ddrg/super_eurlex huggingface dataset:
Case C-453/10

Jana Pereničová and Vladislav Perenič

v

SOS financ spol. s r. o.

(Reference for a preliminary ruling from the Okresný súd Prešov)

‛Consumer protection — Consumer credit agreement — Incorrect statement of annual percentage rate of charge — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole’

Summary of the Judgment

Article 6(1) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that, when assessing whether a contract concluded with a consumer by a trader which contains one or more unfair terms can continue to exist without those terms, the court hearing the case cannot base its decision solely on a possible advantage for one of the parties, in this case the consumer, of the annulment of the contract in question as a whole. That directive does not, however, preclude a Member State from providing, in compliance with European Union law, that a contract concluded with a consumer by a trader which contains one or more unfair terms is to be void as a whole where that will ensure better protection of the consumer. (see para. 36, operative part 1)

A commercial practice which consists in indicating in a credit agreement an annual percentage rate of charge lower than the real rate must be regarded as ‘misleading’ within the meaning of Article 6(1) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450, 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 in so far as it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, which is for the national court to ascertain. (see para. 47, operative part 2)
Those partners may be considered to be taxable persons for the purposes of value added tax and are therefore, in principle, entitled to exercise the right to deduct input tax. In so far as, under national legislation, the partners are unable to rely on the taxable transactions effected by the partnership in order to relieve the cost of the value added tax on investment transactions effected for the purposes of and with the view to the activity of that partnership, the latter must, in order to ensure the neutrality of taxation, be entitled to take account of those investment transactions when deducting value added tax.

Articles 9, 168 and 169 of Directive 2006/112 on the common system of value added tax must be interpreted as precluding national legislation which permits neither partners nor their partnership to exercise the right to deduct input value added tax on investment costs incurred by those partners, before the creation and registration of the partnership, for the purposes of and with the view to its economic activity.

Articles 168 and 178(a) of Directive 2006/112 on the common system of value added tax must be interpreted as precluding national legislation under which the input value added tax paid cannot be deducted by a partnership when the invoice, drawn up before the registration and identification of the partnership for the purposes of value added tax, was issued in the name of the partners of that partnership, whereas the material conditions laid down in Article 168(a) appear to be satisfied so that, inter alia, that partnership can exercise the right to deduct the value added tax and the data necessary to ensure a reliable and efficient collection of the tax is established.

Since the reason that it is impossible for such a partnership to exercise its right to deduct the input tax paid is that, at the date of issue of the invoice, that partnership was not yet registered or identified for the purposes of value added tax and the invoice had, therefore, been drawn up in the name of the partners, even though those who paid the input tax and those who make up that partnership are one and the same legal entity, that impossibility must be considered to be caused by a purely formal obligation. Compliance with such an obligation is not to be required when that requirement would have the effect of rendering utterly nugatory the right to deduct, and therefore of calling into question the neutrality of value added tax.

(see paras 44-46, 49, 50, operative part 2)
Keywords

Summary



Keywords

1. Social security for migrant workers — Family allowances — Legislation applicable — Worker working temporarily in a Member State other than that in which his work is normally carried out without having a residence for himself and members of his family there — Receipt of family benefits in the competent Member State of residence

(Council Regulation No 1408/71, as amended by Regulation No 647/2005, Arts 14(1)(a) and 14a(1)(a))

2. Social security for migrant workers — Family allowances — Worker working temporarily in a Member State other than that in which his work is normally carried out

(Arts 45 TFEU and 48 TFEU)

Summary

1. Articles 14(1)(a) and 14a(1)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 647/2005, must be interpreted as not precluding a Member State, which is not designated under those provisions as being the competent State, from granting child benefits in accordance with its national law to a migrant worker who is working temporarily within its territory who is subject to unlimited tax liability but is concerned by the social security system of the competent State, including in the case where it is established, first, that the worker concerned has not suffered any legal disadvantage by reason of the fact that he has exercised his freedom of movement, since he has retained his entitlement to family benefits of the same kind in the competent Member State, and, second, that neither that worker nor the child for whom the benefit is claimed habitually resides within the territory of the Member State in which the temporary work was carried out.

(see para. 68, operative part 1)

2. The rules of the TFEU on the free movement of workers must be interpreted as precluding the application, in a situation in which a worker is temporarily posted to a Member State other than the competent State, of a rule of national law, such as that resulting from a rule of national law precluding the accumulation of child benefits, in so far as it involves, not a reduction in the amount of the benefit corresponding to the amount of a comparable benefit received in another State, but exclusion from that benefit.

(see para. 85, operative part 2)
The second paragraph of Article 13 of the Protocol on the Privileges and Immunities of the European Communities must be interpreted as precluding national legislation such as that at issue in the main proceedings which takes account of the income, including the pensions and allowances on termination of service, paid by the European Union to its officials and other staff, or to its former officials and former staff, in calculating the cap on a tax such as the wealth tax.

