ddrg/super_eurlex huggingface dataset:
9

Article 12 of the Sixth Directive is worded as follows: ‘1. The laws of Member States must provide for an adequate system of protection for the interests of the creditors of the companies involved in a division whose claims antedate publication of the draft terms of division and have not yet fallen due at the time of such publication. 2. To that end, the laws of Member States shall at least provide that such creditors shall be entitled to obtain adequate safeguards where the financial situation of the company being divided and that of the company to which the obligation will be transferred in accordance with the draft terms of division make such protection necessary and where those creditors do not already have such safeguards. 3. In so far as a creditor of the company to which the obligation has been transferred in accordance with the draft terms of division has not obtained satisfaction, the recipient companies shall be jointly and severally liable for that obligation. Member States may limit that liability to the net assets allocated to each of those companies other than the one to which the obligation has been transferred. However, they need not apply this paragraph where the division operation is subject to the supervision of a judicial authority in accordance with Article 23 and a majority in number representing three-fourths in value of the creditors or any class of creditors of the company being divided have agreed to forego such joint and several liability at a meeting held pursuant to Article 23(l)(c). 4. Article 13(3) of [the Third Directive] shall apply. 5. Without prejudice to the rules governing the collective exercise of their rights, paragraphs 1 to 4 shall apply to the debenture holders of the companies involved in the division except where the division has been approved by a meeting of the debenture holders, if such a meeting is provided for under national laws, or by the debenture holders individually. 6. Member States may provide that the recipient companies shall be jointly and severally liable for the obligations of the company being divided. In such case they need not apply the foregoing paragraphs. 7. Where a Member State combines the system of creditor protection set out in paragraph 1 to 5 with the joint and several liability of the recipient companies as referred to in paragraph 6, it may limit such joint and several liability to the net assets allocated to each of those companies.’
20

In the light of all the foregoing, the Korkein oikeus (Supreme Court) decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling: ‘(1) Is the amount of the benefit received from an alleged infringement of a trade mark by a private individual relevant when assessing whether his conduct is the use of a trade mark in the course of trade within the meaning of Article 5(1) of [Directive 2008/95] or purely private use? If a private individual uses a trade mark, does use in the course of trade require the satisfaction of criteria other than the requirement of economic benefit obtained from the transaction in question concerning the trade mark? (2) If the economic benefit must have a certain degree of significance, and a person, on the basis of the triviality of the economic benefit received by him and the non-fulfilment of other possible criteria of use in the course of trade, may not be regarded as having used a trade mark in the course of his own trade, is the condition of use in the course of trade within the meaning of Article 5(1) of [Directive 2008/95] satisfied if a private individual uses a trade mark on behalf of another person as part of that other person’s trade, where he is not, however, an employee in the service of that other person? (3) Does a person keeping goods use a trade mark in relation to goods within the meaning of Article 5(1) and (3)(b) of [Directive 2008/95] if the goods on which the trade mark is affixed, sent to a Member State and released into free circulation there, are taken delivery of and retained on behalf of a company that deals in goods by a person who does not carry on a business of importing and storing goods and who does not have a licence to operate a customs warehouse or tax warehouse? (4) May a person be regarded as importing goods on which a trade mark is affixed within the meaning of Article 5(3)(c) of [Directive 2008/95] if the goods were not imported at the person’s request, but the person provided his address to a dealer and the goods released into free circulation in the Member State were taken delivery of by that person on behalf of the dealer, and that person retained them for some weeks and delivered them for shipment to a third country outside the European Union for the purpose of resale there?’
19

Hearing an action brought by FV against that decision, the conseil arbitral de la sécurité sociale (Social Security Arbitration Board, Luxembourg) held, by decision of 17 November 2017, that that action was founded in respect of the claim that family allowance for HY should continue to be payable after 31 July 2016. According to the conseil arbitral de la sécurité sociale (Social Security Arbitration Board): – Luxembourg family benefits constitute a social advantage within the meaning of Article 7(2) of Regulation No 492/2011; they relate to the pursuit of activity as an employed person since, in order to be eligible for them, FV must be a worker subject to Luxembourg law; no distinction should be drawn according to whether that social advantage takes the form, as in the case of family benefits, of the child having an entitlement to the benefits in his own right or of entitlement to those benefits lying with FV, who has responsibility for the child and is subject to Luxembourg social legislation, whether or not he is a national worker; – the scheme established by Articles 269 and 270 of the Code, in the version applicable from 1 August 2016, introduces a difference in treatment depending on where the child concerned resides, since there is a difference in treatment in the recognition of social advantages for the recipient of the family allowances depending on whether that person is a national worker with responsibility for a child of his or her spouse who lives in Luxembourg or a frontier worker who assumes responsibility for a spouse’s child who lives in the frontier worker’s Member State of origin rather than in Luxembourg; that situation is contrary to Article 7(2) of Regulation No 492/2011; and – even though Article 1(i) of Regulation No 883/2004 refers back to the national legislation of the Member State concerned for the definition of ‘member of the family’, the national law at issue, namely Article 270 of the Code, in the version applicable since 1 August 2016, is incompatible with Article 7(2) of Regulation No 492/2011.
6

