ddrg/super_eurlex huggingface dataset:
Article 107(1) TFEU must be interpreted as meaning that a tax advantage, such as that at issue in the main proceedings, which consists in exempting from real property transfer tax the transfer of ownership of a property which occurred because of a restructuring procedure involving only companies of the same group, linked by a shareholding of at least 95% during a minimum, uninterrupted period of five years prior to that procedure and of five years thereafter, does not fulfil the condition relating to the selectivity of the advantage concerned, laid down in Article 107(1) TFEU.

In the context of tax measures, in order to classify a national tax measure as ‘selective’, the Commission must begin by identifying the ordinary or ‘normal’ tax system applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue is a derogation from that ordinary system, in so far as it differentiates between operators who, in the light of the objective pursued by that ordinary tax system, are in a comparable factual and legal situation (see, to that effect, judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 57).

It should, however, be borne in mind, in the second place, that, according to the settled case-law of the Court, the concept of ‘State aid’ does not cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned is able to demonstrate that that differentiation is justified since it flows from the nature or general structure of the system of which the measures form part (judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 58 and the case-law cited).

In its case-law, the Court has accepted that objectives inherent in the general tax system concerned could justify an a priori selective tax regime (see, to that effect, judgments of 29 April 2004, GIL Insurance and Others, C‑308/01, EU:C:2004:252, paragraphs 74 to 76, and of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 64 to 76).

In the present case, the objective related to the proper functioning of the general tax regime at issue in the main proceedings, seeking to avoid double and, hence, excessive taxation, may therefore give good grounds for restricting the tax exemption provided for by Paragraph 6a of the Grunderwerbsteuergesetz (the Law on real property transfer tax) (GrEStG) to the restructuring procedures carried out between companies linked by a shareholding of at least 95% during a minimum, uninterrupted period of five years before and five years after that procedure.

(see paras 36, 44, 49, 50, 53, operative part)
Article 316(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a taxable dealer may opt for the application of the margin scheme to the input supply of works of art which were supplied in the context of an exempt intra-Community supply, by the creator or his successors in title, when those persons do not fall within the categories of persons listed in Article 314 of that directive.

A taxable dealer may not opt for the application of the margin scheme laid down in Article 316(1)(b) of Directive 2006/112 to an input supply of works of art that were supplied to him in the context of an exempt intra-Community supply and, at the same time, claim a right to deduct input VAT in the situations in which such a right is precluded under Article 322(b) of that directive, if that latter provision has not been transposed into national law.

(see para. 50, operative part 2)
Case C‑215/17

Nova Kreditna Banka Maribor d.d.

v

Republika Slovenija

(Request for a preliminary ruling from the Vrhovno sodišče)

(Reference for a preliminary ruling — Approximation of laws — Re-use of public sector information — Directive 2003/98/CE — Article 1(2)(3), third indent — Prudential requirements applicable to credit institutions and investment firms — Regulation (UE) No 575/2013 — Information to be published by credit institutions and investment firms — Article 432(2) — Exceptions to public disclosure requirements — Information considered commercially sensitive or confidential — Applicability — Credit institutions predominantly owned by the State — National legislation laying down the public nature of certain commercial information held by those institutions)

Summary — Judgment of the Court (Fourth Chamber), 14 November 2018

Approximation of laws — Re-use of public sector information — Directive 2003/98 — Scope — Bodies governed by public law — Concept (European Parliament and Council Directive 2003/98, as amended by Directive 2013/37, recital 10 and Art. 2(2)(a) to (c))

Approximation of laws — Re-use of public sector information — Directive 2003/98 — Scope — Applicability of a request for access to information held by a private commercial bank providing banking services on the national banking market — Precluded (European Parliament and Council Directive 2003/98, as amended by Directive 2013/37, Art. 1)

Economic and monetary policy — Economic policy — Supervision of the EU financial sector — Prudential requirements applicable to credit institutions and investment firms — Information to be published by credit institutions — No individual right of access to information (European Parliament and Council Regulation No 575/2013, Art. 431(1) and (3), Art. 432(2) and Art. 433, first para.)

