ddrg/super_eurlex huggingface dataset:
13

The scheme applicable to financial institutions under a moratorium, provided for by Law No 161/2002 on financial institutions, as amended by Law No 129/2008, was redrafted by Law No 44/2009 of 15 April 2009 (‘Law No 44/2009’). First, Law No 44/2009 repealed the provisions of Article 98 of Law No 161/2002 on financial institutions which prohibited proceedings from being brought and suspended proceedings pending against financial institutions under a moratorium. Second, it introduced a series of transitional provisions, including point II, which concerns financial institutions under a moratorium and reads as follows: ‘The special rules which follow shall apply to financial institutions benefitting from a debt moratorium at the time of the entry into force of [Law No 44/2009]. 1. The authorised moratorium shall continue despite the entry into force of this law and may be extended in accordance with the rules provided for under the second paragraph of Article 10 [of Law No 44/2009]. 2. As regards the moratorium, the provisions of the first paragraph of Article 101, and of Articles 102, 103 and 103a [of Chapter XII of Law No 161/2002 on financial institutions] shall apply as if the institution had been placed in winding-up proceedings by a judicial decision on the date on which [Law No 44/2009] entered into force; the winding-up proceedings shall however be known as “authorised debt moratorium” for as long as that authorisation remains valid [in accordance with what is provided at paragraph 1 above]. On the expiry of that authorisation, the undertaking shall automatically be regarded as being the subject of winding-up proceedings in accordance with general rules, without any specific judicial decision …’
4

Article 79 of the Wet gemeentelijke basisadministratie persoonsgegevens (Law on personal data held by local authorities) (Stb. 1994 No 494) (‘the Wet GBA’) provides: ‘1. The College shall inform anyone, on request, in writing, within four weeks and free of charge, whether personal data relating to that person are being processed in the database. In so far as such data are being processed, the person making the request regarding the municipal database must receive the written notification referred to in Article 78(3). … 2. The College shall provide anyone, on request, within four weeks and free of charge, with access to the data relating to that person contained in the database. … 3. The College shall provide anyone, on request, within four weeks, with a transcript (certified if required), in an intelligible form, of the personal data relating to him which are being processed in the database, and the available information on the source of such data in so far as the person making the request is not himself the source. …’
30

In those circumstances, the Diikitiko Protodikio Serron decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Do Articles 29 and 32 of [the Customs Code] apply to the determination of the customs value of imported goods where the contract is for processing or working of materials (exported to the country of processing without being placed under the customs procedure of outward processing) which is not at the level provided for in Article 24 of that [code] or which is otherwise insufficient to permit it to be held that the origin of the goods produced is the country where that processing or working was carried out? 2. If the answer to Question 1 is in the affirmative, is a distinction to be made where the import, on the basis of invoices and other documents held to be inaccurate, appears to have taken place under a contract of sale, but it is proven that the contract was for non-substantial processing of materials originating in the country of import in return for a specific fee, which can be determined, and that the declared customs value does not correspond to the real price payable or paid? 3. If the answer to Question 2 is in the negative, is a distinction to be made where there is also evidence of a practice that constitutes abuse of Community rules with the aim of enabling the interested party to derive an advantage? 4. If it is held that Articles 29 and 32 of [the Customs Code] can be applied to a case such as that described in Question 2, even when the objective circumstances and subjective factor of Question 3 coincide, what is considered to be the value of the component (in the present case sugar) which was incorporated into the imported goods and supplied at no cost to the importer, where the component in question, which could not be subject to a customs procedure of outward processing in accordance with Article 146(1) of the said Regulation, was not produced by him, but was acquired by him at the export price (which was lower than the price that applied on the internal market, since the product is subject to the refund system)?’
26

According to the referring court, it is common ground that the goods in question originated in Egypt. The only issue giving rise to uncertainty, according to that court, is whether the replacement movement certificate presented by Helm Düngemittel is capable of demonstrating the preferential origin of the portion of the goods imported into Germany, within the meaning of Protocol 4. The referring court takes the view that, under Article 20 of Protocol 4, a replacement movement certificate may be issued only where the goods are under the control of the customs office of the Member State which issued that certificate in order that the latter can verify whether those goods are identical to the goods described in the initial movement certificate. Since, however, the goods in question were already in free circulation at the time when the replacement movement certificate was issued, that was not the position in the present case. It is apparent, however, from the Court’s case-law that there are exceptions to the principle that preferential treatment can be granted only on presentation of valid proof of entitlement to such treatment. The referring court notes in this regard that, in the present case, the refusal to recognise the replacement certificate as constituting proof of origin is based on purely formal grounds.
5

