ddrg/super_eurlex huggingface dataset:
14

By judgment of 25 November 2010, the Wojewódzki Sąd Administracyjny w Łodzi (Regional Administrative Court, Łódź) upheld that action, finding that the services provided by RR did not constitute a supply of services connected with immovable property. In particular, that court took the view that the services in question could not be categorised as services consisting in ‘the granting of rights to use immovable property’ in so far as the subject matter of the contracts concluded between RR and its contractual partners was the holding and active management of goods stored in RR’s warehouses. Customers were given no right to use the immovable property in any manner whatsoever. The conclusive element of a supply of services such as that at issue in the main proceedings was, that court found, the handling of the goods in such a way as to enable the customer to market his goods in the most effective manner possible. In addition, that supply of services did not have a ‘sufficiently direct connection with immovable property’ within the meaning of the Court’s case-law (Case C-166/05 Heger [2006] ECR I-7749), and therefore could not come under Article 47 of the VAT Directive. Consequently, when the services at issue are supplied to customers established outside Polish territory, they should not be subject to tax in Poland.
4

Article 9 of the VAT Directive provides as follows: ‘1. “Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity. Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity. 2. In addition to the persons referred to in paragraph 1, any person who, on an occasional basis, supplies a new means of transport, which is dispatched or transported to the customer by the vendor or the customer, or on behalf of the vendor or the customer, to a destination outside the territory of a Member State but within the territory of the Community, shall be regarded as a taxable person.’
22

In those circumstances, the Administrativen sad-Plovdiv stayed proceedings pending a preliminary ruling from the Court on the following questions: ‘(1) Is a provision such as that in Article 70(1)(2) [of the ZDDS] according to which a taxable person does not have a right to deduct value added tax on transport services, work clothing and protective gear received and on business travel expenses incurred because those goods and services are provided free of charge to natural persons, namely employees working for the taxable person’s benefit, compatible with Articles 168(a) and 176 of [Directive 2006/112/ЕC], if the following circumstances are taken into account: (a) the taxable person has not concluded any contracts of employment with the employees but engages them on the basis of a contractual relationship relating to the ‘provision of staff’ with another taxable person who is the employer of the personnel; (b) the transport services received are used to transport employees from certain collection points in various places to their place of work and back and there is no organised public transport available for staff to get to and around the place of work; (c) the provision of work clothing and protective gear is required under the Labour Code and the Law on health and safety at work; (d) the deduction of VAT would not be in dispute in relation to the transport services, work clothing, protective gear and business travel expenses if those goods and services had been provided by the employer of the staff; in the present case, however, the respective acquisitions were made by a taxable person who is not the employer but, on the basis of a contract for the provision of staff, draws the benefit of the work and bears the costs associated therewith? (2) Does Article 176 of Directive 2006/112 empower a Member State, on acceding to the European Union, to introduce a limitation on the exercise of the right to deduct input tax such as that under Article 70(1)(2) of the ZDDS – namely that ‘the goods or services are intended to be supplied free of charge’ – if the legislation in force up to the date of accession did not expressly provide for such a limitation? (3) If the previous question should be answered in the affirmative, does it follow that goods and services received are intended to be ‘supplied free of charge’ if they are purchased for the purposes of economic activity but, because of their nature, in order for them to be used they have to be provided to the staff working in the taxable person’s undertaking?’
3

The first and second recitals in the preamble to Regulation No 2945/94 were worded as follows: ‘Whereas the Community rules provide for the granting of export refunds on the sole basis of objective criteria, in particular as to the quantity, nature and characteristics of the product exported, and its geographical destination; whereas in the light of experience, measures to combat irregularities and notably fraud prejudicial to the Community budget should be intensified; whereas, to that end, provision should be made for the recovery of amounts unduly paid and sanctions to encourage exporters to comply with Community rules; Whereas to ensure the correct functioning of the system of export refunds, sanctions should be applied regardless of the subjective element of fault; whereas it is nevertheless appropriate to waive the application of sanctions in certain cases notably in cases of an obvious error recognized by the competent authority and to provide for a higher sanction in cases of intent.’
3

