ddrg/super_eurlex huggingface dataset:
9

Article 35, entitled ‘Measures to combat tax fraud and tax evasion’, of decreto-legge n. 223 – Disposizioni urgenti per il rilancio economico e sociale, per il contenimento e la razionalizzazione della spesa pubblica, nonché interventi in materia di entrate e di contrasto all’evasione fiscale (Decree-Law No 223, laying down urgent provisions for economic and social recovery, for the limitation and rationalisation of public expenditure, and interventions in terms of tax revenue and the fight against tax evasion), of 4 July 2006 (GURI No 153 of 4 July 2006), in the version applicable to the disputes in the main proceedings (‘Decree-Law No 223/2006’) – adopted into law, after modification, by legge n. 248 – Conversione in legge, con modificazioni, del decreto-legge 4 luglio 2006, n. 223, recante disposizioni urgenti per il rilancio economico e sociale, per il contenimento e la razionalizzazione della spesa pubblica, nonché interventi in materia di entrate e di contrasto all’evasione fiscale (Law No 248 adopting into law, with modifications, Decree-Law No 223 of 4 July 2006, laying down urgent provisions for economic and social recovery, for the limitation and rationalisation of public expenditure, and interventions in terms of tax revenue and the fight against tax evasion) of 4 August 2006 (Ordinary supplement to GURI No 186 of 11 August 2006) – provides, in paragraph 10-ter thereof: ‘In respect of changes to the land register and entries relating to transfers of immovable property used for commercial purposes referred to in Article 10, first paragraph, point 8-ter of the decreto del presidente della Repubblica n. 633, (istituzione e disciplina dell’imposta sul valore aggiunto (Presidential Decree No 633, establishing and regulating value added tax)), of 26 October 1972 [(Ordinary Supplement to GURI No 292 of 11 November 1972)]), even if subject to value added tax, and involving closed-ended real estate funds governed by Article 37 of the Consolidated text of the legislative provisions on financial intermediation resulting from [Legislative Decree No 58/1998], as subsequently amended, and by Article 14-bis of Legge n. 86 – (Istituzione e disciplina dei fondi comuni di investimento immobiliare chiusi (Law No 86 establishing and regulating closed-ended real estate investment funds)), of 25 January 1994 [(Ordinary Supplement to GURI No 29 of 5 February 1994)]), or financial leasing companies, or banks and financial intermediaries …, regarding the purchase and lease with a purchase option of assets leased or to be leased only, the rates of mortgage registration tax and the land registry fee, as amended by paragraph 10-bis, shall be reduced by one half. The provision set out above shall apply from 1 October 2006.’
27

In that regard the Court has already held that for the purposes of such an assessment, the fact that the other parent is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of the child’s emotional ties to each of his or her parents and the risk of separation from the third-country national parent for that child’s equilibrium (see, to that effect, judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 70 and 71).
6

Article 27 of the framework decision is worded as follows: ‘1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. 3. Paragraph 2 does not apply in the following cases: (a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it; … (g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4. 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request. …’
9

That Article L. 751-2 provides that departmental commercial planning committees (‘CDACs’) are composed, inter alia, as follows: ‘II. In departments other than Paris …: 3. Of three recognised experts representative of the economic fabric: one appointed by the chambre de commerce et d’industrie [(Chamber of Commerce and Industry)], one appointed by the chambre de métiers et de l’artisanat [(Chamber of Skilled Trades and Crafts)], and one appointed by the chambre d’agriculture [(Chamber of Agriculture)]. … The committee shall hear any person who could provide clarification for its decisions or opinions. Although they do not vote, the persons appointed by the Chamber of Commerce and Industry and the Chamber of Skilled Trades and Crafts shall present the situation of the economic fabric in the relevant catchment area and the impact of the project on that economic fabric. … III.- In Paris, … 3. Of two recognised experts representative of the economic fabric: one appointed by the Chamber of Commerce and Industry and one appointed by the Chamber of Skilled Trades and Crafts. In order to provide clarification for its decisions or opinions, the committee shall hear any person whose opinion is of interest. Although they do not vote, the experts appointed by the Chamber of Commerce and Industry and the Chamber of Skilled Trades and Crafts shall present the situation of the economic fabric in the relevant catchment area and the impact of the project on that economic fabric.’
5

