ddrg/super_eurlex huggingface dataset:
Case C‑171/16

Trayan Beshkov

v

Sofiyska rayonna prokuratura

(Request for a preliminary ruling from the Sofiyski Rayonen sad)

(Reference for a preliminary ruling — Area of freedom, security and justice — Framework Decision 2008/675/JHA — Scope — Taking into account, in the course of new criminal proceedings, a previous conviction handed down in another Member State, in order to impose an overall sentence — National procedure for prior recognition of that conviction — Altering the arrangements for enforcing the sentence imposed in the other Member State)

Summary — Judgment of the Court (Fifth Chamber), 21 September 2017

Judicial cooperation in criminal matters—Taking account of convictions in the Member States of the European Union in the course of new criminal proceedings—Framework Decision 2008/675—Scope—National procedure concerned with the imposition, for the purposes of execution, of an overall custodial sentence that also takes into account the sentence imposed following a previous conviction handed down by a court of another Member State—Included (Council Framework Decision 2008/675) Judicial cooperation in criminal matters—Taking account of convictions in the Member States of the European Union in the course of new criminal proceedings—Framework Decision 2008/675—Taking into account a previous conviction handed down in another Member State subject to implementation of a national procedure for prior recognition of that conviction—Not permissible (Council Framework Decision 2008/675) Judicial cooperation in criminal matters—Taking account of convictions in the Member States of the European Union in the course of new criminal proceedings—Framework Decision 2008/675—National procedure concerned with the imposition, for the purposes of execution, of an overall custodial sentence that also takes into account the sentence imposed following a previous conviction handed down by a court of another Member State—Altering the arrangements for enforcing the sentence imposed following a previous conviction handed down by a court of another Member State—Not permissible (Council Framework Decision 2008/675)
Articles 47(2) and 48(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as not precluding national legislation which excludes the possibility for an economic operator taking part in a tendering procedure to replace an auxiliary undertaking that has lost required qualifications after the submission of its tender and which results in the automatic exclusion of that operator.

In the main proceedings, as the Advocate General observed in point 47 of his Opinion, the possibility afforded, unpredictably, exclusively to a consortium of undertakings to replace a third-party undertaking which belongs to that consortium and has lost a qualification that is required in order not to be excluded would amount to a substantial change of the tender and the very identity of the consortium. Indeed, such a change of the tender would compel the contracting authority to carry out new checks whilst at the same time granting a competitive advantage to that consortium which might attempt to optimise its tender in order to deal better with its competitors’ tenders in the procurement procedure at issue. Such a situation would be contrary to the principle of equal treatment which requires that tenderers be afforded equality of opportunity when formulating their bids and which implies that the bids of all tenderers must be subject to the same conditions, and would amount to a distortion of healthy and effective competition between undertakings participating in a public procurement procedure.

(see paras 39, 40, 42, operative part)
First of all, Article 5(1) of Directive 2004/25 lays down the principle of the mandatory bid for the acquisition of the holdings of securities in a given company. It provides that where a natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in concert with him/her, holds securities of a company falling within the scope of application of thats directive which, added to any existing holdings of those securities of his/hers and the holdings of those securities of persons acting in concert with him/her, directly or indirectly give him/her a specified percentage of voting rights in that company, giving him/her control of that company, Member States must ensure that such a person is required to make a bid as a means of protecting the minority shareholders of that company, and that bid is to be addressed to all the holders of those securities for all their holdings at the equitable price as defined in Article 5(4) of the directive.

Next, also in order to ensure the protection of minority shareholders in the company subject to the takeover bid, in accordance with the first paragraph of Article 5(4) of Directive 2004/25 the equitable price is regarded as, primarily, the highest price paid for the same securities by the offeror, or by persons acting in concert with him/her, during a period determined by the Member States of no less than six months and no more than twelve months before the bid referred to in Article 5(1) of that directive.

