ddrg/super_eurlex huggingface dataset:
The conception of the lawyer’s role in the legal order of the European Union, which is derived from the legal traditions common to the Member States, and on which Article 19 of the Statute of the Court of Justice is based, is that of collaborating in the administration of justice and of being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs. The requirement of independence of a lawyer implies that there must be no employment relationship between the lawyer and his client. The concept of the independence of lawyers is determined not only positively, that is by reference to professional ethical obligations, but also negatively, that is to say, by the absence of an employment relationship

That reasoning applies with the same force in a situation in which the legal advisers are employed by an entity connected to the party they represent. Their relationship of employment with such an entity, even if it is formally separate from the party represented, is liable to affect their independence since the interests of that entity are largely the same as those of the party represented. There is therefore a risk that the professional opinion of those advisers would be, at least partly, influenced by their working environment.

(see paras 23-25)
Article 4(6) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States and Article 18 TFEU must be interpreted as meaning that, although a Member State may, in transposing Article 4(6), decide to limit the situations in which an executing judicial authority may refuse to surrender a person who falls within the scope of that provision, it cannot automatically and absolutely exclude from its scope the nationals of other Member States staying or resident in its territory irrespective of their connections with it.

It does not follow that the Member State of execution must necessarily refuse to execute the European arrest warrant issued against a person resident or staying in that Member State. However, in so far as such a person demonstrates a degree of integration in the society of that Member State comparable to that of a national thereof, the executing judicial authority must be able to assess whether there is a legitimate interest which would justify the sentence imposed in the issuing Member State being enforced within the territory of the executing Member State.

(see paras 51, 59, operative part)
The concept of ‘liquidation’ in Article 4(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Directive 2006/98, must be interpreted as meaning that the dissolution of a company in the context of a merger by acquisition cannot be considered to be such a liquidation.

It is true that Directive 90/435 does not define the concept of liquidation. However, the third indent of Article 2(a) of Directive 90/434 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, as amended by Directive 2006/98, defines a ‘merger’ as being an operation whereby a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities representing its capital. Directives 90/434 and 90/435 complement each other and that definition of the concept of ‘merger’ is also relevant for the interpretation of the concept of ‘liquidation’ within the meaning of Article 4(1) of Directive 90/435, so that that dissolution of a company cannot be considered to be a ‘liquidation’ within the meaning of that latter provision.

(see paras 32, 33, 35-37, operative part)
Article 4 of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as precluding legislation of a Member State which requires a proportionally greater contribution period from part-time workers, the vast majority of whom are women, than from full-time workers for the former to qualify, if appropriate, for a contributory retirement pension in an amount reduced in proportion to the part-time nature of their work.

That legislation works to the disadvantage of part-time workers, the majority of whom, according to statistics, are women, who have worked part-time for a long time, since, in practice, such legislation excludes those workers from any possibility of obtaining a retirement pension because of the method used to calculate the requisite contribution period.

In addition, that legislation is not justified by the need to ensure the financial equilibrium of the social security system in the event that the part-time workers concerned have paid contributions designed, in particular, to finance the pension system and that, if they were to receive a pension, the amount of that pension would be reduced in proportion to the time worked and the contributions paid.

(see paras 30-34, 38, operative part)
That mutual trust would be undermined if a court of a Member State could refuse to recognise a judgment by which a court of another Member State declined jurisdiction on the basis of a jurisdiction clause. To allow a court of a Member State to refuse to recognise such a judgment would run counter to the system introduced by Regulation No 44/2001, because such a refusal would be liable to compromise the effective operation of the rules set out in Chapter II of that regulation on the distribution of jurisdiction as between the courts of the Member States.

The need for such an interpretation of the concept of ‘judgment’, which must be given independently, is supported, on the one hand, by the objectives of Regulation No 44/2001, as set out in recitals 2 and 6 in the preamble thereto, which refer respectively to the simplification of the formalities for the recognition and enforcement of judgments and the free movement thereof, and, on the other hand, the principle of mutual trust between courts which, according to recitals 16 and 17, underpins the system introduced by Regulation No 44/2001.

Article 32 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it also covers a judgment by which the court of a Member State declines jurisdiction on the basis of a jurisdiction clause, irrespective of how that judgment is categorised under the law of another Member State.

Articles 32 and 33 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the court before which recognition is sought of a judgment by which a court of another Member State has declined jurisdiction on the basis of a jurisdiction clause is bound by the finding – made in the grounds of a judgment, which has since become final, declaring the action inadmissible – regarding the validity of that clause.

To allow a court of the Member State in which recognition is sought to disregard, as devoid of effect, the jurisdiction clause which a court of the Member State of origin has held to be valid would run counter to that prohibition of a review as to the merits, provided for under Article 36 of Regulation No 44/2001, particularly in circumstances where the latter might well have ruled, but for that clause, that it had jurisdiction. In the latter situation, such a finding on the part of the court of the Member State in which recognition is sought would call into question not only the intermediate finding made by the court of the Member State of origin as to the validity of the jurisdiction clause, but also the very decision of that court to decline its own jurisdiction.