Article 12 of that directive reads as follows: ‘1. Member States may regard as a taxable person anyone who carries out, on an occasional basis, a transaction relating to the activities referred to in the second subparagraph of Article 9(1) and in particular one of the following transactions: (a) the supply, before first occupation, of a building or parts of a building and of the land on which the building stands; (b) the supply of building land. 2. For the purposes of paragraph 1(a), “building” shall mean any structure fixed to or in the ground. Member States may lay down the detailed rules for applying the criterion referred to in paragraph 1(a) to conversions of buildings and may determine what is meant by “the land on which a building stands”. Member States may apply criteria other than that of first occupation, such as the period elapsing between the date of completion of the building and the date of first supply, or the period elapsing between the date of first occupation and the date of subsequent supply, provided that those periods do not exceed five years and two years respectively. 3. For the purposes of paragraph 1(b), “building land” shall mean any unimproved or improved land defined as such by the Member States.’
6

Article 28(1) and (2) of that directive provides: ‘1. When there is reasonable cause to consider that an applicant has implicitly withdrawn or abandoned his or her application, Member States shall ensure that the determining authority takes a decision either to discontinue the examination or, provided that the determining authority considers the application to be unfounded on the basis of an adequate examination of its substance in line with Article 4 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 (OJ 2011 L 337, p. 9)], to reject the application. Member States may assume that the applicant has implicitly withdrawn or abandoned his or her application for international protection in particular when it is ascertained that: (a) he or she has failed to respond to requests to provide information essential to his or her application in terms of Article 4 of [Directive 2011/95] or has not appeared for a personal interview as provided for in Articles 14 to 17 of this Directive, unless the applicant demonstrates within a reasonable time that his or her failure was due to circumstances beyond his or her control; (b) he or she has absconded or left without authorisation the place where he or she lived or was held, without contacting the competent authority within a reasonable time, or he or she has not within a reasonable time complied with reporting duties or other obligations to communicate, unless the applicant demonstrates that this was due to circumstances beyond his or her control. For the purposes of implementing these provisions, Member States may lay down time limits or guidelines. 2. Member States shall ensure that an applicant who reports again to the competent authority after a decision to discontinue as referred to in paragraph 1 of this Article is taken, is entitled to request that his or her case be reopened or to make a new application which shall not be subject to the procedure referred to in Articles 40 and 41. Member States may provide for a time limit of at least nine months after which the applicant’s case can no longer be reopened or the new application may be treated as a subsequent application and subject to the procedure referred to in Articles 40 and 41. Member States may provide that the applicant’s case may be reopened only once. Member States shall ensure that such a person is not removed contrary to the principle of non-refoulement. Member States may allow the determining authority to resume the examination at the stage where it was discontinued.’
19