Article 57 of Directive 78/660 states as follows: ‘Notwithstanding the provisions of [Directive 68/151] and [Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1)], a Member State need not apply the provisions of this Directive concerning the content, auditing and publication of annual accounts to companies governed by their national laws which are subsidiary undertakings, as defined in [Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1)], where the following conditions are fulfilled: (a) the parent undertaking must be subject to the laws of a Member State; (b) all shareholders or members of the subsidiary undertaking must have declared their agreement to the exemption from such obligation; this declaration must be made in respect of every financial year; (c) the parent undertaking must have declared that it guarantees the commitments entered into by the subsidiary undertaking; (d) the declarations referred to in (b) and (c) must be published by the subsidiary undertaking as laid down by the laws of the Member State in accordance with Article 3 of [Directive 68/151]; (e) the subsidiary undertaking must be included in the consolidated accounts drawn up by the parent undertaking in accordance with Directive [83/349]; (f) the above exemptions must be disclosed in the notes on the consolidated accounts drawn up by the parent undertaking; (g) the consolidated accounts referred to in (e), the consolidated annual report, and the report by the person responsible for auditing those accounts must be published for the subsidiary undertaking as laid down by the laws of the Member State in accordance with Article 3 of [Directive 68/151].’
14

In paragraphs 68 to 71 of the judgment under appeal, the General Court held as follows: ‘68 In the statement of objections, the Commission first of all pointed out that each group of undertakings concerned constituted a single undertaking and that the parent company of the group was in a position to exercise decisive influence over the conduct of its subsidiaries (point 324). Next, it stated that [Ballast Nedam] had participated in the cartel through the managing director of BNGW (point [235] of the statement of objections), then through BN Infra (point 339 of the statement of objections) and that, since [Ballast Nedam] controlled the entire capital of BN Infra (previously Ballast Nedam Wegenbouw BV and BNGW) through the intermediary entity Ballast Nedam Nederland, it presumed the exercise of decisive influence by the parent company over the conduct of those two subsidiaries. Lastly, the Commission adduced certain additional evidence for the existence of a unitary undertaking between [Ballast Nedam] and BN Infra (point 340 of the statement of objections). On the basis of all of that evidence, the Commission decided that the statement of objections should be addressed to BN Infra for its direct participation (and the participation of its predecessors) in the arrangements and to [Ballast Nedam] for its participation through the actual exercise of decisive influence over the conduct of BN Infra (point 342 of the statement of objections). 69 It is clear from all those considerations that, even though the wording used in the statement of objections could have been clearer, in particular as regards the relationship between BN Infra and BNGW, the Commission gave [Ballast Nedam] enough information for an understanding of the facts and circumstances used in support of its allegation that there had been an infringement, and specified unequivocally the legal persons on whom fines might be imposed. The mere fact that the Commission did not provide in the statement of objections any additional evidence for the existence of a unitary undertaking between [Ballast Nedam] and BNGW is not sufficient for it to be held not to have clearly indicated its intention to apply the presumption of the actual exercise of decisive influence by [Ballast Nedam] over the commercial conduct of BN Infra and BNGW. The Court accordingly takes the view that, on the basis of the information contained in the statement of objections, [Ballast Nedam] could not have been unaware that it was likely to be the addressee of a final Commission decision in its capacity as the parent company of BNGW. 70 Moreover, it must be observed that, in reply to that allegation made in the statement of objections, [Ballast Nedam] asserted … that BN Infra was not the successor of BNGW, but its 100% parent company and put forward arguments to show that BNGW was autonomous. 71 In those circumstances, the Court is of the view that [Ballast Nedam] was enabled, from the stage of the statement of objections, to understand the scope of the Commission’s objection regarding its participation in the infringement in its capacity as the parent company of BNGW and thus to conduct its defence properly.’
11