The collection of a national tax, such as the wealth tax, including in the calculation of the final amount income paid by the Union which is exempt from national income tax is equivalent to the indirect taxation of such income, in breach of the second paragraph of Article 13 of the Protocol. Similarly, the fact that the wealth tax capping mechanism is intended to limit its confiscatory effect and reflect the real capacity to pay of the taxpayer is not such as to allow the indirect taxation, in breach of the second paragraph of Article 13 of the Protocol, of income paid by the Union to its officials or its other staff.

In the interest of legal certainty, given that the income paid by the Union and subject to the Union’s own tax cannot be taxed either directly or indirectly by a Member State and given that it is withdrawn from the tax sovereignty of the Member States, a person in receipt of such income is also exempt from any obligation to declare the amount of such income to the authorities of a Member State. That said, it is legitimate for a Member State to make provision for a mechanism for capping a tax such as the wealth tax, always provided that such a mechanism respects the law of the Union and Article 13 of the Protocol in particular.

(see paras 28-32, operative part)
By virtue of the exclusion laid down by Article 1(2)(b) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies, the dismissal of staff of a military base does not, fall within the scope of that directive, irrespective of whether or not it is a military base belonging to a non-member State. In those circumstances, it is not necessary specifically to take into account the fact that it was a military base belonging to a non-member State, that question having implications in international law.

Given that armed forces fall within the public administration or equivalent body, it is clear from the wording of Article 1(2)(b) of Directive 98/59 that the civilian staff of a military base is covered by the exclusion laid down by that provision.

Directive 98/59 is aimed at improving the protection of workers and the functioning of the internal market. Whilst the size and functioning of the armed forces does have an influence on the employment situation in a given Member State, considerations concerning the internal market or competition between undertakings do not, however, apply to them. Activities which, like national defence, fall within the exercise of public powers are in principle excluded from classification as economic activity. Article 1(2) of that directive does not in any way lay down a distinction between the public administrations of Member States and those of non-member States.

(see paras 34, 39, 41-43)
A Member State fails to fulfil its obligations under Article 49 TFEU if it adopts and maintains in force provisions relating to corporation tax which are applicable in the case of transfer, by a company incorporated under national law, of its registered office and its effective management to another Member State or in the case of transfer, by a company not resident in that first Member State, of some or all of the assets attached to a permanent establishment situated in its territory to another Member State, and which prescribe the immediate taxation of unrealised capital gains relating to the assets concerned but not of unrealised capital gains resulting from purely national operations. Such a company is penalised financially compared with a company which is subject to the law of that Member State and limits similar operations to the territory of the latter, and that difference in treatment cannot be justified by an objective difference of situation.

(see paras 27-29, 35, operative part)
The principle of fiscal neutrality was intended to reflect, in matters relating to value added tax, the general principle of equal treatment, which requires that comparable situations must not be treated differently unless such treatment is objectively justified. However, although infringement of the principle of fiscal neutrality may be envisaged only as between competing traders, infringement of the general principle of equal treatment may be established, in matters relating to tax, by other kinds of discrimination which affect traders who are not necessarily in competition with each other but who are nevertheless in a similar situation in other respects. It follows that the principle of equal treatment, in matters relating to tax, does not coincide with the principle of fiscal neutrality.

A Member State does not fail to fulfil its obligations under Article 11 of Directive 2006/112 on the common system of value added tax by in practice restricting the possibility of forming a group of persons regarded as a single taxable person as regards value added tax to providers of financial and insurance services.

As regards the objectives of Article 11 of Directive 2006/112, the European Union legislature intended, either in the interests of simplifying administration or with a view to combating abuses such as, for example, the splitting-up of one undertaking among several taxable persons so that each might benefit from a special scheme, to ensure that Member States would not be obliged to treat as taxable persons those whose ‘independence’ is purely a legal technicality.

In addition, the second paragraph of Article 11 of Directive 2006/112 also permits Member States to adopt any measures needed to prevent tax evasion or avoidance through the use of the first paragraph of the article. Thus, with the reservation that such measures may, however, be taken only in compliance with European Union law, it is permissible for Member States to restrict the application of the scheme provided for under Article 11 to combat tax evasion or avoidance.

The Commission has failed to show convincingly that, in the light of the need to combat tax evasion and avoidance, that measure is not well founded.

(see paras 37-40)
Judgment of the Court (Seventh Chamber) of 29 July 2010 – Commission v Belgium

(Case C-6/10)

Failure of a Member State to fulfil obligations – Directive 2006/46/EC – Company law Annual and consolidated accounts of companies – Failure to transpose or to communicate national transposition measures

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU; European Parliament and Council Directive 2006/46) (see paras 9-12)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt or communicate, within the prescribed period, all the measures necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings (OJ 2006 L 224, p. 1).