In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) In the context of criminal proceedings that are being conducted in order to protect a monopoly system, must the national court or tribunal examine the applicable criminal penalty rule in the light of the freedom to provide services if it has previously examined the monopoly system in accordance with the guidance provided by the Court … and that examination has revealed that the monopoly system is justified? (2) If Question 1 is answered in the affirmative: (a) Must Article 56 TFEU be interpreted as precluding a national provision according to which, by way of sanction for making prohibited lotteries commercially available contrary to [the GSpG], a fine must be imposed per gaming machine, with no absolute limit on the total fine imposed? (b) Must Article 56 TFEU be interpreted as precluding a national provision which, by way of sanction for making prohibited lotteries commercially available contrary to [the GSpG], provides for the mandatory imposition of a minimum penalty of EUR 3000 per gaming machine? (c) Must Article 56 TFEU be interpreted as precluding a national provision which, by way of sanction for making prohibited lotteries commercially available contrary to [the GSpG], provides for a custodial sentence in the event of non-payment per gaming machine, with no absolute limit on the total number of custodial sentences imposed? (d) Must Article 56 TFEU be interpreted as precluding a national provision which, in the event of a penalty being imposed for making prohibited lotteries commercially available contrary to the [GSpG], requires the payment of a contribution to the costs of criminal proceedings amounting to 10% of the fines imposed? (3) If Question 1 is answered in the negative: (a) Must Article 49(3) of the [Charter] be interpreted as precluding a national provision according to which, by way of sanction for making prohibited lotteries commercially available contrary to the [GSpG], a fine must be imposed per gaming machine, with no absolute limit on the total fine imposed? (b) Must Article 49(3) of the Charter be interpreted as precluding a national provision which, by way of sanction for making prohibited lotteries commercially available contrary to the [GSpG], provides for the mandatory imposition of a minimum penalty of EUR 3000 per gaming machine? (c) Must Article 49(3) of the Charter be interpreted as precluding a national provision which, by way of sanction for making prohibited lotteries commercially available contrary to the [GSpG], provides for a custodial sentence in lieu of a fine per gaming machine, with no absolute limit on the total number of custodial sentences imposed? (d) Must Article 49(3) of the Charter be interpreted as precluding a national provision which, in the event of a penalty being imposed for making prohibited lotteries commercially available contrary to the [GSpG], requires the payment of a contribution to the costs of criminal proceedings amounting to 10% of the fines imposed?’
48

In the light of all the foregoing considerations, the answer to the first and second questions is that Article 2(1) of Directive 2003/88 must be interpreted as meaning that a period of stand-by time according to a stand-by system served by a retained firefighter, during which that worker, with the permission of his or her employer, carries out a professional activity on his or her own account but must, in the event of an emergency call, reach his or her assigned fire station within 10 minutes, does not constitute ‘working time’ within the meaning of that provision if it follows from an overall assessment of all the facts of the case, in particular from the scope and terms of that ability to carry out another professional activity and from the absence of obligation to participate in the entirety of the interventions effected from that fire station, that the constraints imposed on the said worker during that period are not of such a nature as to constrain objectively and very significantly the ability that he or she has freely to manage, during the said period, the time during which his or her services as a retained firefighter are not required.
30

Secondly, as regards the finding that there was no increase in the taxable person’s turnover, which shows that the services supplied to him or her as inputs were ineffective, it should be borne in mind at the outset that Article 168(a) of the VAT Directive presupposes that the goods and services acquired by the taxable person as inputs are used for the purposes of his or her taxed transactions. In particular, under the first paragraph of Article 176 of the VAT Directive, expenditure which is not strictly business expenditure, such as that on luxuries, amusements, or entertainment, is expressly excluded from the right to deduct. Thus, although the expenditure incurred by the taxable person as inputs must be of a business nature and although the goods or services acquired must be used for the purposes of the taxable person’s taxed transactions, neither Article 168(a) nor the first paragraph of Article 176 of the Directive make the exercise of the right to deduct subject to a criterion relating to an increase in the taxable person’s turnover or, more generally, to a criterion of economic profitability of the input transaction.
5

