ddrg/super_eurlex huggingface dataset:
15

Article 92 of the Order on pensions provides: ‘(1) The territorial division [of the Institut] shall transfer the sums of money for the payment of pensions to a central account of the territorial division of the “Balgarski poshti”. The accounting processes between the territorial division [of the Institut] and the territorial division of the “Balgarski poshti” relating to the pensions paid in any month shall be settled at the end of that month. (2) The [Institut] shall pay through its territorial divisions to the territorial divisions of the “Balgarski poshti” 8.5 thousandths of the pensions payable in the month in question for the work performed in connection with the payment of pensions through the postal network. That sum shall be transferred by the seventh day of the following month. (3) The value added tax payable on the sum referred to in paragraph (2) shall be transferred by the territorial division [of the Institut] to the territorial division of the “Balgarski poshti” together with the sum referred to in paragraph 2. (4) The transfers referred to in paragraphs (2) and (3) shall be made on the basis of an invoice which the territorial division of the “Balgarski poshti” shall issue after payment of the pensions during the month. (5) In the event that a post office employee is responsible for undue payment of pension, it shall be reimbursed to the territorial division [of the Institut] by the territorial division of the “Balgarski poshti”. …’
3

Article 78 of the Customs Code, entitled ‘Post-clearance examination of declarations’, provides: ‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods. 2. The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced. 3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’
7

Paragraph 25 of the Law on Telecommunications 2003 (Telekommunikationsgesetz 2003) (BGBl. I, No 70/2003, ‘the Law on Telecommunications’), is worded as follows: ‘(1) Operators of communications networks or services must adopt standard terms and conditions of business describing, inter alia, the services offered, and lay down the charging regime applicable to those services. The general terms and conditions and the charging regime must be notified to the regulatory authority before the service begins to be provided and shall be made public an in appropriate manner. (2) Before they come into effect, changes to the standard terms and conditions of business and the charging regime must be notified to the regulatory authority and announced appropriately. Changes that do not operate exclusively to the benefit of the subscriber must be announced and notified at least two months in advance. The provisions of the Law on consumer protection … and of the Civil Code shall otherwise remain unaffected. (3) The substance of changes that do not operate exclusively to the benefit of the subscriber must be notified to him in writing, for example by being printed on a periodic statement of account, not less than one month before the change comes into effect. At the same time, the subscriber must be alerted to the point in time at which the changes are to come into effect and to the fact that he is entitled to terminate the contract at no cost up until that time. … Changes to the standard terms and conditions of business and charging regimes applied by operators of communications networks and services which become necessary following an order adopted by the regulatory authority on the basis of this provision and which do not operate exclusively to the benefit of users shall not entitle the subscriber to terminate the contract at no cost. ... (5) Charging regimes must, at the very least, contain: ... 2. the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained, ...’
40

In view of the foregoing considerations, the reply to the question referred is that Article 15(1)(c) of Regulation No 44/2001, read in conjunction with Article 16(1) of that regulation, must, in so far as it relates to the contract concluded in the context of a commercial or professional activity ‘directed’ by the professional ‘to’ the Member State of the consumer’s domicile, be interpreted as meaning that it may be applied to a contract concluded between a consumer and a professional, which on its own does not come within the scope of the commercial or professional activity ‘directed’ by that professional ‘to’ the Member State of the consumer’s domicile, but which is closely linked to a contract concluded beforehand by those same parties in the context of such an activity. It is for the national court to determine whether the constituent elements of that link are present, in particular whether the parties to both of those contracts are identical in law or in fact, whether the economic objective of those contracts concerning the same specific subject-matter is identical and whether the second contract complements the first contract in that it seeks to make it possible for the economic objective of that first contract to be achieved.
28

