ddrg/super_eurlex huggingface dataset:
8

Article 6 of the Habitats Directive states as follows: ‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative, or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites. 2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance should be significant in relation to the objectives of this Directive. 3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. 4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’
32

In those circumstances, the Court of Appeal decided to stay the proceedings and to refer to the Court the following question for a preliminary ruling: ‘Where: (a) the relevant provisions of national law provide for an exclusion for compulsory motor insurance in respect of persons for whom no fixed seats in a mechanically propelled vehicle have been provided, (b) the relevant insurance policy provides that cover will be confined to passengers travelling in fixed seating and this policy was, factually, an approved policy of insurance for the purposes of that national law at the time of the accident, (c) the relevant national provisions providing for such an exclusion from cover have already been adjudged to be contrary to EU law in an earlier decision of the Court [judgment of 19 April 2007, Farrell, C‑356/05, EU:C:2007:229] and, accordingly, required to be disapplied, and (d) the language of the national provisions is such that it does not permit of an interpretation conforming to the requirements of EU law, then, in litigation between private parties and a private insurance company concerning a motor accident involving a serious injury to a passenger in 1999 who was not travelling in a fixed seat, where, by consent of the parties, the national Court joined the private insurance company and the State as defendants, is the national court when disapplying the relevant provisions of national law also obliged to disapply the exclusion clause contained in the motor insurance policy or otherwise preclude an insurer from relying on the exclusion clause which was in force at the time so that the injured victim could then have recovered directly as against the insurance company on foot of that policy? Alternatively, would such a result amount in substance to a form of horizontal direct effect of a directive against a private party in a manner prohibited by EU law?’
55

In paragraph 138 of the judgment under appeal, the General Court considered, in the context of examining the appellant’s argument that the Board of Appeal should not have confined itself to general assertions concerning the goods or services as a whole, that the Board of Appeal’s finding that patterns applied to surfaces were characterised by infinite different designs was not limited to a specific sector. In paragraph 144 of that judgment, the General Court held that the images of footwear provided by the appellant were not capable of establishing that there was a significant departure by the sign at issue from the standards and usual practices of the footwear sector. In paragraph 145 of that judgment, it held that the few images of inner soles of shoes submitted by the appellant were not, in any event, capable of establishing that there was a significant departure by the sign at issue from the standards and usual practices of the sector concerned, in so far as all the images showed the upper part of the inner soles. For the other goods at issue, the General Court found that the appellant had not provided images to establish the standards and usual practices of the sectors concerned. Accordingly, the General Court held, in paragraph 147 of the judgment under appeal, that the appellant’s assertions were not sufficient to establish that there was a significant departure by the sign at issue from the standards and usual practices of the sectors concerned.
6

Article 9 of the Aarhus Convention, entitled ‘Access to justice’, states: ‘1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under Article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law. … 2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned: (a) having a sufficient interest or, alternatively, (b) maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 2(5), shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above. ... 3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. 4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this Article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible. 5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’
7

Article 78 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’) 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.’
4

Annex V to the Act of Accession of Croatia is entitled ‘List referred to in Article 18 of the Act of Accession: transitional measures’, and Chapter 2 of that annex, headed ‘Free movement of persons’, provides in paragraphs 1, 2, and 12: ‘(1) Article 45 and the first paragraph of Article 56 [TFEU] shall fully apply only, in relation to the free movement of workers and the freedom to provide services involving temporary movement of workers as defined in Article 1 of Directive 96/71/EC, between Croatia on the one hand and each of the present Member States on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 13. (2) By derogation from Articles 1 to 6 of Regulation (EU) No 492/2011 [of the European Parliament and of the Council of 5 April 2011 on free movement for workers within the Union (OJ 2011 L 141, p. 1),] and until the end of the two year period following the date of accession, the present Member States will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Croatian nationals. The present Member States may continue to apply such measures until the end of the five year period following the date of accession. … (12) In order to address serious disturbances or the threat thereof in specific sensitive service sectors in the labour markets of Germany and Austria, which could arise in certain regions from the transnational provision of services, as defined in Article 1 of Directive 96/71/EC, and as long as they apply by virtue of the transnational provisions laid down above, national measures or those resulting from bilateral agreements on the free movement of Croatian workers, Germany and Austria may, after notifying the Commission, derogate from the first paragraph of Article 56 [TFEU] with a view to limiting in the context of the provision of services by companies established in Croatia, the temporary movement of workers whose right to take up work in Germany and Austria is subject to national measures. The list of service sectors which may be covered by this derogation is as follows: … – in Austria: Sector NACE (*) code, unless otherwise specified … Construction, including related branches 45.1 to 45.4, Activities listed in the Annex to Directive 96/71/EC […] (*) NACE: see 31990 R 3037: Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of economic activities in the European Community [(OJ 1990 L 293, p. 1)]. … The effect of the application of the present paragraph shall not result in conditions for the temporary movement of workers in the context of the transnational provision of services between Germany or Austria and Croatia which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.’
68

