 June 2003, entitled ‘Notice to Members No 11/2003’, concerning: ‘Waiver of immunity in accordance with Article [9] of the Protocol on privileges and immunities. Principles established on the basis of cases relating to the expression of opinions’ (‘Notice No 11/2003’), relied on by appellant in support of that first part, is not an act of the Parliament within the meaning of Article 288 TFEU and does not have binding effect. Next, the General Court noted, in paragraphs 80 and 81 of the judgment under appeal, first that, since the appellant had failed to specify either the acts or remarks which were the subject of the complaints against the Members identified by her as having benefited from the application of that notice, or the circumstances in which the events in question had taken place, she had not established that the situation of those Members was comparable to her own. Second, since, in the present case, there was no direct connection between the tweet at issue and the appellant’s parliamentary duties, she had not demonstrated that the Parliament had derogated from the principle laid down in that notice according to which, if the acts of which the Member stands accused form part of his or her political activity or are directly connected to such activity, immunity will not be waived.
20

Taking the view that the case-law of the Court did not allow it to determine with certainty whether, in a situation such as that at issue in the main proceedings, the input VAT paid could be deducted in full, the Hof van Cassatie (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is Article 17 of the [Sixth Directive] to be interpreted as meaning that the fact that expenditure also benefits a third party – as is the case where, in connection with the sale of apartments, a property developer pays advertising costs, administrative costs and estate agents’ commission, which also benefit the landowners – does not preclude the value added tax (VAT) charged on those costs from being fully deductible, provided that it is established that there is a direct and immediate link between the expenditure and the economic activity of the taxable person and that the advantage to the third party is ancillary to the taxable person’s business purposes? (2) Does that principle apply also where the costs in question are not general overheads but costs attributable to specific output transactions which may or may not be subject to VAT, such as in this case the sale, on the one hand, of apartments and, on the other, of land? (3) Does the fact that the taxable person is able/entitled to pass on part of the expenditure to the third party whom the expenditure benefits, but does not do so, have any impact on the question of the deductibility of the VAT on those costs?’
11

The relevant provisions of the Abfallwirtschaftsgesetz of 2002 (Austrian Federal Law of 2002 on Waste Management; ‘the AWG 2002’) which transpose Directive 2008/98 are worded as follows: ‘Definitions Paragraph 2(1) For the purposes of this Federal Law, waste means any movable property, 1. which the holder intends to discard or has discarded, or 2. whose collection, storage, transport and treatment as waste is necessary in order not to harm public interests (Paragraph 1(3)). … (3a) A substance or object, resulting from a production process, the primary aim of which is not the production of that item, may be regarded as not being waste but as being a by-product only if the following conditions are met: 1. further use of the substance or object is certain; 2. the substance or object can be used directly without any further processing other than normal industrial practice; 3. the substance or object is produced as an integral part of a production process; and 4. further use is permitted, in particular, the substance or object can be used safely for its intended useful purpose, no protected interests (cf. Paragraph 1(3)) are harmed by the use and all relevant legal provisions are complied with. … Exclusions from the scope Paragraph 3(1) The following is not waste within the meaning of this Federal Law 1. waste water including other water which is listed in Paragraph 1(1), points 1 to 4 and 6 and Paragraph 1(2) of the Verordnung über die allgemeine Begrenzung von Abwasseremissionen in Fließgewässer und öffentliche Kanalisationen (Regulation on the general limitation of emissions of waste water into watercourses and public sewers, BGB1. 186/1996). … End-of-waste status Paragraph 5(1) Unless otherwise specified in a regulation referred to in Paragraph 5(2) or in a regulation referred to in Article 6(2) of Directive 2008/98/EC on waste, existing substances shall be deemed to be waste until they or substances directly obtained from them are used as a substitute for raw materials or for products obtained from primary raw materials. In the case of preparing for re-use within the meaning of point 6 of Paragraph 2(5), the end-of-waste status occurs at the end of that recovery operation. … Declaratory decisions Paragraph 6 … (6) On request by a project developer or the Umweltanwalt (Environmental Ombudsman) or, of its own motion, the Landeshauptmann (Governor) shall determine within three months whether 1. a plant shall be subject to authorisation pursuant to Paragraph 37(1) or (3) or in accordance with Paragraph 52, or if there is an exception under Paragraph 37(2), … 3. modification to a waste treatment facility shall be subject to authorisation pursuant to Paragraph 37(1) or (3) or whether it is subject to compulsory notification under Paragraph 37(4). …’
17