Fundamental rights — Charter of Fundamental Rights of the European Union — Scope — Implementation of EU law — Dispute confined within a single Member State — Absence of indications as to the existence of an interest on the part of operators in other Member States in making use of the fundamental freedoms in question — Not included (Charter of Fundamental Rights of the European Union, Art. 51(1))
Article 2(b) and (d) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) and Article 2(2) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that a natural person, such as the defendant in the main proceedings, who publishes simultaneously on a website a number of advertisements offering new and second-hand goods for sale can be classified as a ‘trader’, and such an activity can constitute a ‘commercial practice’, only if that person is acting for purposes relating to his trade, business, craft or profession, this being a matter for the national court to determine, in the light of all relevant circumstances of the individual case.

(see para. 45, operative part)
Article 10(g) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, as amended by Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015, must be interpreted to the effect that the notion of ‘employment contracts’, referred to in that provision, covers labour contracts such as those at issue in the main proceedings, that is to say, fixed-term, individual labour contracts which are concluded with persons selected on the basis of objective criteria, such as the duration of unemployment, previous experience and the number of minor dependent children they have.

The provisions of Directive 2014/24, as amended by Delegated Regulation 2015/2170, Articles 49 and 56 TFEU, the principles of equal treatment, transparency and proportionality, and Articles 16 and 52 of the Charter of Fundamental Rights of the European Union do not apply to a decision of a public authority to make use of employment contracts such as those at issue in the main proceedings in order to perform certain tasks falling within its public interest obligations.

Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted to the effect that a decision of a contracting authority to conclude employment contracts with natural persons for the provision of certain services without using a public procurement procedure in accordance with Directive 2014/24, as amended by Delegated Regulation 2015/2170, on the ground that, in its opinion, those contracts do not fall within the scope of that directive, may be challenged under that provision by an economic operator with an interest in participating in a public procurement procedure with the same purpose as those contracts and which considers that those contracts do fall within the scope of that directive.

An approach in which Directive 89/665 does not require judicial protection outside a formal award procedure, so that neither the contracting authority’s decision not to initiate such a procedure, nor the decision as to whether a public contract falls within the scope of the relevant EU rules, cannot be the subject of review, would have the effect of making the application of the relevant EU rules optional, at the option of every contracting authority, even though that application is mandatory where the conditions of application are satisfied (see, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 36 and 37).

(See paras 46, 47, operative part 3)
Article 29 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, which provides that refugees with a temporary right of residence in a Member State receive social security benefits which are less than those received by nationals of that Member State and refugees who have a permanent right of residence in that Member State.

It must be stated that the fact that Article 29(1) of that directive provides for the grant of ‘necessary’ social assistance to beneficiaries of international protection does not mean that the EU legislature intended to authorise Member States to grant refugees social security benefits which they consider sufficient to cover their needs, but which are less than the social security benefits paid to their nationals. It follows that the level of social security benefits paid to refugees by the Member State which granted that status, whether temporary or permanent, must be the same as that offered to nationals of that Member State (see, by analogy, judgment of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraphs 48 and 50). The principle that refugees should receive the same treatment as that accorded to nationals of the Member State cannot be called into question by Article 24 of Directive 2011/95 which allows Member States to issue a residence permit limited to three years.

That finding cannot be called into question by the argument that legislation such as that at issue in the main proceedings is compatible with Article 29(1) of Directive 2011/95 as refugees who have resided for a number of years in a Member State are in an objectively different situation from that of refugees who have recently arrived in that Member State, since the latter have a greater need for practical help.

