ddrg/super_eurlex huggingface dataset:
22.

That case-law is none the less subject to certain provisos. For VAT to be deductible, the input transactions must have a direct and immediate link with the output transactions giving rise to a right of deduction. Thus, the right to deduct VAT charged on the acquisition of input goods or services presupposes that the expenditure incurred in acquiring them was a component of the cost of the output transactions that gave rise to the right to deduct. A taxable person also has a right to deduct even where there is no direct and immediate link between a particular input transaction and an output transaction or transactions giving rise to the right to deduct, where the costs of the services in question are part of his general costs and are, as such, components of the price of the goods or services which he supplies. Such costs do have a direct and immediate link with the taxable person’s economic activity as a whole. There must always be such a link between the goods and services acquired and the output transactions in respect of which VAT is deductible. The ultimate aim pursued by the taxable person is irrelevant in that respect. ( 11 ) However, to the extent that input VAT relating to expenditure incurred by a taxpayer is connected with activities which, in view of their non-economic nature, do not fall within the scope of the Sixth Directive, it cannot give rise to a right to deduct. ( 12 )
8.

In the light of the information supplied at that time by inspectors during inspections carried out on the Member States concerned, it was established that bluefin tuna fishing opportunities in the Atlantic Ocean, east of longitude 45° [W], and in the Mediterranean Sea, assigned to tuna fishing vessels flying the flag of Greece, France, Italy, Cyprus and Malta would be regarded as exhausted on 16 June 2008. Fishing opportunities for purse seiners flying the Spanish flag would be regarded as exhausted on 23 June 2008. In the light of those facts, the Commission, in accordance with Article 7 of Regulation No 2371/2002, adopted Regulation No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45°W, and in the Mediterranean Sea. ( 7 ) The first three articles of Regulation No 530/2008 provide as follows: ‘Article 1 Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus and Malta shall be prohibited as from 16 June 2008. It shall also be prohibited to retain on board, place in cages for fattening or farming, tranship, transfer or land such stock caught by those vessels as from that date. Article 2 Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seiners flying the flag of or registered in Spain shall be prohibited as from 23 June 2008. It shall also be prohibited to retain on board, place in cages for fattening or farming, tranship, transfer or land such stock caught by those vessels as from that date. Article 3 1. Subject to paragraph 2, as from 16 June 2008, Community operators shall not accept landings, placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean Sea by purse seiners. 2. It shall be allowed to land, place in cages for fattening or farming and to tranship in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean Sea by purse seiners flying the flag of, or registered in Spain until 23 June 2008.’
45.

In Hendrikman and Feyen, ( 12 ) the Court stated that, where proceedings are initiated against a person without his knowledge and a lawyer appears before the court first seised on his behalf but without his authority, such a person is quite powerless to defend himself. That person must therefore be regarded as ‘a defendant in default of appearance’ within the meaning of Article 27(2) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, ( 13 ) even if the proceedings before the court first seised became, in point of form, proceedings inter partes. ( 14 ) The case that gave rise to that judgment turned on the question whether the court of the Member State requested could refuse to recognise judgments handed down by the court of another Member State where those judgments were delivered against a defendant who had not been duly served with, or notified of, the document instituting proceedings in sufficient time and who was not validly represented during those proceedings, albeit that the judgments handed down were not delivered in default of appearance, because someone purporting to represent the defendant had appeared before the court first seised.
6.

Article 3 (‘Determination of injury’) provides, in particular: ‘... 2. A determination of injury shall be based on positive evidence and shall involve an objective examination of both: (a) the volume of the dumped imports and the effect of the dumped imports on prices in the [Union] market for like products; and (b) the consequent impact of those imports on the [Union] industry. 3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the [Union]. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the [Union] industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of these factors can necessarily give decisive guidance. … 5. The examination of the impact of the dumped imports on the [Union] industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation, the magnitude of the actual margin of dumping, actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilisation of capacity; factors affecting [Union] prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance. 6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, this shall entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the [Union] industry as provided for in paragraph 5, and that this impact exists to a degree which enables it to be classified as material. …’
9.

Article 5 of the Access Directive, entitled ‘Powers and responsibilities of the [NRAs] with regard to access and interconnection’, provides: ‘1. [NRAs] shall, acting in pursuit of the objectives set out in Article 8 of [the Framework Directive], encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, efficient investment and innovation, and gives the maximum benefit to end-users. In particular, without prejudice to measures that may be taken regarding undertakings with significant market power in accordance with Article 8, [NRAs] shall be able to impose: (a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case; … 3. Obligations and conditions imposed in accordance with paragraphs 1 and 2 … shall be implemented in accordance with the procedures referred to in Articles 6 and 7 of [the Framework Directive]. 4. With regard to access and interconnection, Member States shall ensure that the [NRA] is empowered to intervene at its own initiative where justified or, in the absence of agreement between undertakings, at the request of either of the parties involved, in order to secure the policy objectives of Article 8 of [the Framework Directive], in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of [the Framework Directive].’
56.