Article 22 of that regulation provides: ‘1. In order to identify the customer’s fixed establishment to which the service is provided, the supplier shall examine the nature and use of the service provided. Where the nature and use of the service provided do not enable him to identify the fixed establishment to which the service is provided, the supplier, in identifying that fixed establishment, shall pay particular attention to whether the contract, the order form and the VAT identification number attributed by the Member State of the customer and communicated to him by the customer identify the fixed establishment as the customer of the service and whether the fixed establishment is the entity paying for the service. Where the customer’s fixed establishment to which the service is provided cannot be determined in accordance with the first and second subparagraphs of this paragraph or where services covered by Article 44 of Directive 2006/112/EC are supplied to a taxable person under a contract covering one or more services used in an unidentifiable and non-quantifiable manner, the supplier may legitimately consider that the services have been supplied at the place where the customer has established his business. 2. The application of this Article shall be without prejudice to the customer’s obligations.’
51

Ireland also contends that whether Article 260(3) TFEU is applicable must be assessed on a case-by-case basis, taking into account the bone fides of the Member State concerned. Since the power conferred upon the Commission by Article 260(3) TFEU is discretionary in nature, it must be concluded that the Commission’s blanket policy, as set out in the Commission communication entitled ‘EU law: Better results through better application’ (OJ 2017 C 18 p. 10), consisting in systematically requesting the imposition of lump sums and penalty payments, is not consistent with the objective of that provision. In addition, that policy does not accommodate good faith efforts by Member States. In the present case, the Commission was informed of the progress in transposing Directive 2015/849 and of the timetable established for adopting the measures transposing it. In such circumstances, the imposition of a lump sum payment is not likely to achieve a deterrent effect such as to safeguard ‘the general interests pursued by Union legislation’ referred to by the Commission, but might, on the contrary, serve to motivate Member States to compromise the quality of transposition in favour of timeliness of transposition. Accordingly, the Commission approach infringes the principle of proportionality set out in Article 5(4) TEU. Furthermore, that approach does not sit well with the Commission’s duty of sincere cooperation under Article 4(3) TEU. Its decision to request systematically the payment of a lump sum without stating reasons for that request on a case-by-case basis is indeed contrary to the case-law of the Court according to which the imposition of a lump sum must not be automatic and must be decided according to the circumstances of the case. In the present case, the Commission’s objective is to make an example of Ireland and to prompt the other Member States, in future, to comply with the transposition periods prescribed in directives. That is unfair and unlawful. The Commission’s conduct is based, moreover, on the assumption that Member States are seeking to delay transposition of directives, which is tantamount in fact to assuming bad faith on their part. Such an assumption runs counter to the duty of sincere cooperation under Article 4(3) TEU.
8

Paragraph 26 of the Gesetz über den Schutz von Marken und sonstigen Kennzeichen (Markengesetz) (Law on the protection of trade marks and other distinctive signs) of 25 October 1994 (BGBl. 1994 I, p. 3082; ‘the Law on trade marks’), entitled ‘Use of the trade mark’, provides: ‘(1) Where the assertion of rights from a registered trade mark or the upholding of the registration depends on the trade mark having been used, it must have been genuinely used in this country by its proprietor for the goods or services in respect of which it is registered unless there are legitimate grounds for non-use. (2) The use of the trade mark with the consent of the proprietor shall be deemed to constitute use by the proprietor. (3) The use of the trade mark in a form which deviates from the registration shall also be deemed to constitute use of a registered trade mark in so far as the deviation does not change the distinctive character of the trade mark. The first sentence shall also be applied if the trade mark is likewise registered in the form in which it has been used. (4) Use in this country shall be deemed to also include the affixing of the trade mark to goods or their wrapping or packaging in this country if the goods are exclusively intended for export. (5) In so far as use within five years from the time of the registration is necessary, in cases in which an opposition has been lodged against the registration, the time of the registration shall be replaced by the time of the conclusion of the opposition proceedings.’
13