Finally, the second paragraph of Article 5(4) of Directive 2004/25 provides that, subject to compliance with the principles set out in Article 3(1), the Member States may authorise their supervisory authorities, referred to in Article 4 of the directive, to adjust the equitable price in certain circumstances and according to specified criteria. To that end, Member States may, first, draw up a list of circumstances in which the highest price may be adjusted either upwards or downwards, and, second, determine the criteria to be applied in such cases, it being specified that those circumstances and criteria must be clearly determined. Examples of such circumstances and such criteria are mentioned in the second paragraph of Article 5(4) of the directive.

It is clear from those provisions that, where a Member State decides to authorise the supervisory authority to adjust the equitable price, defined in the first paragraph of Article 5(4) of Directive 2004/25, in order to set the price at which a takeover bid must take place, that power of adjustment must be exercised in compliance with the guiding principles referred to in Article 3(1) of that directive.

In that regard, when it fixes, in accordance with the second paragraph of Article 5(4) of the directive, the determined circumstances in which the said power of adjustment may be exercised, the Member State must take account in particular of the principle of protection of the interests of holders of the securities of the company of which control was taken by a natural or legal person, laid down in Article 3(1).

(see paras 29-33)
Article 7(1) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that the concept of ‘distance’ relates, in the case of air routes with connecting flights, only to the distance calculated between the first point of departure and the final destination on the basis of the ‘great circle’ method, regardless of the distance actually flown.

Therefore, when determining the amount of compensation, account should be taken of the distance between the first point of departure and the final destination, excluding any connecting flights.

In particular, the Court stated that the basis of their compensation was the inconvenience of having suffered a loss of time of three hours or more in relation to the original planning of that transport, as established, including in the case of connecting flights, upon arrival at their final destination (see to that effect, judgment of 26 February 2013, Folkerts, C‑11/11, EU:C:2013:106, paragraph 35). In view of the nature of the inconvenience thus suffered, any differences in the distance actually travelled do not in themselves influence the extent of such an inconvenience.

(see paras 29, 31-33, operative part)
The conditions that a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources. When a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, that assessment is made by applying, in principle, the private creditor test.

Accordingly, the private creditor test is not an exception which applies only if a Member State so requests, when all the constituent elements of State aid incompatible with the common market, as laid down in Article 107(1) TFEU, exist. Where it is applicable, that test is among the factors which the Commission is required to take into account for the purposes of establishing the existence of such aid. It follows that nothing prevents the recipient of the aid from invoking the applicability of that test and, if the recipient does invoke that test, it falls to the Commission to assess whether the test needs to be applied and, if so, to assess its application. In that respect, it is for the Commission to ask the Member State concerned to provide it with all the relevant information enabling it to determine whether the conditions for applying that test are satisfied.

The starting point for determining whether the private operator test is to be applied must be the economic nature of the Member State’s action. In that context, the private creditor test is intended to determine whether the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources. It follows from this that the assessment which the Commission is required, where appropriate, to carry out cannot be limited to just the options that the competent public authority actually took into consideration, but must necessarily cover all the options that a private creditor would reasonably have envisaged in such a situation.

(see paras 21-24, 26-29)
Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding national legislation pursuant to which the compulsory removal from the value added tax (VAT) register of a company whose dissolution has been ordered by court decision results in the obligation to calculate the input VAT due or paid on the available assets on the date of the dissolution of that company and to pay it to the State, on condition that that company no longer carries out economic transactions as from its dissolution.

When a company ceases to carry out a taxable economic activity, except in the cases of transfer to a company of a totality of assets or part thereof referred to in Article 19 of the VAT Directive, that directive provides expressly in Article 18(c) thereof that the retention of goods by a taxable person or by his successors may be treated as a supply of goods for consideration, where those goods have given rise to a deduction.

The Court has made clear that Article 18(c) concerns the cessation of the taxable economic activity in general, without differentiating between the causes or the circumstances of that cessation, apart from the exception mentioned in the preceding paragraph, and that that provision consequently also covers the cessation of the taxable economic activity resulting from the removal of the taxable person from the VAT register (judgment of 8 May 2013, Marinov, C‑142/12, EU:C:2013:292, paragraphs 26 and 28).

As is clear from the actual wording of Article 18(c) of the VAT Directive and from the objective pursued by that provision, that analysis applies however only in the situation where the taxable economic activity of the person concerned has ceased and where that person no longer carries out taxable transactions.

