ddrg/super_eurlex huggingface dataset:
Judgment of the Court (Fourth Chamber) of 25 April 2013 — Commission v United Kingdom

(Case C-86/11)

‛Failure of a Member State to fulfil obligations — Taxation — Directive 2006/112/EC — Articles 9 and 11 — National legislation permitting the inclusion of non-taxable persons in a group of persons who may be regarded as a single taxable person for VAT purposes’

Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Concept — Possibility for the Member States to regard closely linked persons as a single taxable person — National legislation permitting the inclusion of non-taxable persons in a group of persons who may be regarded as a single taxable person — Failure to fulfil obligations — No such failure (Council Directive 2006/112, Art. 11) (see paras 32-37, 40)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 9 and 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation permitting the inclusion of non-taxable persons in a VAT group.

Operative part

The Court:

1. Dismisses the action;

2. Orders the European Commission to pay the costs;

3. Orders the Czech Republic, the Kingdom of Denmark, Ireland and the Republic of Finland to bear their own costs.

Judgment of the Court (Fourth Chamber) of 25 April 2013 — Commission v United Kingdom

(Case C-86/11)

‛Failure of a Member State to fulfil obligations — Taxation — Directive 2006/112/EC — Articles 9 and 11 — National legislation permitting the inclusion of non-taxable persons in a group of persons who may be regarded as a single taxable person for VAT purposes’

Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Concept — Possibility for the Member States to regard closely linked persons as a single taxable person — National legislation permitting the inclusion of non-taxable persons in a group of persons who may be regarded as a single taxable person — Failure to fulfil obligations — No such failure (Council Directive 2006/112, Art. 11) (see paras 32-37, 40)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 9 and 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation permitting the inclusion of non-taxable persons in a VAT group.

Operative part

The Court:

1. Dismisses the action;

2. Orders the European Commission to pay the costs;
Keywords

Subject of the case

Operative part



Keywords

Appeals — Grounds — Inadequate or contradictory grounds — Admissibility (see para. 63)

2. Appeals — Grounds — Necessity of some specific criticism of a point in the General Court’s reasoning (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) (see paras 64-66)

3. Actions for annulment — Jurisdiction of the Courts of the Union — Interpretation of the reasoning of an administrative measure — Limits (Arts 263 TFEU and 264 TFEU) (see paras 85-91)

4. Economic, social and territorial cohesion — Structural assistance — European Union financing — Reduction of financial assistance on the ground of irregularities — Irregularity — Definition — Charging to a project costs which were not incurred in its execution — Included (Council Regulation No 4253/88, Art. 24) (see para. 102)

Subject of the case

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 3 March 2011 in Case T-387/07 Portugal v Commission by which that court dismissed the application for annulment in part of Commission Decision C(2007) 3772 of 31 July 2007 reducing the final assistance granted by the European Regional Development Fund (ERDF) towards the global grant for local development in Portugal pursuant to Commission Decision C(95) 1769 of 28 July 1995.

Operative part

Operative part

The Court:

1. Sets aside the judgment of the General Court of the European Union of 3 March 2011 in Case T-387/07;

2. Annuls Commission Decision C(2007) 3772 of 31 July 2007 reducing the final assistance granted by the European Regional Development Fund (ERDF) towards the global grant for local development in Portugal pursuant to Commission Decision C(95) 1769 of 28 July 1995;

3. Orders the European Commission to pay the costs at first instance and on appeal.
Article 3(5) of Directive 2003/54 concerning common rules for the internal market in electricity, read in conjunction with Annex A thereto, and Article 3(3) of Directive 2003/55 concerning common rules for the internal market in natural gas, read in conjunction with Annex A thereto, are to be interpreted as precluding national legislation which determines the content of consumer contracts for the supply of electricity and gas covered by a universal supply obligation and allows the price of that supply to be adjusted, but which does not ensure that customers are to be given adequate notice, before that adjustment comes into effect, of the reasons and preconditions for the adjustment, and its scope.

Those provisions require Member States to ensure a high level of consumer protection in relation to the transparency of the contract terms and conditions. In addition to their right to terminate the supply contract, as provided for in point (b) of Annex A to each of Directives 2003/54 and 2003/55, customers must also be entitled to challenge adjustments to the price of supply. In order to be able to benefit fully and effectively from those rights and to take an informed decision as to whether to terminate the contract or to challenge the adjustment of the supply price, customers must be given adequate notice, before that adjustment takes effect, of the reasons and preconditions for the adjustment, and its scope.