Article 22 of that code, entitled ‘Decisions taken upon application’, provides: ‘1. Where a person applies for a decision relating to the application of the customs legislation, that person shall supply all the information required by the competent customs authorities in order to enable them to take that decision. … 2. Customs authorities shall, without delay and at the latest within 30 days of receipt of the application for a decision, verify whether the conditions for the acceptance of that application are fulfilled. Where the customs authorities establish that the application contains all the information required in order for them to be able to take the decision, they shall communicate its acceptance to the applicant within the period specified in the first subparagraph. 3. The competent customs authority shall take a decision as referred to in paragraph 1, and shall notify the applicant without delay, and at the latest within 120 days of the date of acceptance of the application, except where otherwise provided … 6. Before taking a decision which would adversely affect the applicant, the customs authorities shall communicate the grounds on which they intend to base their decision to the applicant, who shall be given the opportunity to express his or her point of view within a period prescribed from the date on which he or she receives that communication or is deemed to have received it. Following the expiry of that period, the applicant shall be notified, in the appropriate form, of the decision. … 7. A decision which adversely affects the applicant shall set out the grounds on which it is based and shall refer to the right of appeal provided for in Article 44.’
Judgment of the Court (First Chamber) of 14 May 2020 — Commission v United Kingdom (VAT — Regime applicable to terminal markets)

(Case C‑276/19) ( 1 )

(Failure of a Member State to fulfil obligations — Common system of value added tax (VAT) — Directive 2006/112/EC — Derogations — Simplification measures and measures to prevent tax evasion or avoidance — Article 395(2) — Obligation incumbent on Member States to notify the European Commission of special measures intended to simplify the procedure for charging VAT — Substantial amendment of the measure initially notified)

1. Actions for failure to fulfil obligations — Subject matter of the dispute — Determination during the pre-litigation procedure — Adjustment because of a change in EU law — Whether permissible — Conditions (Art. 258 TFEU) (see para. 39)

2. Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — National measures derogating therefrom — Simplifying measure for collecting that tax —Substantial amendment to a measure initially notified —Amendment constituting a new special derogation measure —Obligation to notify the Commission for the purposes of Council authorisation — Non-compliance — Failure to fulfil obligations (Council Directive 2006/112, Art. 395(2)) (see paras 50-53, 57, operative part)

Operative part

The Court:

1. Declares that by introducing new simplification measures that extend the zero-rating and the exception to the normal requirement to keep value added tax records which were provided for in the Value Added Tax (Terminal Markets) Order 1973, as amended by the Value Added Tax (Terminal Markets) (Amendment) Order 1975, without submitting an application to the European Commission with a view to seeking the authorisation of the Council of the European Union, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 395(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax.

2. Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

( 1 ) OJ C 206, 17.6.2019.
European Parliament – Members – Expenses and allowances – Recovery of sums unduly paid – Decision of the Bureau of the Parliament – Criminal law or administrative law nature of the penalty – None

(Decision of the Bureau of the European Parliament laying down the Implementing Measures for the Statute for Members of the European Parliament)

(see para. 52)
Judicial proceedings – Introduction of new pleas during the proceedings – Conditions – Plea based on matters which have come to light in the course of the procedure – Late submission of the application to introduce a new plea in law – Inadmissibility

(Rules of Procedure of the General Court, Art. 84(1) and (2))

(see paras 14-16, 20-23)
1.

Declares that, by excluding from the special value-added-tax (VAT) scheme applicable to travel agents travel services provided to taxable persons who use those services for their business, and by authorising travel agents, in so far as they are subject to that scheme, to determine the taxable amount for VAT on a flat-rate basis for groups of services or for all services provided during a tax year, the Republic of Austria has failed to fulfil its obligations under Article 73 and Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax.
Common foreign and security policy – Restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Rights of the defence – Notification of inculpatory evidence – Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures – No new grounds – Inculpatory evidence identical to the evidence previously admitted in the initial decision – Infringement of the right to be heard – Absence

(Charter of Fundamental Rights of the European Union, Art. 41; Council Decisions (CFSP) 2016/850, (CFSP) 2017/917 and (CFSP) 2018/778)