Against that background, the Gyulai közigazgatási és munkaügyi bíróság (Administrative and Labour Court, Gyula) stayed the proceedings and referred the following questions to the Court for a preliminary ruling: ‘(1) Must the principle of flexibility and the possibility of amendment, as provided for in recitals 20 and 27 in the preamble to Regulation No 796/2004 or recitals 18, 23 and 26 in the preamble to Regulation No 1122/2009, be interpreted as precluding a national provision, under which, in the case of the cultivation of a rare plant species, the certificate relating to the rare plant must be attached to the application for payment, having regard to the administrative practice, in accordance with which it was possible to apply for the certificate only before applying for payment between 2 and 15 April 2010, and it was possible to attach it only at the same time as the presentation of the single application, and that the provision did not make it possible to remedy the defect in the application constituted by the failure to produce a certificate? (2) Is this provision consistent with the obligation of Member States not to undermine the objectives of the Common Agriculture Policy, or can it be said that the effective exercise of the right to aid under EU law by farmers who grow rare plants became impossible or excessively difficult and unpredictable in 2010 when the legislation was amended? (3) Do recital 57 in the preamble to Regulation No 796/2004 or recital 75 in the preamble to Regulation No 1122/2009 and, in particular, the principle of proportionality preclude an administrative practice which, in the event that there is no certificate relating to the rare plant, and without taking into consideration intention, negligence or the circumstances of the case, imposes a penalty for over-declaration in respect of the entire application, when the application for payment, in respect of the entire plot of land, otherwise complies with the requirements for granting the aid, and the farmer grows the declared plant in the area declared? (4) Are the grounds for exemption contained in recitals 67 or 71 in the preamble to Regulation No 796/2004 or in recital 75 in the preamble to Regulation No 1122/2009 applicable in the event that the farmer claims that a prejudicial or inappropriate administrative practice amounts to exceptional circumstances and seeks to demonstrate that the practice of the administrative body was wholly or partly the cause of his error? (5) Can the accepted declaration of force majeure submitted by the farmer in relation to the total loss of the crop (sowing) be regarded as correct information for the purposes of recital 67 in the preamble to Regulation No 796/2004 or recital 93 in the preamble to Regulation No 1122/2009, which would exonerate the farmer in respect of the failure to submit the certificate relating to the rare plant and thereby entail exemption from the penalties relating to the entire application?’
9

Under Article 222 of the Code of Civil Procedure: ‘1. The authority of res judicata attaching to final judgments, either upholding or dismissing a claim, shall exclude, in accordance with the law, any further proceedings having the same subject matter as that in which the first judgment was given. 2. The authority of res judicata shall attach to claims made in the main application and to counterclaims and to the matters referred to in Article 408(1) and (2) of this law. Facts subsequent to the expiry of the period for the lodging of pleadings in the proceedings in which such claims were made shall be regarded as new and different with respect to the basis on which such claims were made. 3. The authority of res judicata shall be binding on the parties to the proceedings in which it arises, their heirs and those deriving title from them, and on the persons who, not being parties to the proceedings, hold the rights which give them standing to bring proceedings in accordance with the provisions of Article 11 of this law. … 4. A decision that has acquired the force of res judicata in a final judgment concluding proceedings shall be binding on a court before which subsequent proceedings are brought where the decision having the force of res judicata appears, in the subsequent proceedings, to be a logical antecedent to the subject matter of the subsequent proceedings and where the parties to the two sets of proceedings are the same or where the authority of res judicata applies to them pursuant to provisions of the law.’
3

Article 17 of the Sixth Directive, headed ‘Origin and scope of the right to deduct’, provides: ‘1. The right to deduct shall arise at the time when the deductible tax becomes chargeable. 2. In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay: (a) value added tax due or paid within the territory of the country in respect of goods or services supplied or to be supplied to him by another taxable person; ... 5. As regards goods and services to be used by a taxable person both for transactions covered by paragraphs 2 and 3, in respect of which value added tax is deductible, and for transactions in respect of which value added tax is not deductible, only such proportion of the value added tax shall be deductible as is attributable to the former transactions. This proportion shall be determined, in accordance with Article 19, for all the transactions carried out by the taxable person. However, Member States may: (a) authorise the taxable person to determine a proportion for each sector of his business, provided that separate accounts are kept for each sector; (b) compel the taxable person to determine a proportion for each sector of his business and to keep separate accounts for each sector; (c) authorise or compel the taxable person to make the deduction on the basis of the use of all or part of the goods and services; (d) authorise or compel the taxable person to make the deduction in accordance with the rule laid down in the first subparagraph, in respect of all goods and services used for all transactions referred to therein; (e) provide that where the value added tax which is not deductible by the taxable person is insignificant it shall be treated as nil. …’
38