Moreover, the notion of res judicata under European Union law, which is relevant for determining the effects produced by a judgment, does not apply only to the operative part of the judgment in question, but also to the ratio decidendi of that judgment, which provides the necessary underpinning for the operative part and is inseparable from it.

(see paras 38, 40, 43, operative part 2)
In order to counter fraud and any other illegal activities in the context of the protection of the financial interests of the European Union, Articles 15 to 17 and 19 to 22 of Decision 2008/969 concerning the early warning system for the use of authorising officers of the Commission and the executive agencies not only permit but also, and primarily, require the authorising officers concerned to adopt specific measures against the entity or the project concerned. Therefore, the impact of a warning about an entity in that system cannot be confined within the institution concerned and necessarily affects relations between the authorising officers concerned and that entity.

Moreover, even if the consequences of a W1 warning are less restrictive than those of W2 to W5 warnings, the fact remains that the reinforced monitoring measures which the authorising officer concerned is required to take against the entity concerned are not confined entirely to the institution internally, but are capable of having effects on the relations between that institution and the entity concerned. However, that does not imply that the external effects are automatically such as to bring about a distinct change in the legal situation of the entity affected. The Court must ascertain on a case by case basis whether there is such a change.

(see paras 37, 38, 42, 44)
In the context of competition law, any activity consisting in offering goods or services on a given market is an economic activity. An undertaking operating a regional airport is engaged in an economic activity where it offers airport services in return for remuneration gained from, inter alia, airport fees on the regional airport services market. Since the construction of a new runway cannot be dissociated from the operation of the airport infrastructure, it constitutes an economic activity falling within the scope of EU law on State aid.

The fact that an activity is not engaged in by private operators or that it is unprofitable are irrelevant criteria in regard to the classification of that activity as an economic activity. First, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed and, secondly, any activity consisting in offering goods and services on a given market is an economic activity. It follows from this that whether or not an activity is economic in nature does not depend on the private or public status of the entity engaged in it or the profitability of that activity.

(see paras 40, 43, 44, 50)
The grant by a public creditor of payment facilities to an undertaking in respect of a debt payable to it by that undertaking does not fall within the definition of State aid within the meaning of Article 107 TFEU where the recipient undertaking can, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources. That private creditor test, where applicable, is among the factors which the Commission is required to take into account for the purposes of establishing whether such aid exists. It is therefore for the Commission to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient undertaking would manifestly not have been able to obtain comparable facilities from such a private creditor. In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private creditor, in a situation as close as possible to that of the public creditor and seeking to recover sums due to it by a debtor experiencing difficulty in making the payments, must be regarded as being relevant.

In the case of an assessment of a measure for the writing-off of a tax debt of an undertaking subject to an arrangement procedure, the Commission must find that a normally prudent and diligent private creditor in a situation as close as possible to that of the local Tax Office must, for the purpose of obtaining payment of the sums due to it, make the choice, inter alia, between the proposed arrangement and the bankruptcy of the applicant undertaking. It follows that, in order to identify the more advantageous alternative between the two procedures, such a creditor must weigh up the advantages and disadvantages of each of those procedures. Since the arrangement and bankruptcy procedures postpone the recovery of the sums due and may therefore affect their value, this is clearly a factor which is liable to have a significant influence on the decision-making process of that private creditor.

Consequently, in its assessment of such measures, the Commission must take into account, having regard to the private creditor test, the available information relating to, inter alia, the duration of a bankruptcy procedure.

(see paras 70, 71, 73, 78-82, 86, 100)
Article 13B(d)(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that advisory services concerning investment in transferable securities, provided by a third party to an investment management company which is the manager of a special investment fund, fall within the concept of ‘management of special investment funds’ for the purposes of the exemption laid down in that provision, even if the third party has not acted on the basis of a mandate within the meaning of Article 5g of Directive 85/611 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) as amended by Directive 2001/107.

In order to be regarded as ‘exempt transactions’ for the purposes of Article 13B(d)(6) of the Sixth Directive, management services provided by a third-party manager must, viewed broadly, form a distinct whole and be specific to, and essential for, the management of special investment funds.

(see paras 21, 33, operative part)
Keywords

Summary



Keywords

1. International agreements — EC-Switzerland Agreement on the free movement of persons — Scope — Self-employed frontier workers — Concept — Differences as against the concept of self-employed person

(EC-Switzerland Agreement on the free movement of persons, Annex I, Arts 12(1) and 13(1))

2. International agreements — EC-Switzerland Agreement on the free movement of persons — Equal treatment — Tax advantages — Nationals of a Member State receiving all their taxable income there but resident in Swiss territory — Legislation of the Member State of taxation refusing those nationals a tax advantage on the sole ground of their residence in Switzerland — Not permissible

(EC-Switzerland Agreement on the free movement of persons, Art. 1(a) and Annex I, Arts 9(2), 13(1) and 15(2))

Summary

1. See the text of the decision.

(see paras 33-40)

2. Article 1(a) of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons and Articles 9(2), 13(1) and 15(2) of Annex I to that Agreement must be interpreted as precluding legislation of a Member State which refuses the benefit of joint taxation with the use of the ‘splitting’ method, provided for by that legislation, to spouses who are nationals of that State and subject to income tax in that State on their entire taxable income, on the sole ground that their residence is situated in the territory of the Swiss Confederation.