(see paras 21, 25, 26, 30, 35, operative part 1)
Article 49 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, under which a non-resident taxable person, subject, in that Member State, to income tax in the framework of limited tax liability, cannot deduct from the income tax basis of assessment the amount of compulsory contributions paid into an occupational pension scheme in due proportion to the share of the income taxable in that Member State if directly linked to the activity which generated that income, whereas a resident taxable person, subject to income tax in the framework of unlimited tax liability, can deduct such contributions from the income tax basis of assessment to the extent laid down by national law.

Article 49 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which a non-resident taxable person, subject, in that Member State, to income tax in the framework of limited tax liability, cannot deduct from the income tax basis of assessment the amount of additional contributions paid into an occupational pension scheme or the amount of contributions paid into a private pension scheme, whereas a resident taxable person, subject to income tax in the framework of unlimited tax liability, can deduct such contributions from the income tax basis of assessment to the extent laid down by national law.

(see para. 62, operative part)
Judgment of the Court of Justice (Ninth Chamber) of 14 February 2019 — CCC — Consorzio Cooperative Costruzioni

(Case C‑710/17) ( 1 )

(Reference for a preliminary ruling — Public works contracts — Directive 2004/18/EC — Article 48(3) — Assessment and verification of the technical capacities of economic operators — National provision which cannot be regarded as a transposition of Directive 2004/18 — No direct and unconditional reference to EU law — No request based on the existence of a certain cross-border interest — Inadmissibility of the request for a preliminary ruling)

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Purely internal situations — Provision of national law transposing EU law also applicable outside the scope of that law — Interpretation requested with a view to achieving the uniform application of the provisions of EU law — Transposition not consistent with the solutions adopted by EU law — No direct and unconditional reference made to the relevant provisions — Inadmissibility

(Art. 267 TFEU; European Parliament and Council Directive 2004/18, Art. 48)

(see paras 22-26, 30)

Operative part

The request for a preliminary ruling made by the Consiglio di Stato (Council of State, Italy), by decision of 28 September 2017, is inadmissible.

( 1 ) OJ C 112, 26.3.2018.
18

Therefore, according to that court, it is necessary in the present case to apply German law in respect of the period preceding that change, unless that law is to be disregarded under Article 4(2) of the Hague Protocol. However, the application of that provision in a situation such as that at issue in the main proceedings is uncertain. That court refers, in this connection, to paragraph 63 of the Explanatory Report of Mr Bonomi on the Hague Protocol (text adopted by the Twenty-First Session of the Hague Conference on Private International Law) (‘the Bonomi Report’), according to which the subsidiary connection to the law of the forum is only of use if the maintenance proceedings are instituted in a State other than that of the creditor’s habitual residence, since otherwise the law of the creditor’s habitual residence and the law of the forum coincide. The referring court adds that, according to that report, the subsidiary application of the law of the forum under Article 4(2) can be envisaged only if the proceedings are initiated by the debtor, for instance before the competent authority of the State of his own habitual residence or if the authority seised is that of a State in which none of the parties concerned is resident.
23

It is in that context that the Conseil d’État (Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is Article 10(1) of Directive 2004/38 to be interpreted as requiring that the decision as to whether to recognise a right of residence must be taken and notified within a period of six months, or as permitting the decision to be taken within that period but notified subsequently? If such a decision may be notified subsequently, within what period must this be done? (2) Is Article [10(1)] of [Directive 2004/38], read in conjunction with Article 5 [of that directive], Article [5(4)] of [Directive 2003/86] and Articles 7, 20, 21 and 41 of the Charter of Fundamental Rights of the [European] Union, to be interpreted and applied as meaning that the decision adopted on that basis need only be taken within the period of six months which it prescribes, without there being any period applicable to notification or any impact whatsoever on the right of residence where notification occurs after expiry of that period? (3) For the purposes of guaranteeing the effectiveness of the right to residence of a member of the family of a Union citizen, would it be contrary to the principle of effectiveness for a national authority, following the annulment of a decision relating to such a right, once again to be allowed the full period of six months which had been available to it under Article [10(1)] of [Directive 2004/38]? If so, what further period is allowed to [that] national authority following the annulment of a decision by which it refused to recognise the right at issue? (4) Are Articles 5, 10 and 31 of Directive [2004/38], read in conjunction with Articles 8 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950], with Articles 7, 24, 41 and 47 of the [Charter of Fundamental Rights] and Article [21 TFEU], compatible with national case-law and provisions, such as Article 39/2(2), [Articles] 40, 40a, 42 and 43 of the Law of 15 December 1980, and Article 52(4) of the Royal Decree of 8 October 1981, which under a judgment delivered by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings annulling a decision refusing residence on the basis of those provisions interrupts, and does not suspend, the mandatory period of six months prescribed by Article 10 of Directive 2004/38, by Article 42 of the Law of 15 December 1980 and by Article 52 of the Royal Decree of 8 October 1981? (5) Does Directive [2004/38] require that, where the period of six months laid down by Article 10(1) of that directive is exceeded, some consequence must follow and, if so, what consequence? Does that directive require or permit the consequence of exceeding the period to be the automatic grant of the residence card sought, without any finding having been made that the applicant does in fact satisfy the conditions for the enjoyment of the right which he claims?’
11