(see paras 45-47, 53, operative part)
Judgment of the Court (Sixth Chamber) of 15 March 2012 —

Sibilio v Comune di Afragola



(Case C‑157/11)

Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70/EC — Clause 2 — Concept of ‘an employment contract or relationship defined by law, collective agreements or practice in force in each Member State’ — Scope of the framework agreement — Clause 4, point 1 — Principle of non-discrimination — Persons carrying out ‘work of social utility’ with public authorities — National rule excluding the existence of an employment relationship — National rule establishing a difference between the benefit paid to socially useful workers and the remuneration received by workers engaged under a contract of definite and/or indefinite duration by the same public authorities and carrying out the same activities

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — General or hypothetical questions (Art. 267 TFEU) (see paras 30, 31)

2. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Scope — Contract or employment relationship defined in law or national practice (Council Directive 1999/70, Annex, Clause 2) (see paras 45, 49-58, operative part)

Re:

Reference for a preliminary ruling — Tribunale di Napoli — Interpretation of clauses 2, 3, 4 and 5 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Principle of non‑discrimination — Unemployed persons registered in mobility lists or as job seekers engaged by public authorities for a fixed term carrying out work of social utility/work of public utility (known as socially useful workers/publicly useful workers) — National legislation establishing a difference in treatment in terms of pay between socially useful workers/publicly useful workers and workers engaged under a contract of indefinite duration by the same public authorities performing the same duties.

Operative part

Clause 2 of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation such as that at issue in the main proceedings, which provides that the relationship between socially useful workers and the public authorities for whom they carry out their activities does not fall within the scope of that framework agreement when, and which it is for the national court to determine, those workers are not covered by an employment relationship as defined by national law, collective agreements or practice in force, or the Member States and/or social partners have exercised the option granted to them under point 2 of that clause.
12

The facts of the dispute are set out as follows at paragraphs 1 to 9 of the judgment under appeal: ‘1. On 2 January 2006, Aurelio Muñoz Molina filed an application for registration of a Community trade mark at [OHIM] … 2. The trade mark in respect of which registration was sought is the word sign R10. 3. The Community trade mark application was published in Community Trade Marks Bulletin No 30/2006 of 24 July 2006. 4. On 24 October 2006, DL Sports & Marketing Ltda filed a notice of opposition under Article 42 of Regulation No 40/94 … to the registration of the trade mark applied for. That opposition was based on the non-registered mark or the sign used in the course of trade, R10, and was directed against all of the goods covered by the trade mark applied for. … 5. On 28 November 2006, the Opposition Division allowed DL Sports & Marketing [Ltda] a period of four months, until 29 March 2007, in order, inter alia, to prove the existence and validity of the earlier right relied on. On 29 March 2007, DL Sports & Marketing [Ltda] requested an extension of the deadline, which, on 8 June 2007, was extended until 9 August 2007. On 24 October 2007, the Opposition Division noted that no evidence had been submitted in support of the opposition. 6. By letter of 31 October 2007, the lawyers acting for [Nike], informed the Opposition Division that, by a contract dated 20 June 2007, DL Sports & Marketing [Ltda] had assigned to [Nike] — through Nike, Inc. — ownership of numerous trade marks and industrial property rights (“the transfer agreement”). [Nike’s] lawyers stated that they had been instructed by the new owner of the earlier right to pursue the opposition proceedings and, accordingly, asked to be entered as representatives in those proceedings. 7. On 19 February 2008, the Opposition Division rejected the opposition on the ground that DL Sports & Marketing [Ltda] had not substantiated, within the prescribed period, the existence of the earlier right relied on in support of the opposition (“the Opposition Division’s decision”). 8. On 28 March 2008, [Nike] appealed to OHIM pursuant to Articles 57 to 62 of Regulation No 40/94 … against the Opposition Division’s decision. 9. By [the contested decision], the First Board of Appeal of OHIM dismissed that appeal as inadmissible on the ground that [Nike] had not produced proof of its status as a party to the opposition proceedings and, consequently, that it was not entitled to appeal the Opposition Division’s decision. The Board of Appeal found that, at that stage of the proceedings, [Nike’s] lawyers had not claimed — much less produced proof — that the earlier right relied on in support of the opposition was among the trade marks transferred to [Nike]. It stated that, during the appeal also, the applicant had not been in a position to prove that it was the owner of the earlier right. The Board of Appeal therefore concluded that the transfer agreement merely showed that [Nike] had acquired certain Community trade marks, but not, specifically, the earlier right relied on.’
47