In the Corporation Tax Code (Código do Imposto sobre o Rendimento das Pessoas Colectivas), in the version resulting from Decree-Law No 198/2001 of 3 July 2001, as amended by Law No 60‑A/2005 of 30 December 2005 (‘the CIRC’), Article 61, entitled ‘Thin capitalisation’, provides: ‘1. Where the overall debt owed by a taxable person to an entity not resident in Portuguese territory or in another Member State of the European Union, with which that person has special relations within the meaning of Article 58(4), adapted as necessary, is excessive, the interest relating to the part regarded as excessive shall not be deductible for the purposes of determining the taxable profit. 2. Special relations shall be deemed to exist where, in respect of the overall debt owed by the taxable person to a third party not resident in Portuguese territory or in another Member State of the European Union, an entity referred to in Article 58(4) has provided a warranty or a guarantee. 3. The overall debt shall be regarded as excessive where, at any time during the tax year, the sum of the debts owed to each of the entities referred to in paragraphs 1 and 2 exceeds double the amount of that entity’s holding in the taxable person’s equity capital. 4. For the purposes of calculating overall debt, account shall be taken of all forms of credit, whether in cash or in kind, whatever the type of remuneration agreed, extended by the entity with which there are special relations, and including credit deriving from commercial transactions, where more than six months have passed since the debt became due. 5. For the purposes of calculating equity capital, the subscribed and paid-up share capital shall be added to the other items categorised as such by the accounting rules in force, with the exception of those items that reflect potential or unrealised capital gains or capital losses, in particular those resulting from re-evaluations not permitted under tax legislation or from the application of the equity method of accounting. 6. With the exception of cases of debts owed to an entity resident in a country, territory or region with a significantly more favourable tax regime, which has been placed on the list approved by order of the Minister for State and Finance, paragraph 1 shall not apply if, the coefficient referred to in paragraph 3 being exceeded, the taxable person demonstrates – taking into account the type of activity, the sector in which that activity is carried on, the volume and other relevant criteria, and taking account of a risk profile for the transaction that is not predicated upon the involvement of entities with which it has special relations – that it could have obtained the same level of credit, on similar terms, from an independent entity. 7. The evidence referred to in paragraph 6 must include the tax file referred to in Article 121.’
25

In order to ascertain whether a national body, such as BKK, which is governed by public law and which is tasked with the management of a statutory health insurance fund, must be considered a ‘business’ within the meaning of the Unfair Commercial Practices Directive and whether it is, in that capacity, subject to the requirements laid down by that directive in the event that, as in the present case, it provides misleading information to its members, it should be noted from the outset that, according to the Court’s settled case-law, the need for uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see, inter alia, Case C-287/98 Linster [2000] ECR I-6917, paragraph 43; Case C-40/01 Ansul [2003] ECR I-2439, paragraph 26; and Case C-271/10 VEWA [2011] ECR I-5815, paragraph 25).
47

First, the interpretation given by the Commission to paragraphs 48 and 50 of the judgment in Commission v Germany is based on a partial reading of that judgment which does not take account of the inherent links between the various passages of the judgment, nor of the grounds of the judgment as a whole and their coherence. Thus, in observing, in paragraph 50 of that judgment, that Paragraph 4(3) of the VW Law ‘creates an instrument enabling the Federal and State authorities to procure for themselves a blocking minority allowing them to oppose important resolutions, on the basis of a lower level of investment than would be required under general company law’, the Court – contrary to what the Commission appears to suggest – did not in any way rule on the question as to whether or not that provision, on its own, infringes Article 63(1) TFEU. Moreover, that paragraph forms part of the line of reasoning framed by the preceding paragraphs of that judgment, in which the Court specified, in paragraphs 30 and 43, that it was appropriate to examine Paragraph 2(1) of the VW Law ‘alongside’ Paragraph 4(3) of that law by reason of, inter alia, their ‘cumulative effects’. As for paragraph 48 of that judgment, to which the Commission also refers, suffice it to note that that paragraph contains only a finding purely of fact, namely that ‘when the VW Law was adopted in 1960, the Federal State and the Land of Lower Saxony were the two main shareholders in Volkswagen, a recently privatised company, and each held 20% of its capital’.
24