Article 204 of the Customs Code provides: ‘1. A customs debt on importation shall be incurred through: (a) non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed, or (b) non-compliance with a condition governing the placing of the goods under that procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods, in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question. 2. The customs debt shall be incurred either at the moment when the obligation whose non-fulfilment gives rise to the customs debt ceases to be met or at the moment when the goods are placed under the customs procedure concerned where it is established subsequently that a condition governing the placing of the goods under the said procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods was not in fact fulfilled. 3. The debtor shall be the person who is required, according to the circumstances, either to fulfil the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they have been placed, or to comply with the conditions governing the placing of the goods under that procedure.’
4

Article 2 of that directive provides: ‘1. For the purposes of this Directive, the term “energy products” shall apply to products: (a) falling within headings … 1507 to 1518 [of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16; ‘the CN’)], if these are intended for use as heating fuel or motor fuel; (b) falling within CN codes 2701, 2702 and 2704 to 2715; … 3. When intended for use, offered for sale or used as motor fuel or heating fuel, energy products other than those for which a level of taxation is specified in this Directive shall be taxed according to use, at the rate for the equivalent heating fuel or motor fuel. In addition to the taxable products listed in paragraph 1, any product intended for use, offered for sale or used as motor fuel, or as an additive or extender in motor fuels, shall be taxed at the rate for the equivalent motor fuel. In addition to the taxable products listed in paragraph 1, any other hydrocarbon, except for peat, intended for use, offered for sale or used for heating purposes shall be taxed at the rate for the equivalent energy product. 4. This Directive shall not apply to: (a) output taxation of heat and the taxation of products falling within CN codes 4401 and 4402; (b) the following uses of energy products and electricity: — energy products used for purposes other than as motor fuels or as heating fuels, — dual use of energy products — An energy product has a dual use when it is used both as heating fuel and for purposes other than as motor fuel and heating fuel. The use of energy products for chemical reduction and in electrolytic and metallurgical processes shall be regarded as dual use, — electricity used principally for the purposes of chemical reduction and in electrolytic and metallurgical processes, …’
The classification of a benefit in the general scheme of Regulation No 1408/71 is based essentially on the constituent elements of that benefit, in particular its purposes and the conditions on which it is granted, and not on the classification which is made by the national legislation. That pension for bringing up children does not require an accident at work or occupational disease or physical, mental or psychological injury hindering the pursuit of a professional activity by the person entitled. That pension for bringing up children presupposes the death of a former spouse. It is intended to compensate the right to receive a maintenance payment linked to responsibility for a dependent child, which ended with that death, and to prevent the surviving parent being constrained to work when that is not in the interests of the child.

On a proper construction of Article 77(1) of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008, a benefit such as the pension for bringing up children provided for in the legislation of a Member State, which is granted, in the event of death, to the former spouse of the deceased for the purposes of bringing up the children of that former spouse, cannot be treated in the same way as pensions for old age, invalidity or an accident at work or occupational disease within the meaning of Article 77 of Regulation No 1408/71.

On a proper construction of Article 67 of Regulation No 883/2004 on the coordination of social security systems, a benefit such as the pension for bringing up children provided for in the legislation of a Member State, which is granted, in the event of death, to the former spouse of the deceased for the purposes of bringing up the children of that former spouse is covered by the concept of pension within the meaning of Article 67.

On the basis of the new definition of the phrase ‘family benefits’, set out in Article 1(z) of Regulation No 883/2004, the distinction drawn in the context of the application of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008, between ‘family allowances’ and ‘family benefits’ is not intended to apply to situations falling within the ambit of Regulation No 883/2004, the latter seeking, in accordance with recital 34 thereof, to regulate all such family benefits since they have a very broad scope. The application of Article 67 of Regulation No 883/2004, unlike that of Article 77(1) of Regulation No 1408/71, is not limited to persons receiving certain categories of pensions or annuities. Accordingly, the definition of the word ‘pension’, set out in Article 1(w) of Regulation No 883/2004 includes, besides pensions linked to the previous pursuit of a salaried or non-salaried occupation, such as those that were referred to in Article 77(1) of Regulation No 1408/71, pensions paid in the event of death, like the pension for bringing up children at issue.