The second interpretation set out by the referring court is that the concept of ‘taxation elements’ within the meaning of the Customs Code does not refer to the normal or preferential rates. The referring court points out that a terminological distinction is made, at least in the Netherlands, when determining the amount of duties, levies or other charges legally payable between, on the one hand, applicable rates in the form of percentage rates or specific duties and any (preferential) tariff measures and, on the other hand, the taxation elements to which those rates and tariff measures are to be applied, such as the value, the weight or the quantity of the goods. It states that that interpretation safeguards the principle that customs duties are to be calculated in accordance with the legal and factual situation at the time when the customs debt was incurred. In the present case, that interpretation would mean that Exter would not have qualified for the application of the preferential tariff measure for 2014 given that, at the time when the customs debt had to be calculated, that is to say, the date of acceptance of the declaration of release for free circulation, that measure was suspended and thus the normal rate applied once more.
52

In the light of the foregoing considerations, the answer to the questions referred is that Article 2(h) and Article 7(a) of Directive 95/46 and Article 4(11) and Article 6(1)(a) of Regulation 2016/679 must be interpreted as meaning that it is for the data controller to demonstrate that the data subject has, by active behaviour, given his or her consent to the processing of his or her personal data and that he or she has obtained, beforehand, information relating to all the circumstances surrounding that processing, in an intelligible and easily accessible form, using clear and plain language, allowing that person easily to understand the consequences of that consent, so that it is given with full knowledge of the facts. A contract for the provision of telecommunications services which contains a clause stating that the data subject has been informed of, and has consented to, the collection and storage of a copy of his or her identity document for identification purposes is not such as to demonstrate that that person has validly given his or her consent, as provided for in those provisions, to that collection and storage, where – the box referring to that clause has been ticked by the data controller before the contract was signed, or where – the terms of that contract are capable of misleading the data subject as to the possibility of concluding the contract in question even if he or she refuses to consent to the processing of his or her data, or where – the freedom to choose to object to that collection and storage is unduly affected by that controller in requiring that the data subject, in order to refuse consent, must complete an additional form setting out that refusal.
15

According to Article 20 of that directive: ‘1. Where the Member State of refund considers that it does not have all the relevant information on which to make a decision in respect of the whole or part of the refund application, it may request, by electronic means, additional information, in particular from the applicant or from the competent authorities of the Member State of establishment, within the four-month period referred to in Article 19(2). Where the additional information is requested from someone other than the applicant or a competent authority of a Member State, the request shall be made by electronic means only if such means are available to the recipient of the request. If necessary, the Member State of refund may request further additional information. The information requested in accordance with this paragraph may include the submission of the original or a copy of the relevant invoice or import document where the Member State of refund has reasonable doubts regarding the validity or accuracy of a particular claim. In that case, the thresholds mentioned in Article 10 shall not apply. 2. The Member State of refund shall be provided with the information requested under paragraph 1 within one month of the date on which the request reaches the person to whom it is addressed.’
7

Recitals 9, 33 and 41 of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ 2014 L 127, p. 39, and corrigendum OJ 2014 L 138, p. 114) state as follows: ‘(9) This Directive aims to amend and expand the provisions of [Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ 2001 L 182, p. 1)] and [Framework Decision] 2005/212/JHA. Those Framework Decisions should be partially replaced for the Member States bound by this Directive. … (33) This Directive substantially affects the rights of persons, not only of suspected or accused persons, but also of third parties who are not being prosecuted. It is therefore necessary to provide for specific safeguards and judicial remedies in order to guarantee the preservation of their fundamental rights in the implementation of this Directive. This includes the right to be heard for third parties who claim that they are the owner of the property concerned, or who claim that they have other property rights (‘real rights’, ‘ius in re’), such as the right of usufruct. The freezing order should be communicated to the affected person as soon as possible after its execution. Nevertheless, the competent authorities may postpone communicating such orders to the affected person due to the needs of the investigation. … (41) Since the objective of this Directive, namely facilitating confiscation of property in criminal matters, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.’
14