Article 14 of the Convenio colectivo estatal de las empresas de seguridad (Collective State Agreement for Security Firms), BOE No 99, of 25 April 2013, p. 31668) (‘the collective agreement for security firms’) provides: ‘Having regard to the specific characteristics and circumstances of the business, which require the mobility of employees from one job to another, this provision seeks to ensure the stability of employment of employees in this sector, but not the stability of the job, on the basis of the following implementing legislation, which applies to security services, security systems, personal protection and rural personal bodyguard services: (A) Implementing legislation. Where an undertaking ceases to hold the contract for the services which it is engaged to provide to a public or private client as a result of termination, on any ground, of the contract for the provision of services, the new contractor is required in all cases to take over the contracts of employees assigned to that contract and workplace, regardless of the type of contract that those employees have or their employment category, provided that it is established that the employees assigned to the service have a genuine minimum length of service of seven months immediately prior to the date on which the service is taken over, a period which includes the permitted absences of the employee of the service taken over, which are established in Articles 45, 46 and 50 of this collective agreement, situations of temporary absence on grounds of ill-health and disciplinary suspensions, for any reason, with the express exception of unpaid leave provided for in Article 48, except for employees contracted for a specific task or service. … (B) Obligations of the undertakings which cease to provide the service and of the undertaking holding the contract. B.1 Undertaking which ceases to hold the contract: the undertaking which ceases to provide the service: … 3. must deal with and is solely and exclusively responsible for: (a) payments and fees due for work provided up to the time at which it ceases to hold the contract, and (b) settlement of all items, including paid holidays, since subrogation entails for the new contractor only the obligation to preserve the jobs of the employees affected.’
7

Article 2 of that directive is worded as follows: ‘1. Where an employer is contemplating collective redundancies, he shall begin consultations with the workers’ representatives in good time with a view to reaching an agreement. 2. These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant. … 3. To enable workers’ representatives to make constructive proposals, the employers shall in good time during the course of the consultations: (a) supply them with all relevant information and (b) in any event notify them in writing of: (i) the reasons for the projected redundancies; (ii) the number and categories of workers to be made redundant; (iii) the number and categories of workers normally employed; (iv) the period over which the projected redundancies are to be effected; (v) the criteria proposed for the selection of the workers to be made redundant in so far as national legislation and/or practice confers the power therefor upon the employer; (vi) the method for calculating any redundancy payments other than those arising out of national legislation and/or practice. … 4. The obligations laid down in paragraphs 1, 2 and 3 shall apply irrespective of whether the decision regarding collective redundancies is being taken by the employer or by an undertaking controlling the employer. In considering alleged breaches of the information, consultation and notification requirements laid down by this Directive, account shall not be taken of any defence on the part of the employer on the ground that the necessary information has not been provided to the employer by the undertaking which took the decision leading to collective redundancies.’