(see paras 48, 50, 51, 53, operative part 2)
Article 7 of Directive 2003/88 concerning certain aspects of the organisation of working time must be interpreted as precluding national legislation or practice, which provide that the entitlement to paid annual leave is lost without conferring entitlement to an allowance in lieu of leave outstanding, where the employment relationship is terminated by the death of the worker. Receipt of such an allowance is not to be dependent on a prior application by the interested party.

First, the entitlement to paid annual leave constitutes only one of two aspects of an essential principle of EU social law which also includes the entitlement to a payment when the employment relationship has ended. Second, receipt of financial compensation if the employment relationship has ended by reason of the worker’s death is essential to ensure the effectiveness of the entitlement to paid annual leave granted to the worker under Directive 2003/88. Indeed, if the obligation to pay annual leave were to cease with the end of the employment relationship because of the worker’s death, the consequence of that circumstance would be an unintended occurrence, beyond the control of both the worker and the employer, retroactively leading to a total loss of the entitlement to paid annual leave itself, as affirmed in Article 7 of Directive 2003/88.

Moreover, since Article 7(2) of Directive 2003/88 does not impose any condition for entitlement to an allowance in lieu other than that relating to the fact that the employment relationship has ended, receipt of such an allowance should not be made subject to the existence of a prior application for that purpose.

(see paras 20, 23-25, 27, 29, 30, operative part)
That review should not be confused with the review which may be undertaken, in the context of a subsequent action for annulment, of a measure adopted for the purposes of the implementation of the authorised enhanced cooperation.

In the context of an action for the annulment of a Council decision which has as its subject-matter the authorisation of enhanced cooperation on the basis of Article 329 TFEU, the Court’s review is related to the issue of whether that decision is valid as such in the light of, inter alia, the provisions, contained in Article 20 TEU and in Articles 326 TFEU to 334 TFEU, which define the substantive and procedural conditions relating to the granting of such authorisation.

The objective of Decision 2013/52 authorising enhanced cooperation in the area of financial transaction tax is to authorise 11 Member States to establish enhanced cooperation between themselves in the area of the establishment of a common system of financial transaction tax (FTT) with due regard to the relevant provisions of the Treaties.

First, the principles of taxation (‘the counterparty principle’ and ‘the issuance principle’) are not in any way constituent elements of that decision. Second, the contested decision contains no provision related to the issue of expenditure linked to the implementation of the enhanced cooperation authorised by that decision.

Further, and irrespective of whether the concept of ‘expenditure resulting from implementation of enhanced cooperation’, within the meaning of Article 332 TFEU, does or does not cover the costs of mutual assistance and administrative cooperation, the question of the possible effects of the future FTT on the administrative costs of the non-participating Member States cannot be examined for as long as the principles of taxation in respect of that tax have not been definitively established as part of the implementation of the enhanced cooperation authorised by the contested decision.

(see paras 36-38)
Articles 65, 90(1), 168(a), 185(1) and 193 of Directive 2006/112 on the common system of value added tax must be interpreted as requiring that the deduction of value added tax made by the recipient of an invoice drawn up with a view to a payment being made on account in relation to the supply of goods be adjusted where that supply is ultimately not made, even if the supplier remains liable for that tax and has not refunded the payment made on account.

So far as concerns the treatment of value added tax that has been improperly invoiced because there is no taxable transaction, it follows from the directive that the two traders involved are not necessarily treated identically. On the one hand, the issuer of an invoice is liable to pay the tax entered on that invoice even if there is no taxable transaction, in accordance with Article 203 of Directive 2006/112. On the other hand, exercise of the right of deduction by the recipient of an invoice is limited solely to tax corresponding to a transaction subject to value added tax, in accordance with Articles 63 and 167 of that directive.

In this connection, in such a situation, compliance with the principle of fiscal neutrality is ensured by the possibility, to be provided for by the Member States, of correcting any tax improperly invoiced where the issuer of the invoice shows that he acted in good faith or where he has, in sufficient time, wholly eliminated the risk of any loss of tax revenue.

Therefore, in those circumstances and without prejudice to the right of the taxable person to obtain from its supplier, through the appropriate national legal remedies, a refund of the payment made on account for a supply of goods which ultimately was not made, the fact that the value added tax payable by that supplier has not itself been adjusted does not affect the right of the tax authority to obtain repayment of the tax deducted by that taxable person on the basis of the payment made on account corresponding to such a supply.

(see paras 54, 55, 57, 58, operative part)