In the light of all of the foregoing, the answer to the questions referred for a preliminary ruling is that Article 146(1)(e) of the VAT Directive, on the one hand, and that provision in conjunction with Article 153 of that directive, on the other hand, must be interpreted as precluding a tax practice of a Member State under which the exemption from VAT for, respectively, the supply of transport services directly connected with the exportation of goods and the supply of services by intermediaries taking part in those supplies of transport services is subject to production by the taxable person of a customs export declaration in respect of the goods concerned. In that regard, it is for the competent authorities, for the purposes of granting those exemptions, to examine whether compliance with the condition relating to the exportation of the goods concerned can be inferred, with a sufficiently high degree of probability, from all of the information that may be available to those authorities. In that context, a TIR carnet which is certified by the customs offices of the third country of destination of the goods and which is produced by the taxable person constitutes evidence which, in principle, those authorities must duly take into account, unless they have specific reasons to doubt the authenticity or reliability of that document.
23

In those circumstances, the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy) decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling, which are worded identically in Cases C‑262/17, C‑263/17 and C‑273/17: ‘(1) Must the provisions of Directive [2009/72], in particular Article [2](5) and (6) and Article 28, be interpreted as meaning that a system created and operated by a private person, to which a limited number of generation and consumption units are connected, and which in turn is connected to the public network, necessarily constitutes an electricity network, and thus a “distribution system” for the purposes of that directive, without it being possible to exclude from that classification private systems with those characteristics created before the entry into force of that directive and set up originally for the purpose of self‑generation? (2) If the preceding question is answered in the affirmative, is the only possibility offered by the directive of taking advantage of the particular features of a private electricity network that of including it in the category of [closed distribution systems] referred to in Article 28 of the directive, or is the national legislature permitted to identify another category of distribution systems subject to a simplified set of rules which are different from those laid down in respect of [closed distribution systems]? (3) Independently of the previous questions, must the directive be interpreted as meaning that the obligation to connect third parties is applicable in all cases to the closed distribution systems referred to in Article 28? (4) Independently of the previous questions, does the classification of a private electricity network as a closed distribution system within the meaning of Article 28 of Directive [2009/72] permit the national legislature to allow, in favour of such a system, only the derogations from the general scheme for distribution systems expressly referred to in Articles 28 and 26(4) of the directive, or is the Member State — in the light of what is stated in [recitals] 29 and 30 of that directive — permitted or required to provide for other exceptions to the application of the general rules governing distribution systems in such a way as to ensure attainment of the objectives set out in those recitals? (5) In the event that the Court of Justice considers that the Member State may or must lay down rules which take account of the specific nature of closed distribution systems, do the provisions of Directive [2009/72] — in particular [recitals] 29 and 30 and Articles 15(7), 37(6)(b) and 26(4) — preclude national legislation, such as that under consideration in the present case, which subjects closed distribution systems to rules on dispatching and unbundling that are very similar to those imposed in respect of the public network and which, as regards general electricity charges, provides that payment of those charges should in part also be commensurate with the energy consumed within the closed system?’
7