(see paras 36, 37, 40, 48, operative part 1)
According to Article 64(1) of the Lugano II Convention, the latter does not prejudice the application by the Member States of Regulation No 44/2001, as well as any amendments thereof. Regulation No 44/2001 was repealed by Regulation No 1215/2012, which, with the exception of some of its provisions, is applicable from 10 January 2015. As is clear from Article 68(1) of Regulation No 4/2009, that regulation amends Regulation No 44/2001 by replacing the provisions of the latter applicable to matters relating to maintenance obligations.

Articles 27 and 30 of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008 must be interpreted as meaning that, in the case of lis pendens, the date on which a mandatory arbitration procedure was lodged before an arbitration authority under Swiss law is the date on which a ‘court’ is deemed to be seised.

According to the wording of Article 62 of the Lugano II Convention, the term ‘court’ includes any authorities designated by a State bound by that convention as having jurisdiction in the matters falling within its scope. It is clear from the Civil Procedure Code that, under Swiss law, a case is brought by lodging an application for arbitration, an action or, joint application for divorce. The arbitration procedure is laid down by law, is subject to the principle of audi alteram partem and is, in principle, obligatory. Failure to observe that obligation leads to the inadmissibility of any subsequent legal proceedings. Article 9(2) of the Swiss Federal Code on Private International Law states that, in order to determine when a court in Switzerland is seised, the date of the first act necessary to institute the action is to be decisive and that the initiation of arbitration proceedings is to suffice. Moreover, as the Swiss Government points out in its oral submissions, first, the arbitration authorities are subject to the guarantees laid down by the Civil Procedure Code relating to the disqualification of magistrates and, second, perform their duties with complete independence. It is clear from those provisions that, in the performance of the duties conferred on them by the CCP, the arbitration authorities may be treated as ‘courts’ within the meaning of Article 62 of the Lugano II Convention.

(see paras 53-56, 58, operative part)
Joined Cases C‑274/16, C‑447/16 and C‑448/16

flightright GmbH v Air Nostrum, Líneas Aéreas del Mediterráneo SA,

Roland Becker v Hainan Airlines Co. Ltd

and

Mohamed Barkan and Others v Air Nostrum, Líneas Aéreas del Mediterráneo SA

(Requests for a preliminary ruling from the Amtsgericht Düsseldorf and from the Bundesgerichtshof)

(Reference for a preliminary ruling — Area of Freedom, Security and Justice — Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Article 5(1) — Regulation (EU) No 1215/2012 — Article 7(1) — Concept of ‘matters relating to a contract’ — Contract for the provision of services — Connecting flight operated by different air carriers — Concept of ‘place of performance’ — Regulation (EC) No 261/2004 — Right of air passengers to compensation for denied boarding and for the long delay of a flight — Action for compensation brought against an operating air carrier not domiciled in the territory of a Member State or with which the passengers do not have contractual relations)

Summary — Judgment of the Court (Third Chamber), 7 March 2018

Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Article 5(1)(b), second indent—Inapplicability as regards defendants domiciled in a third State (Council Regulation No 44/2001, Art. 5(1)(b), second indent) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in matters relating to a contract—Concept—Claim brought by air passengers for compensation for the long delay of a connecting flight against an air carrier with which the passengers concerned do not have contractual relations—Included (Council Regulation No 44/2001, Art. 5(1)(a); European Parliament and Council Regulation No 261/2004) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Regulation No 1215/2012—Special jurisdiction—Jurisdiction in matters relating to a contract—Claim brought by air passengers for compensation for the long delay of a connecting flight—Action based on an irregularity which took place on the first flight, operated by the air carrier with which the passengers concerned do not have contractual relations—Place of performance of the contractual obligation in question—Place of arrival of the second flight (Council Regulation No 44/2001, Art. 5(1)(b), second indent; European Parliament and Council Regulation No 261/2004; European Parliament and Council Regulation No 1215/2012, Art. 7(1)(b), second indent)
Case C‑307/16