Since the removal of fixed establishments, workers of the undertakings at issue in the main proceedings can no longer calculate freely the distance between their home and their workplace. They must work each day in a number of different places which they are not informed of until the previous day, and in the order determined by the employer. Like the Commission, I consider that to describe as ‘rest time’ the daily travelling, which the workers are required to undertake to visit customers and in respect of which they have neither control nor knowledge until the previous day, imposes on them a disproportionate burden and is contrary to the objective of the protection of the safety and health of workers contained in Directive 2003/88. On the other hand, it does not seem disproportionate that that burden should be taken on by the undertakings at issue in the main proceedings, which have chosen, through the use of new technology, to introduce that new way of organising the work, which benefit from it in terms of the reduction of costs relating to fixed infrastructure and which have the power to determine the length of the journeys made by the workers.
27.

The situation is different where the defendant first becomes aware after the expiry of the time limit for appeal that a judgment has been given against him without his knowledge. Since it is no longer possible for him to lodge an appeal, without more, in order to contest the judgment in the State in which it was given, he must first explore the options for applying for relief and then initiate the relevant proceedings. Only after that would he be able, at a second stage, to lodge an appeal against the judgment, assuming he was successful with the application for relief. Unlike the situation described in point 26, the defendant would thus be encumbered with two proceedings (and their associated costs) whose subject-matter would exceed to a considerable extent the substance of the dispute in the judgment, given that the issue of reopening the case would also have to be appraised. Moreover, if consideration is also given to the fact that, in addition to the procedural and cost complications, practical problems could also arise, such as finding suitable lawyers and translation costs, it becomes clear that the defendant would be in a much worse position than the claimant if, in order to defend himself against the declaration of enforceability, he is encumbered with the burden of reopening the case. This applies particularly to defendants with little legal experience and few financial resources. Particularly in the case of relatively small claims it would have to be expected that such defendants, in view of the potential cost and procedural complications, might be inclined to accept the enforcement without defending themselves against it as a way of at least saving on additional legal and procedural costs, whose profitability in the case of cross-border cases is often difficult to estimate, particularly for the layman.
12.

Article 28 of Ley 24/1988, del Mercado de Valores (Law 24/1988 on the Securities Market) of 28 July 1988, ( 4 ) in the version applicable in the main proceedings, provides: ‘1. Responsibility for the information given in a prospectus attaches at least to the issuer, the offeror or the person asking for the admission to trading on an official secondary market and the directors of those persons, in accordance with the provisions laid down by regulation. The responsibility referred to in the preceding subparagraph shall likewise attach to the guarantor of the securities in respect of the information it is required to provide. The lead entity shall also be held responsible in respect of the monitoring work it carries out, in accordance with the provisions laid down by regulation. Responsibility shall also attach, in accordance with the provisions laid down by regulation, to any other persons agreeing to assume responsibility for the prospectus, provided that fact is stated in that document, and to any other persons not referred to above who have authorised the contents of the prospectus. 2. The persons responsible for the information in the prospectus shall be clearly identified in the prospectus by their names and functions or, in the case of legal persons, their names and registered offices. They must also declare that, to the best of their knowledge, the information contained in the prospectus is in accordance with the facts and that the prospectus makes no omission likely to affect its import. 3. In accordance with the provisions laid down by regulation, all the persons referred to in the preceding paragraphs shall, where appropriate, be liable for any damage caused to the holders of securities acquired as a result of incorrect information or the omission of relevant data from the prospectus or from the document to be prepared, where appropriate, by the guarantor. The liability claim shall become time-barred three years from the time when the claimant could have become aware of the inaccurate information in, or the omissions from, the prospectus. 4. No liability shall attach to the persons referred to in the preceding paragraphs on the basis of the summary, or of its translation, unless it is misleading, inaccurate or inconsistent when read together with the other parts of the prospectus, or does not provide, when read together with the other parts of the prospectus, key information that will assist investors when deciding whether or not to invest in the securities.’
55.

For the reasons set out above, I propose that the Court of Justice should answer the questions referred for a preliminary ruling by the Sąd Najwyższy (Supreme Court, Poland) as follows: The right to a tribunal established by law, affirmed by the second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that, in circumstances such as those of the main proceedings, a person appointed to the position of judge of the Sąd Najwyższy (Supreme Court), Disciplinary Chamber, does not comply with that requirement if his act of appointment was delivered in flagrant breach of national rules governing the procedure for the appointment of judges of the Supreme Court, which is a matter for the referring court to establish. In the context of that assessment, the referring court must appraise the manifest and intentional character as well as the gravity of the breaches in question. The second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter must be interpreted as meaning that a court chamber does not constitute an independent and impartial tribunal, within the meaning of those provisions, when the objective conditions in which it was created, its characteristics as well as the manner of appointment of its members are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). In such a situation, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply national law provisions which reserve jurisdiction to rule on actions, such as the one in the main proceedings, to such a chamber, so that those actions may be examined by a court which fulfils the requirements of independence and impartiality referred to above and which would have jurisdiction were it not for those provisions.
5.