It is in those circumstances that the Centrale Raad van Beroep (Higher Social Security Court) decided to stay proceedings and refer to the Court the following questions: ‘(1) Must Article 3 and Article 94(1) and (2) of Regulation No 1408/71 be interpreted as meaning that a former seafarer who belonged to the crew of a vessel with a home port in a Member State, who had no place of residence on shore and who was not a national of a Member State cannot be denied (in part) an old-age pension, after the State of which that seafarer is a national acceded to the European Union or after Regulation No 1408/71 entered into force for that State, solely on the ground that that former seafarer was not a national of the (first-mentioned) Member State during the period of the (claimed) insurance cover? (2) Must Articles 18 TFEU and 45 TFEU be interpreted as precluding a rule of a Member State under which a seafarer who belonged to the crew of a vessel with a home port in that Member State, who had no place of residence on shore and who is not a national of any Member State, was excluded from insurance cover for purposes of an old-age pension, whereas, under that rule, a seafarer who is a national of the Member State in which the vessel has its home port and who is otherwise in the same situation is deemed to be insured, if the State of which the first-named seafarer is a national has in the meanwhile, by the time of the determination of the pension, acceded to [a legal predecessor of] the European Union or Regulation No 1408/71 has in the meanwhile entered into force for that State? (3) Must Questions 1 and 2 be answered in the same way in the case of a (former) seafarer who, at the time of his employment, was a national of a State which at a later date accedes to [a legal predecessor of] the European Union, but who, at the time of that accession or the entry into force of Regulation No 1408/71 for that State, and at the time of submitting his claim to entitlement to an old-age pension, was not a national of any Member State, but to whom Regulation No 1408/71 nevertheless applies pursuant to Article 1 of Regulation No 859/2003?’
1.

Declares that by, failing to provide adequately for the treatment of urban waste water discharged in sensitive areas and deriving from certain agglomerations, the Kingdom of Spain has failed to fulfil its obligations under, first, Article 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, as amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008, in relation to the agglomeration of Pontevedra-Marín-Poio-Bueu and, second, Article 5(2) and (3) of that directive, in relation to the agglomerations of Berga, Figueres, El Terri (Banyoles) and Pontevedra-Marín-Poio-Bueu;
In order to assess the similarity of the goods or services concerned, all the relevant factors which characterise the relationship between them should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary.

Although the complementary nature of the goods at issue represents only one factor amongst several others in the light of which the similarity of the goods can be assessed, the fact remains that it is an autonomous criterion capable of being the sole basis for the existence of such a similarity. Furthermore, the General Court cannot — subject to the obligation (i) to observe the general principles and the rules of procedure relating to the burden of proof and the taking of evidence and (ii) not to distort the clear sense of the evidence — be required to give express reasons for its assessment of the value of each piece of evidence presented to it, in particular where it considers that that evidence is unimportant or irrelevant to the outcome of the dispute. Accordingly, the General Court did not err in law by upholding the assessment of the Board of Appeal according to which the goods at issue were similar because of their complementarity, without carrying out, to that end, an analysis of the origin, the marketing, the distribution channels or the points of sale of those goods.

(see paras 21, 23-25)
Case C‑667/15

Loterie Nationale — Nationale Loterij NV van publiek recht

v

Paul Adriaensen and Others

(Request for a preliminary ruling

from the hof van beroep te Antwerpen)

(Reference for a preliminary ruling — Directive 2005/29/EC — Unfair business-to-consumer commercial practices — Misleading commercial practice — Pyramid promotional scheme — Contributions paid by new members and compensation received by existing members — Indirect financial link)

Summary — Judgment of the Court (Sixth Chamber), 15 December 2016

Approximation of laws — Unfair business-to-consumer commercial practices — Directive 2005/29 — Misleading commercial practice — Definition — Pyramid promotional scheme — Included — No requirement for a direct financial link between the contributions paid by new members and the compensation paid to existing members

(European Parliament and Council Directive 2005/29, Annex I, point 14)

Point 14 of Annex I to Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as allowing a commercial practice to be classified as a ‘pyramid promotional scheme’ even if there is only an indirect link between the contributions paid by new members of the scheme and the compensation paid to existing members.