A self-employed frontier worker enjoys, in the host Member State, the same tax advantages as self-employed persons pursuing their activity in that country and residing there.

The taxpayer’s personal ability to pay tax, as a result of taking into account all his income and his personal and family circumstances, can indeed be assessed most easily in his State of residence, in which the major part of his income will normally be concentrated, and from that point of view the situations of residents and non-residents are as a general rule not comparable.

However, the position is different in a case in which the non-resident receives no significant income in his State of residence and obtains the major part of his taxable income from an activity pursued in another State, with the result that the State of residence is not in a position to grant him the advantages resulting from the taking into account of his personal and family circumstances. In that case, a non-resident taxpayer, whether employed or self-employed, who receives all or almost all of his income in the State in which he pursues his business activity is objectively in the same situation, as regards income tax, as a resident of that State who pursues comparable activities there. Those two categories of taxpayers are, in particular, in comparable situations with regard to the taking into account of their personal and family circumstances. Such taking into account is not possible in the State of residence of frontier workers where they do not receive income there.

(see paras 43, 46, 47, 52, operative part)
Article 22(2) of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as meaning that the entities referred to must forward the requested information to the financial intelligence units of the Member State in whose territory they are situated, that is to say, in the case of operations performed under the rules on the freedom to provide services, to the financial intelligence units of the Member State of origin.

Article 22(2) of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as not precluding legislation of a Member State which requires credit institutions to communicate the information required for the purpose of combating money laundering and terrorist financing directly to the financial intelligence units of that Member State where the institutions carry out their activities in that State under the freedom to provide services, to the extent that that legislation does not compromise the effectiveness of that directive and of Decision 2000/642 concerning arrangements for cooperation between financial intelligence units of the Member States in respect of exchanging information.

Such legislation must seek to strengthen, in compliance with EU law, the effectiveness of the fight against money laundering and terrorist financing. It cannot compromise the principles established by Directive 2005/60 concerning the reporting requirements on the part of entities subject to them, nor can it impair the effectiveness of existing forms of cooperation and exchange of information between the financial intelligence units, as provided for by Decision 2000/642, and cannot relieve credit institutions covered by Directive 2005/60 of their obligation to supply the required information to the financial intelligence units of the Member State in whose territory they are situated, in compliance with Article 22 of that directive. Likewise, such legislation does not infringe any provisions of Decision 2000/642 where its own financial intelligence unit is in no way exempted from its requirement to cooperate with the financial intelligence units of other Member States and, reciprocally, retains, unchanged, the right to require them to forward documents or information for the purpose of combating money laundering. Such legislation does not undermine the mechanism for cooperation between the financial intelligence units provided for by Decision 2000/642, but envisages, outside the context of the latter, a means for the financial intelligence unit of the Member State concerned to obtain directly information in the specific case of an activity carried out under the freedom to provide services in its territory.

(see paras 49-51, 54-56, 85, operative part)
The second paragraph of Article 6 of Regulation No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national must be interpreted as meaning that, in circumstances where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the ‘Member State responsible’.

In that regard, the expression, ‘the Member State … where the minor has lodged his or her application for asylum’, which appears in that provision, cannot be construed as meaning the first Member State where the minor has lodged his or her application for asylum. Since unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible, and to ensure that unaccompanied minors have prompt access to the procedures for determining refugee status. Consequently, although express mention of the best interest of the minor is made only in the first paragraph of Article 6 of that regulation, the effect of Article 24(2) of the Charter of Fundamental Rights, in conjunction with Article 51(1) thereof, is that the child’s best interests must also be a primary consideration in all decisions adopted by the Member States on the basis of the second paragraph of Article 6. It follows from this that unaccompanied minors who have lodged an asylum application in one Member State must not, as a rule, be transferred to another Member State with which they lodged the first asylum application.

(see paras 53, 55, 59, 61, 66, operative part)
In the context of the procedure provided for in Article 260(2) TFEU, the imposition of a lump sum payment must, in each individual case, depend on all the relevant factors pertaining both to the particular nature of the infringement established and to the conduct of the Member State involved. In that respect, that provision confers a wide discretion on the Court in deciding whether or not to impose such a penalty. Accordingly, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those in the communications of the Commission are not binding on the Court but contribute to ensuring that the action brought by the Commission is transparent, foreseeable and consistent with legal certainty.

Pursuant to Article 260 TFEU, the principle of imposing a lump sum is essentially based on the assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period after the judgment initially establishing it was delivered.

(see paras 40-42)