In those circumstances, the Raad van State van België decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Should Articles 49 or 56 TFEU be interpreted in such a way that an undertaking established in Belgium may rely on the fundamental rules of European Union law before the Belgian courts, in particular, on the obligation of transparency which is derived from the aforementioned Articles, in respect of an agreement which does not fall within the scope of any of the directives concerning public tenders, under which a Belgian authority transfers rights to another Belgian undertaking without having organised an invitation to tender? 2. Can the efforts to prevent the infringement of an existing, in itself undisputed and very specific contractual framework between a legal person governed by public law and a private law undertaking, not controlled by itself, or the conclusion of a transaction or a settlement aimed at the resolution of an existing interpretation dispute regarding the aforementioned contractual framework, where that settlement is based on the rights of the parties in accordance with a provisional decision of a judge hearing an application for interim relief and where, without such a settlement, the relevant activity of [that legal person] can incur serious damage and depreciation, with the consumers, in the meanwhile, remaining deprived of services, be regarded as an overriding reason in the public interest, or at least an objective ground of justification, justifying the fact that legal persons governed by public law, by way of exception and contrary to the principle of equal treatment and the prohibition of discrimination on the grounds of nationality, which are laid down in Articles 49 and 56 TFEU and the obligation of transparency to which it gives rise, do not organise an invitation to bid and award the tender directly? 3. If the second question can be answered in the affirmative, should the aforementioned transaction or settlement, so as not to limit the aforementioned fundamental freedoms guaranteed by European Union law more than is necessary in order to achieve the aim pursued, then be limited to what is strictly required to put an end to the dispute which has arisen, or may the parties devise a more far-reaching settlement with a view to future challenges which have a reasonable and logical connection with the dispute and which at the same time safeguards the interests of the consumers and also entails maximising the value of the transferred activity concerned?’
7

Article 30 of Directive 2004/18, entitled ‘Cases justifying use of the negotiated procedure with prior publication of a contract notice’, provides at paragraphs 1 to 3 thereof: ‘1. Contracting authorities may award their public contracts by negotiated procedure, after publication of a contract notice, in the following cases: (a) in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with Articles 4, 24, 25, 27 and Chapter VII, in response to an open or restricted procedure or a competitive dialogue insofar as the original terms of the contract are not substantially altered. ... (b) in exceptional cases, when the nature of the works, supplies, or services or the risks attaching thereto do not permit prior overall pricing; (c) in the case of services, inter alia services within category 6 of Annex II A, and intellectual services such as services involving the design of works, insofar as the nature of the services to be provided is such that contract specifications cannot be established with sufficient precision to permit the award of the contract by selection of the best tender according to the rules governing open or restricted procedures; ... 2. In the cases referred to in paragraph 1, contracting authorities shall negotiate with tenderers the tenders submitted by them in order to adapt them to the requirements which they have set in the contract notice, the specifications and additional documents, if any, and to seek out the best tender in accordance with Article 53(1). 3. During the negotiation, the contracting authorities shall ensure equal treatment for all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.’
9