(see paras 43-47)
Judgment of the Court (Seventh Chamber) of 15 April 2021 – Finanzamt für Körperschaften Berlin

(Case C‑868/19)

(Reference for a preliminary ruling – Value-added tax (VAT) – Directive 2006/112/EC – Article 9 – Taxable persons – Article 11 – Option for the Member States to treat as a single taxable person persons who are independent from a legal point of view but are closely linked to one another financially, economically and organisationally (‘VAT group’) – Concept of ‘close financial links’ – National legislation according to which partnerships, whose partners, alongside the controlling company, are not solely financially integrated persons in the undertaking of the controlling company, are prevented from being a member of a VAT group – Legal certainty – Preventative measures against fraud and tax evasion – Proportionality – VAT neutrality)

1. Harmonisation of fiscal legislation – Common system of value added tax – Taxable persons – Concept – First paragraph of Article 11 of Directive 2006/112 – Direct effect – None (Council Directive 2006/112, Art. 11, first para.) (see para. 43)

2. Harmonisation of fiscal legislation – Common system of value added tax – Taxable persons – Concept – Option for Member States to regard persons who are closely linked as a single taxable person – National legislation which makes the option for a partnership to create, with the undertaking of the controlling company, a group of persons which may be considered to be a single taxable person, subject to the financial integration of its partner in that undertaking – Inadmissibility in the light of the principles of legal certainty, proportionality and fiscal neutrality (Council Directive 2006/112, Art 11) (see paras 45-55, 57, 58, 61, 63-65, 68, operative part)

Operative part

Article 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in light of the principles of legal certainty, proportionality and fiscal neutrality, must be interpreted as meaning that it precludes a national law which makes the option for a partnership to create, alongside the undertaking of the controlling company, a group of persons which may be considered to be a single taxable person for value added tax, on the condition that the partners in the partnership, alongside the controlling company, are solely persons who are financially integrated in that undertaking.
18

That court adds that, in the light of the Commission’s explanatory note, according to which ‘the expression “vessels, designed as seagoing” means vessels which, by reason of their construction and equipment, are capable of operating at sea even in bad weather (winds of about force 7 on the Beaufort scale)’, it is conceivable that it is not the distance between the vessel and the coast which matters, but solely the possibility that the latter is seagoing in bad weather. However, distance from the coast increases the effects of bad weather, in particular because of the increasing height of waves. In addition, even if the concept of ‘seagoing’ were disregarded and even if it were necessary only to ascertain whether a vessel, having regard to its construction and equipment, is capable of operating at sea in winds of force 7 on the Beaufort scale, it is important to know from what distance from the coast a vessel must be able to operate in those circumstances in order to be classified as a ‘seagoing vessel’ within the meaning of Chapter 89 of the CN.
12

The Magyar Köztársaság rendőrségének csapatszolgálati Szabályzata kiadásáról szóló 11/1998 ORFK utasítás (Instruction No 11/1998 of the National Police Headquarters governing duties in teams provided by the Police of the Republic of Hungary) of 23 April 1998 provides: ‘… 12. … … Police team alert duty The purpose of the alert duty is to keep the police team in readiness to start its deployment at the shortest possible notice. It includes assembling, deploying and provisioning the police team, forming groups and establishing the distribution of the groups required, providing the material resources necessary for the police team’s activities, preparing the units and keeping them at the operational level established. 14. The police team may be placed on alert duty by way of pre-planned mobilisation with knowledge of the tasks envisaged or by way of orderly mobilisation in a contingency situation. The latter scenario may arise in particular where an alert duty has already been commenced for particular tasks and a new alert duty needs to be organised but the deployment of police officers mobilised for other forms of duty is not possible or adequate. … 17. The readiness of a police team on alert duty will reflect the speed with which the team is able to start a given task. That will depend on the extent to which the commander of the unit has previously determined the conditions that must be present in order for the task to start. Depending on whether or not those conditions are present, the team may be placed on heightened alert or on general alert. … 19. The alert duty starts when the state of alert reaches a certain level and will continue until such time as the alert is lifted or officers are transferred to other activities. A police team on alert duty must be able to perform the tasks specified in less than 15 minutes when it is in a state of heightened alert and in less than one hour when it is in a state of general alert. The commander ordering the use of the police team may reduce the normal time limits depending on the nature of the task envisaged or the preparedness of the unit.’