Operative part

The Court:

1. Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
Judgment of the Court (Fifth Chamber) of 7 October 2010 – Commission v Slovenia

(Case C‑49/10)

Failure of a Member State to fulfil obligations – Environment – Directive 2008/1/EC – Integrated pollution prevention and control – Requirements for the granting of permits for existing installations – Failure to transpose within the prescribed period

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para. 23)

2. Member States – Obligations – Implementation of directives – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 258 TFEU) (see para. 24)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8) – Requirements for the granting of permits for existing installations – Obligation to ensure that such installations operate in accordance with the requirements of the directive.

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all the measures necessary as far as concerns permits for industrial installations, in accordance with Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, the Republic of Slovenia has failed to fulfil its obligations under that directive;
Judgment of the Court (Eighth Chamber) of 14 April 2011 – Commission v Luxembourg

(Case C-390/10)

Failure of a Member State to fulfil obligations – Directive 2007/36/EC – Exercise of certain rights of shareholders in listed companies – Failure to transpose within the period prescribed

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFUE; European Parliament and Council Directive 2007/36) (see paras 11-14)

Re:

Failure of a Member State to fulfil obligations – Failure to take or communicate, within the prescribed period, the measures necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (OJ L 184, p. 17).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
1.

Declares that, by failing to transpose correctly and completely Article 9(3)(b), (c) and (e) of Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
Judgment of the Court (Seventh Chamber) of 28 July 2011 – Commission v Austria

(Case C-548/10)

Failure of a Member State to fulfil obligations – Directive 2007/2/EC – Environmental policy – Infrastructure for spatial information in the European Community (INSPIRE) – Exchange and updating of data in electronic format – Incomplete transposition

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para. 10)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt or communicate, within the prescribed period, all the measures necessary to comply with Directive 2007/2/EC of the European Parliament and the Council of 14 March 2007 establishing an infrastructure for spatial information in the European Community (INSPIRE) (OJ 2007 L 108, p. 1).

Operative part

The Court:

1. Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 on the assessment of the effects of certain plans and programmes on the environment, the Republic of Austria has failed to fulfil its obligations under that directive;
3

Article 14bis of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 July 1979 (‘the Berne Convention’), provides: ‘(1) Without prejudice to the copyright in any work which may have been adapted or reproduced, a cinematographic work shall be protected as an original work. The owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work, including the rights referred to in the preceding Article. (a) Ownership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed. (b) However, in the countries of the Union which, by legislation include among the owners of copyright in a cinematographic work authors who have brought contributions to the making of the work, such authors, if they have undertaken to bring such contributions, may not, in the absence of any contrary or special stipulation, object to the reproduction, distribution, public performance, communication to the public by wire, broadcasting or any other communication to the public, or to the subtitling or dubbing of texts, of the work. (c) The question whether or not the form of the undertaking referred to above should, for the application of the preceding subparagraph (b), be in a written agreement or a written act of the same effect shall be a matter for the legislation of the country where the maker of the cinematographic work has his headquarters or habitual residence. However, it shall be a matter for the legislation of the country of the Union where protection is claimed to provide that the said undertaking shall be in a written agreement or a written act of the same effect. The countries whose legislation so provides shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union. (d) By “contrary or special stipulation” is meant any restrictive condition which is relevant to the aforesaid undertaking. (3) Unless the national legislation provides to the contrary, the provisions of paragraph (2)(b) above shall not be applicable to authors of scenarios, dialogues and musical works created for the making of the cinematographic work, nor to the principal director thereof. However, those countries of the Union whose legislation does not contain rules providing for the application of the said paragraph (2)(b) to such director shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union.’
Judgment of the Court (Eighth Chamber) of 19 April 2012 —

Commission v Netherlands



(Case C‑141/10)

Failure of a Member State to fulfil obligations — Articles 39 EC to 42 EC — Freedom of movement of persons — Regulation (EEC) No 1408/71 — Social security of migrant workers — Refusal to pay certain benefits — Workers employed on drilling platforms in the Netherlands — Admissibility of the action

Procedure — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unambiguous wording of the form of order sought by the applicant (Rules of Procedure of the Court of Justice, Art. 38(1)(c)) (see paras 15-22)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 3(1) and 13(2)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2) and of Articles 45 TFEU to 48 TFEU — Refusal to pay certain benefits to workers living in the Member States of the European Union who are employed on drilling platforms in the Kingdom of the Netherlands.

Operative part

The Court:

1. Dismisses the action as inadmissible;

2. Orders the European Commission to pay the costs;