Recitals 7, 8, 21, 48 and 60 of Directive 2014/40 state: ‘(7) Legislative action at Union level is also necessary in order to implement the [FCTC] of May 2003, the provisions of which are binding on the Union and its Member States. The FCTC provisions on the regulation of the contents of tobacco products, the regulation of tobacco product disclosures, the packaging and labelling of tobacco products, advertising and illicit trade in tobacco products are particularly relevant. The Parties to the FCTC, including the Union and its Member States, adopted a set of guidelines for the implementation of FCTC provisions by consensus during various Conferences. (8) In accordance with Article 114(3) of the Treaty [on] the Functioning of the European Union (TFEU), a high level of health protection should be taken as a base for legislative proposals and, in particular, any new developments based on scientific facts should be taken into account. Tobacco products are not ordinary commodities and in view of the particularly harmful effects of tobacco on human health, health protection should be given high importance, in particular, to reduce smoking prevalence among young people. … (21) In line with the purposes of this Directive, namely to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of health protection, especially for young people, and in line with Council Recommendation 2003/54/EC [of 2 December 2002 on the prevention of smoking and on initiatives to improve tobacco control (OJ 2003 L 22, p. 31)], Member States should be encouraged to prevent sales of such products to children and adolescents, by adopting appropriate measures that lay down and enforce age limits. … (48) Moreover, this Directive does not harmonise the rules on smoke-free environments, or on domestic sales arrangements or domestic advertising, or brand stretching, nor does it introduce an age limit for electronic cigarettes or refill containers. In any case, the presentation and advertising of those products should not lead to the promotion of tobacco consumption or give rise to confusion with tobacco products. Member States are free to regulate such matters within the remit of their own jurisdiction and are encouraged to do so. … (60) Since the objectives of this Directive, namely to approximate the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products, cannot be sufficiently achieved by the Member States, but can rather, by reason of their scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives’.
20

In those circumstances the cour d’appel de Bruxelles (Court of Appeal, Brussels) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the non bis in idem principle, as guaranteed by Article 50 of the Charter, be interpreted as not precluding the competent administrative authority of a Member State from imposing a fine for infringing EU competition law, in a situation such as that of the present case, where the same legal person has already been finally acquitted of an offence for which an administrative fine had been imposed on it by the national postal regulator for an alleged infringement of postal legislation, on the basis of the same or similar facts, in so far as the criterion that the legal interest protected must be the same is not satisfied because the case at issue relates to two different infringements of different legislation applicable in two separate fields of law? (2) Must the non bis in idem principle, as guaranteed by Article 50 of the Charter, be interpreted as not precluding the competent administrative authority of a Member State from imposing a fine for infringing EU competition law, in a situation such as that of the present case, where the same legal person has already been finally acquitted of an offence for which an administrative fine had been imposed on it by the national postal regulator for an alleged infringement of postal legislation, on the basis of the same or similar facts, on the grounds that a limitation of the non bis in idem principle is justified by the fact that competition legislation pursues a complementary general interest objective, that is to say, protecting and maintaining a system of undistorted competition within the internal market, and does not go beyond what is appropriate and necessary in order to achieve the objective that such legislation legitimately pursues, and/or in order to protect the right and freedom to conduct business of those other operators under Article 16 of the Charter?’
26

It is in those circumstances that the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) If a company that carries out supplies of goods in the territory of a Member State other than that in which it has established its business is to be regarded as having, within the meaning of the second sentence of Article 44 of [the VAT Directive] and Article 11 of [Implementing Regulation No 282/2011], a fixed establishment in the State in which it carries out those supplies, is it necessary for the human and technical resources employed by that company in the territory of that Member State to belong to it, or is it sufficient for that company to have immediate and permanent access to such human and technical resources through another affiliated company which it controls since it holds the majority of its shares? (2) If a company that carries out supplies of goods in the territory of a Member State other than that in which it has established its business is to be regarded as having, within the meaning of the second sentence of Article 44 of [the VAT Directive] and Article 11 of [Implementing Regulation No 282/2011], a fixed establishment in the State in which it carries out those supplies, is it necessary for the presumed fixed establishment to be directly involved in decisions relating to the supply of the goods, or is it sufficient for that company to have, in the State in which it carries out the supply of goods, technical and human resources that are made available to it through contracts concluded with third party companies for marketing, regulatory, advertising, storage and representation activities which are capable of having a direct influence on the volume of sales? (3) On a proper construction of the second sentence of Article 44 of [the VAT Directive] and Article 11 of [Implementing Regulation No 282/2011], does the possibility for a taxable person to have immediate and permanent access to the technical and human resources of another affiliated taxable person controlled by it preclude that affiliated company from being regarded as a service provider for the fixed establishment thus created?’