It cannot be deduced from the wording of point 14 of Annex I to Directive 2005/29 that the required financial link must necessarily be direct. What matters is the description ‘primarily’ or ‘mostly’ applicable to the contributions paid by new participants in the scheme. Moreover, a contrary interpretation of that provision could deprive it of effectiveness, since the requirement of a direct link would make it possible easily to evade the absolute prohibition of pyramid promotional schemes.

In any event, a scheme appears to meet the conditions for classifying it as a ‘commercial practice’ within the meaning of Annex I to Directive 2005/29 where its aim is to generate a profit for itself, that is, for the promoters of the scheme, and not only for the players. It is for the referring court to satisfy itself of this.

(see paras 30, 31, 33, 34, operative part)
Article 2(1) of Directive 2000/35 on combating late payment in commercial transactions must be interpreted as meaning that a natural person holding a licence to carry on an activity as a self-employed craftsman must be regarded as an undertaking within the meaning of that provision, and a transaction concluded by him as a commercial transaction within the meaning of that provision, where that transaction, although not part of the activities covered by the licence, forms part of the exercise of an independent economic or professional activity that is structured and stable, which is for the referring court to ascertain in the light of all the circumstances of the case.

It is not enough for a person to conclude a transaction relating to an economic activity, such as leasing a chattel to another person, for him to be an undertaking and the transaction to be classified as commercial within the meaning of Article 2(1) of Directive 2000/35. The person must also act as an organisation within the framework of an independent economic or professional activity. That requirement means that that person, whatever his form and legal status may be in national law, must exercise that activity in a structured and stable manner, so that the activity cannot be limited to an isolated one-off supply, and that the transaction in question must form part of that activity. On the other hand, first, it does not follow from Article 2(1) of Directive 2000/35 that the activity in question must necessarily be the principal economic or professional activity of the person concerned, or be linked to that activity. Secondly, whether a person counts as an undertaking within the meaning of that provision cannot depend on the issue by the competent national authorities of a licence to exercise the activity in question.

In that respect, while the fact that the person concerned has concluded a transaction within the bounds of the activity for which he has been granted a licence may be taken into account among other factors for ascertaining whether he has acted as an undertaking within the meaning of Article 2(1) of Directive 2000/35, that fact cannot be decisive. Other circumstances that may be taken into account include in particular the fact that the person in question acts under his trading or professional name and the transaction concluded gives rise to the issue of an invoice.

(see paras 33-36, 40, 42, 44, operative part 1)
Case C‑645/15

Bund Naturschutz in Bayern eV

and

Harald Wilde

v

Freistaat Bayern

(Request for a preliminary ruling

from the Bayerischer Verwaltungsgerichtshof)

(Reference for a preliminary ruling — Environment — Assessment of the effects of certain public and private projects on the environment — Directive 2011/92/EU — Project subject to assessment — Annex I, point 7 — European Agreement on Main International Traffic Arteries (AGR) — Widening of a road with four lanes over a length of less than 10 km)

Summary — Judgment of the Court (Sixth Chamber), 24 November 2016

Environment—Assessment of the effects of certain plans and programmes on the environment—Directive 2011/92—Projects listed in Annex I subject to an assessment—Road construction projects—Obligation to subject projects having a length of less than 10 km to an assessment—No such obligation

Point 7(c) of Annex I to Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment cannot be interpreted to the effect that it covers a road development project which, whilst it concerns a stretch of road that is under 10 km in length, consists in the widening or development of an existing road with four or more lanes. It is clear from point 7(c) of Directive 2011/92 that the EU legislature intended to restrict the Member States’ obligation to make certain road development projects subject to a systematic environmental impact assessment solely to those projects which concern road sections of a significant length, in the event a length of at least 10 km. In that regard, although the scope of Directive 2011/92 is wide and its purpose very broad, a purposive interpretation of that directive nevertheless cannot disregard the clearly expressed intention of the EU legislature. (see paras 22, 23, 26, operative part 1)

Point 7(b) of Annex I to Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment must be interpreted as meaning that ‘express roads’ for the purposes of that provision are roads whose technical characteristics are those set out in the definition in point II.3 of Annex II to the European Agreement on Main International Traffic Arteries (AGR), even if those roads do not form part of the network of main international traffic arteries or are located in urban areas. (see para. 35, operative part 2)