Under Article 7(2) and (3) of the Framework Decision: ‘2. The competent authority in the executing State may … refuse to recognise and execute the decision if it is established that: … (g) according to the certificate provided for in Article 4, the person concerned, in case of a written procedure, was not, in accordance with the law of the issuing State, informed personally or via a representative, competent according to national law, of his/her right to contest the case and of the time-limits for such a legal remedy; ... (i) according to the certificate provided for in Article 4, the person did not appear in person at the trial resulting in the decision, unless the certificate states that the person, in accordance with further procedural requirements defined in the national law of the issuing State: (i) in due time: — either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and — was informed that a decision may be handed down if he or she does not appear for the trial; or (ii) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial; or (iii) after being served with the decision and being expressly informed of the right to a retrial, or an appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed: — expressly stated that he or she does not contest the decision, or — did not request a retrial or appeal within the applicable time frame; … (3) In the cases referred to in paragraphs 1 and 2(c), (g), (i) and (j), before deciding not to recognise and to execute a decision, either totally or in part, the competent authority in the executing State shall consult the competent authority in the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary information without delay.’
3

Article 168 TFEU provides: ‘1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action, which shall complement national policies, shall be directed towards improving public health, preventing illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health. … 4. By way of derogation from Article 2(5) and Article 6(a) and in accordance with Article 4(2)(k) the European Parliament and the Council … shall contribute to the achievement of the objectives referred to in this Article through adopting in order to meet common safety concerns: (a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures; … 7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.’
9

Regulation No 796/2004, although repealed with effect from 1 January 2010, by Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Regulation No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for [by] that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (OJ 2009 L 316, p. 65), continues to apply, however, to the facts of the case before the referring court. Recitals 11, 36 and 40 in the preamble to Regulation No 796/2004 stated: ‘(11) In order to contribute to the protection of the financial interest of the Community it should be foreseen that payments under [Regulation No 73/2009] may only be made once the checks with regard to the eligibility criteria have been finalised. … (36) On-the-spot checks of areas, as a general rule, consist of two parts, the first of which relates to verifications and measurements of declared agricultural parcels on the basis of graphic material, aerial photography and so forth. The second part consists of a physical inspection of the parcels to verify the actual size of the agricultural parcels declared and, depending on the aid scheme in question, the declared crop and its quality. Where necessary, measurements should be carried out. The physical inspection in the field may be carried out on the basis of a sample. … (40) The conditions for the use of remote sensing for on-the-spot checks should be laid down and provision should be made for physical checks to be carried out in cases where photo-interpretation does not lead to clear results.’
15

It is in the light of those considerations that the Supreme Administrative Court of Lithuania decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Must point 14 of Annex I to Directive 2005/29/EC … be interpreted as meaning that establishing, operating or promoting a pyramid promotional scheme is to be regarded as a commercial practice that is in all cases misleading only where the consumer has to pay in order to receive compensation primarily for the introduction of other consumers into the scheme rather than for the sale or consumption of products? 2. If it is necessary for the consumer to give consideration for the right to receive compensation, is the amount of the consideration given by the consumer for the opportunity to receive compensation primarily for the introduction of other consumers into the scheme rather than for the sale or consumption of products relevant for the purpose of recognition of the pyramid promotional scheme as a misleading commercial practice under point 14 of Annex I to [Directive 2005/29/EC]? May payments by consumers which are of a purely nominal amount, and which are made in order for the consumers to be identified, be regarded as payments for the opportunity to receive compensation for the purpose of point 14 of Annex I to the directive? 3. Must point 14 of Annex I to [Directive 2005/29] be interpreted as meaning that, in order for a pyramid promotional scheme to be recognised as a misleading commercial practice under that point, it matters only that the compensation is paid to the consumer already in the scheme primarily because he has introduced other consumers into the scheme rather than for the sale or consumption of products, or is the extent to which the compensation paid to participants in the scheme for the introduction of new consumers is financed by contributions of the new members nevertheless also of importance? In the case under consideration, must compensation paid to the participants in the pyramid promotional scheme who joined it earlier be financed entirely or to a large extent by the contributions of the members who are fresh entrants into the scheme?’