In the second place, the General Court examined the first two parts of the first plea, alleging infringement of the principle of necessity. First, in paragraphs 69 to 91 of the judgment under appeal, the General Court rejected the first part of the first plea, seeking to find fault with the decision at issue in so far as it went beyond the scope of the investigation carried out as defined in the statement of objections, by requesting information relating to the chips of which the chipsets covered by the investigation are composed and concerning periods adjacent to the period of the infringement defined in that statement of objections. To that end, the General Court held, first of all, that, in order in particular to take account of the arguments put forward by the undertakings concerned, the Commission was entitled to continue with its investigation after the adoption of the said statement of objections, including by issuing requests for additional information, without rendering those requests unlawful or, in itself, calling into question the necessity of the information thus requested. The General Court held, second of all, that the Commission’s powers cannot be limited as to the questions it seeks to raise, provided however that they enable it to obtain information necessary for the investigation carried out and the Commission gives the undertakings concerned the opportunity to be heard. The General Court added that, in any event, it was without expanding the scope of the investigation that the Commission requested the information required, as that information was not only relevant in that it provided insight into the context surrounding possibly unlawful conduct, but also necessary for the application of an appropriate ‘price-cost’ test.
11

Under Article 112b(1) and (2) of that law: ‘1. Where it is found that the taxable person: (1) indicated in the submitted tax return: (a) an amount of tax liability lower than the amount due; (b) an amount of tax difference to be refunded or an amount of input tax to be refunded greater than the amount due; (c) an amount of tax credit to be deducted from the amount of tax due for subsequent tax periods greater than the amount due; (d) an amount of tax credit to be refunded, an amount of input tax to be refunded or an amount of tax credit to be deducted from the amount of tax due for subsequent accounting periods instead of showing the amount of tax liability to be paid to the tax office; (2) failed to submit a tax return and failed to pay the amount of tax due: – the head of the tax office or the head of the customs and tax office shall determine the corresponding correct amounts and shall impose an additional tax liability corresponding to 30% of the understated tax liability or 30% of the overstated tax credit to be refunded, the amount of the input tax to be refunded or the amount of the tax credit to be deducted from the amount of tax due for subsequent tax periods. 2. If, following the completion of a tax audit or customs and fiscal audit or during the customs and fiscal audit, in the cases referred to in: (1) paragraph 1, point (1), the taxable person submitted a corrected tax return taking into account the irregularities found and paid the amount of the tax liability or returned the amount of the undue refund; (2) paragraph 1, point (2), the taxable person submitted a tax return and paid the amount of the tax liability – the amount of the additional tax liability shall be 20% of the understated tax liability or 20% of the overstated tax credit to be refunded, the amount of the input tax to be refunded or the amount of the tax credit to be deducted from the amount of tax due for subsequent tax periods.’
120

However, it must be borne in mind that, where it has been established, by means of a final judicial decision taken in a Contracting State or in a Member State, that a red notice issued by Interpol does indeed relate to the same acts as those in respect of which the trial of the person to whom that notice relates has been finally disposed of and that, consequently, the ne bis in idem principle applies, that person can no longer, as is apparent from the reply given to the first, second and third questions and having regard to Article 54 of the CISA read in the light of Article 50 of the Charter, be the subject of criminal proceedings in respect of those same acts and, consequently, can no longer be arrested in the Member States on the basis of those acts. It must therefore be held that, in those circumstances, the recording, in the Member States’ lists of wanted persons, of the personal data contained in an Interpol red notice is no longer necessary, with the result that the data subject must be able to request, under Article 16(2) of Directive 2016/680, that the controller erase personal data relating to him or her without undue delay. However, if those data remain recorded, they must be accompanied by a note that the person in question may no longer be prosecuted in a Member State or in a Contracting State for the same acts by reason of the ne bis in idem principle.