Stanisław Pieńkowski

v

Dyrektor Izby Skarbowej w Lublinie

(Request for a preliminary ruling from the Naczelny Sąd Administracyjny)

(Reference for a preliminary ruling — Directive 2006/112/EC — Value added tax (VAT) — Article 131 — Article 146(1)(b) — Article 147 — Exemptions on exportation — Article 273 — Legislation of a Member State making the benefit of the exemption subject to the attainment of a minimum level of turnover or the conclusion of an agreement with a person authorised to make VAT refunds to travellers)

Summary — Judgment of the Court (Fifth Chamber), 28 February 2018

Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemptions on exportation — Supplies of goods dispatched or transported outside the European Union — Legislation of a Member State making the benefit of the exemption subject to the attainment of a minimum level of turnover or the conclusion of an agreement with a person authorised to make VAT refunds to travellers — Not permissible

(Council Directive 2006/112, Arts 131, 146(1)(b), 147 and 273)

Article 131, Article 146(1)(b) and Articles 147 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation under which, in the context of a supply of goods for export to be carried in the personal luggage of travellers, the vendor, a taxable person, must have attained a minimum level of turnover in the preceding tax year, or have concluded an agreement with a person authorised to refund VAT to travellers, where the mere failure to meet those conditions results in the definitive loss for the vendor of the exemption in relation to that supply.

(see para. 40, operative part)
EU Law, in particular Article 51 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, the principles relating to the award of public contracts, including the principles of equal treatment and transparency referred to in Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Article 2 of Directive 2004/18, and the principle of proportionality must be interpreted as not precluding, in principle, national legislation establishing a mechanism of assistance in compiling the documentation, under which the contracting authority may in a procedure for the award of a public contract, invite any tenderer whose tender is vitiated by serious irregularities within the meaning of that regulation to rectify its tender, subject to the payment of a financial penalty, provided that the amount of that penalty is consistent with the principle of proportionality, which it is for the referring court to determine.

However, those provisions and principles must be interpreted as precluding national legislation establishing a mechanism of assistance in compiling the documentation under which the contracting authority may require a tenderer, on payment of a financial penalty, to remedy the lack of a document which, according to the express provisions in the contract documentation, must result in the exclusion of that tenderer, or to eliminate the irregularities affecting its tender such that any corrections or changes would amount to a new tender.

(see para. 65, operative part)
An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it.

It is for the applicant to prove its interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings. In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner its interest in the annulment of that act.

(see paras 44, 45)
Article 1(5) of Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions must be interpreted as meaning that, in the context of an arrangement between a co-branding partner or an agent, on the one hand, and a three party payment card scheme, on the other, it is not a prerequisite of that scheme being regarded as issuing card-based payment instruments with a co-branding partner or through an agent and therefore being considered to be a four party payment card scheme, within the meaning of Article 1(5) of Regulation 2015/751, that that co-branding partner or agent act as an issuer, within the meaning of Article 2(2) of that regulation.

That being the case, as argued in essence by the Commission, it is not inconceivable that some type of consideration or benefit might be identified as constituting an implicit interchange fee, within the meaning of recital 28 of Regulation 2015/751, even though the co-branding partner or agent with which the three party payment card scheme concludes an arrangement is not necessarily involved in the issuing activity of that scheme. It might, therefore, prove difficult to achieve the objectives of Regulation 2015/751, in particular that of Article 1(5) of that regulation, of ensuring a level playing field in the market, if situations where a co-branding partner or agent does not act as an issuer, within the meaning of Article 2(2) of that regulation, were, for that reason, to be exempted from the rules laid down in Articles 3 to 5 and Article 7 of Regulation 2015/751.

(see paras 71, 73, operative part 1)
Articles 49 and 54 TFEU must be interpreted as not precluding a tax levied on large retail establishments, such as that at issue in the main proceedings.

In the cases in the main proceedings, the legislation in question lays down a criterion relating to the display and sales area of the establishment which does not give rise to any direct discrimination. Nor does the evidence submitted to the Court show that that criterion disadvantages in most cases nationals from other Member States or companies whose seat is in another Member State.

(see paras 24, 25, 28, operative part 1)