Article 1, paragraph 653, of legge n. 190 — Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2015) (Law No 190 on provisions for the formation of the annual and multiannual State budget (Stability Act 2015)), 23 December 2014 (ordinary supplement to GURI No 300 of 29 December 2014, ‘Law No 190/2014’) provides: ‘In view of the expiry of the existing concession, in order to ensure the protection of the public interest in the activity of games [sales], management of the computerised ‘Lotto’ and other fixed-odds numerical games, for their sales, either by means of the concessionaire network … or remotely, is awarded as a concession, following a call for tender organized by the [ADM], in observance of European and national principles and rules, to a company qualified and experienced in the management or [games] sales, whose head office is located in one of the states of the European Economic Area, and which satisfies the criteria required in terms of moral, technical and economic reliability, chosen through an open, competitive and non-discriminatory selection procedure. The procedure provides for the following essential conditions: (a) duration of the nine-year concession, non-renewable; (b) selection based on the criterion of the most economically advantageous tender and, for the price component, the basic value of the contract, for tenders in excess of EUR 700 million; (c) payment of the price indicated in the tender of the first ranked tenderer in the amount of EUR 350 million at the time of the award in 2015, then EUR 250 million in 2016 at the time when the lottery service is taken over by the successful tenderer, and the balance in 2017, before 30 April of that year; (d) the successful tenderer’s ability to use the telecommunications network to supply services, direct or indirect, other than the sales of ‘Lotto’ [games] and other fixed-odd numerical games, provided that the [ADM] considers them compatible with the actual sales; (e) remuneration of the service for the concessionaire equal to 6 per cent of value of sales; (f) obligation to upgrade the network system and gaming terminals to the highest standards of quality that guarantee the highest degree of security and reliability in accordance with the investment plan that forms an integral part of the technical offer; (g) obligation on the tenderer to pay the State on an annual basis the sums which were not in the end invested according to the plan covered in point (f); (h) obligation for each competitor to make a payment, on their participation in the selection procedure, in favour of the [ADM] of an amount equal to the remuneration referred to in paragraph 654, with the right to its refund solely for unsuccessful tenderers for the concession.’
38

Furthermore, in order to give a useful answer to the referring court as to the determination of the person liable for VAT in the circumstances at issue in the main proceedings, it must be recalled that whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the State has failed to transpose the directive into national law within the time limit or has transposed it incorrectly (see, to that effect, judgments of 6 February 2014, E.ON Global Commodities, C‑323/12, EU:C:2014:53, paragraph 56 and the case-law cited, and of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 31 and the case-law cited). The Court has also held that a provision of EU law is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States (judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 32 and the case-law cited).
14

Article 24 of that directive, headed ‘Individual approvals’, provides: ‘1. Member States may exempt a particular vehicle, whether unique or not, from compliance with one or more of the provisions of this Directive or with one or more of the regulatory acts listed in Annex IV or Annex XI, provided that they impose alternative requirements. The provisions referred to in subparagraph 1 shall only be waived where a Member State has reasonable grounds for so doing. “Alternative requirements” means administrative provisions and technical requirements which aim to ensure a level of road safety and environmental protection, which is equivalent to the greatest extent practicable to the level provided for by the provisions of Annex IV or Annex XI, as appropriate. … 6. The validity of an individual approval shall be restricted to the territory of the Member State that granted the approval. Where an applicant wishes to sell, register or put into service in another Member State a vehicle which has been granted an individual approval, the Member State that granted the approval shall, on request, provide the applicant with a statement of the technical provisions against which the vehicle was approved. With regard to a vehicle which has been granted an individual approval by a Member State in accordance with the provisions of this Article, another Member State shall permit that vehicle to be sold, registered or to enter into service unless it has reasonable grounds to believe that the technical provisions against which the vehicle was approved are not equivalent to its own. 7. At the request of the manufacturer or of the owner of the vehicle, Member States shall grant an individual approval to a vehicle which complies with the provisions of this Directive and with the regulatory acts listed in Annex IV or Annex XI, as appropriate. In such a case, Member States shall accept the individual approval and shall permit the sale, registration and entry into service of the vehicle. …’