Article 4 of that directive provided: ‘1. “Taxable person” shall mean any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity. … 4. The use of the word “independently” in paragraph 1 shall exclude employed and other persons from the tax in so far as they are bound to an employer by a contract of employment or by any other legal ties creating the relationship of employer and employee as regards working conditions, remuneration and the employer’s liability. Subject to the consultations provided for in Article 29, each Member State may treat as a single taxable person persons established in the territory of the country who, while legally independent, are closely bound to one another by financial, economic and organisational links. 5. States, regional and local government authorities and other bodies governed by public law shall not be considered taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with these activities or transactions. However, when they engage in such activities or transactions, they shall be considered taxable persons in respect of these activities or transactions where treatment as non-taxable persons would lead to significant distortions of competition. In any case, these bodies shall be considered taxable persons in relation to the activities listed in Annex D, provided they are not carried out on such a small scale as to be negligible. Member States may consider activities of these bodies which are exempt under Article 13 or 28 as activities which they engage in as public authorities.’
7.

Article 3 of Protocol No 36 states: ‘1. In accordance with Article 16(4) [TEU], the provisions of that paragraph and of Article 238(2) [TFEU] relating to the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2014. 2. Between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in paragraph 3. In that case, paragraphs 3 and 4 shall apply. 3. Until 31 October 2014, the following provisions shall remain in force, without prejudice to the second subparagraph of Article 235(1) [TFEU]. For acts of the European Council and of the Council requiring a qualified majority, members’ votes shall be weighted as follows: … [ ( 7 )] Acts shall be adopted if there are at least 260 votes in favour representing a majority of the members where, under the Treaties, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 260 votes in favour representing at least two thirds of the members. A member of the European Council or the Council may request that, where an act is adopted by the European Council or the Council by a qualified majority, a check is made to ensure that the Member States comprising the qualified majority represent at least 62% of the total population of the Union. If that proves not to be the case, the act shall not be adopted. 4. Until 31 October 2014, the qualified majority shall, in cases where, under the Treaties, not all the members of the Council participate in voting, namely in the cases where reference is made to the qualified majority as defined in Article 238(3) [TFEU], be defined as the same proportion of the weighted votes and the same proportion of the number of the Council members and, if appropriate, the same percentage of the population of the Member States concerned as laid down in paragraph 3 of this Article.’
Case C‑141/18 RX

FV

v

Council of the European Union

(Review)

Summary — Decision of the Court (Reviewing Chamber), 19 March 2018

Review — Conditions laid down in Article 62 of the Statute of the Court of Justice of the European Union — Conditions not fulfilled

(Statute of the Court of Justice, Art. 62)

See the text of the decision.

(see paras 4, 5, operative part)
EN Official Journal of the European Union C 8/5

Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany), lodged on 22 October 2007 — Dietmar Klarenberg v Ferrotron Technologies GmbH

(Case C-466/07)

(2008/C 8/09)

Language of the case: German

Referring court

Landesarbeitsgericht Düsseldorf

Parties to the main proceedings

Applicant: Dietmar Klarenberg

Defendant: Ferrotron Technologies GmbH

Question referred

Is a part of an undertaking or business only transferred to another employer within the meaning of Article 1(1)(a) and (b) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (1), if the new employer operates the part of an undertaking or business as an organisationally autonomous part of an undertaking or business?

(1) OJ L 82, 12.3.2001, p. 16.
(f)

Having regard to the conditions which the Court of Justice lays down regarding the present Article 87(1) (formerly 92(1)), in particular in its judgment of 24 July 2003 in Case C-280/00 Altmark (2), for classification of State aid (‘First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition.’), what is the meaning and scope of the expressions (i) conferring of an advantage (ii) which distorts competition, in a situation in which the beneficiaries have exclusive rights for public passenger transport services in the cities of Lisbon and Oporto but also operate links to those cities, in areas where other operators are also active? In other words, what criteria must we apply in order to be able to conclude that the conferring of an advantage distorts competition? In that connection, is it relevant to ascertain the percentage of costs which, as far as the undertakings are concerned, is attributable to transport services operating outside the area of exclusivity? In short, is it necessary that the aid has repercussions on the activity carried on outside the exclusivity area (Lisbon and Oporto) in clearly significant terms?
1.

Is the entry in the accounts referred to in Article 221(1) of the Community Customs Code (established by Council Regulation (EEC) No 2913/92 of 12 October 1992 (1); hereinafter ‘the customs code’) the entry in the accounts referred to in Article 217 of the customs code, which consists in the amount of duty being entered by the customs authorities in the accounting records or on any other equivalent medium, and is that entry in the accounts to be distinguished from the inclusion of the amount of duty in the accounts for own resources as referred to in Article 6 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (2) (now Article 6 of Council Regulation 1150/2000 (EC, Euratom) of 22 May 2000 implementing Decision 2000/597/EC, Euratom on the system of the Communities' own resources (3))?