It makes no difference, in a situation such as that at issue in the main proceedings, whether the copy of the computer program was made available to the customer by the rightholder concerned by means of a download from the rightholder’s website or by means of a material medium such as a CD-ROM or DVD. Even if, in the latter case too, the rightholder formally separates the customer’s right to use the copy of the program supplied from the operation of transferring the copy of the program to the customer on a material medium, the operation of downloading from that medium a copy of the computer program and that of concluding a licence agreement remain inseparable from the point of view of the acquirer, for the reasons set out in paragraph 44 above. Since an acquirer who downloads a copy of the program concerned by means of a material medium such as a CD-ROM or DVD and concludes a licence agreement for that copy receives the right to use the copy for an unlimited period in return for payment of a fee, it must be considered that those two operations likewise involve, in the case of the making available of a copy of the computer program concerned by means of a material medium such as a CD-ROM or DVD, the transfer of the right of ownership of that copy.
13

First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) included Article 5, headed ‘Rights conferred by a trade mark’, which provided in paragraphs 1 and 2: ‘1. The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: (a) any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered; (b) any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association between the sign and the trade mark. 2. Any Member State may also provide that the proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with, or similar to, the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.’
6

Article 11 of the Netherlands Law on turnover tax (Wet op de omzetbelasting) of 28 June 1968 (Staatsblad 1968, No 329), provides that: ‘1. Subject to conditions to be laid down by public administrative regulation the following shall be exempt from tax: (a) the supply of immovable goods and the rights over such property, with the exception of: (1) the supply before or, at most, two years after, first occupation of buildings or parts of buildings and the land on which they stand as well as the supply of building land; (2) supplies, other than the supplies described in point 1, to persons who use the immovable property for purposes that give rise to a right to deduct in part or in full tax pursuant to Article 15, provided that the transferor and the transferee have jointly submitted a request to that effect to the tax inspector and abide by the conditions laid down by ministerial order; … 3. For the purposes of Paragraph 1(a), point 1: (a) A “building” shall be taken to mean any structure fixed to or in the ground; (b) “first occupation” is to be taken to mean occupation of a building after it has been transformed or renovated if the transformation or the renovation has created a finished property; (c) “the land on which they stand” is to be taken to mean any land commonly treated as belonging to the building or as being for its use. 4. For the purposes of applying point 1 of Paragraph 1(a), “building land” is to be taken to mean any land which has not been built on: (a) on which work is being or has been carried out; (b) which is being or has been improved with a view to exclusive use of the land; (c) in the vicinity of which improvements are being or have been made; or (d) for which a building permit has been granted; with a view to constructing buildings on the land.’
8

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, ... in cases other than those referred to [concerning the removal from customs supervision of goods liable to import duties] 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.’
8

A Memorandum issued by the Ministry of Finance, which constitutes an administrative instruction on the interpretation of legislation which is not binding on the courts, provides that: ‘Paragraph 3a(3) and (4)(6)(a) of the UStG is not be applied for the purpose of determining the place of supply in connection with asset management. Nor can direct reliance be placed on Article 56(1)(e) of [Directive 2006/112/EC], under which, in certain instances, the place of supply in the case of “banking, financial and insurance transactions” is to be determined by reference to the seat or place of business of the customer. “Banking, financial and insurance transactions” are terms of Community law and must be interpreted as such. It is true that [Directive 2006/112/EC] (and, until 31 December 2006, [Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1] [does] not define the specific meanings of those terms. However, Article 135(1)(a) to (f) of [Directive 2006/112/EC] … is unambiguous when it comes to how they are to be interpreted. Asset management is not referred to in those provisions. Nor does Article 56(1)(e) of [Directive 2006/112/EC] … indicate that that provision is also intended to cover other banking, financial and insurance transactions. “Asset management” as a single service is liable to tax. The exemption from tax provided for in Paragraph 4(8)(e) of the UStG is not applicable because asset management (portfolio management) is not one of the transactions eligible under those provisions. …’
Judgment of the Court (Eighth Chamber) of 6 September 2012 — Storck v OHIM



(Case C-96/11 P)

Appeal — Community trade mark — Absolute ground for refusal — Lack of distinctive character — Three-dimensional sign consisting of the shape of a chocolate mouse

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Three-dimensional mark consisting of the shape of the product — Three-dimensional mark incorporating a figurative element (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 33-35, 38, 39)

2. Community trade mark — Decisions of the Office — Observance of the rights of the defence — Scope of the principle — Annulment — Condition (Council Regulation No 40/94, Art. 73) (see paras 74, 80)

3. Community trade mark — Procedural provisions — Grounds for decisions — Objective (Council Regulation No 40/94, Art. 73) (see paras 86, 88)

Re:

Appeal brought against the judgment of the General Court (First Chamber) of 17 December 2010 in Case T-13/09 Storck v OHIM , by which the General Court dismissed the action for annulment brought against the decision of the Fourth Board of Appeal of OHIM of 12 November 2008, rejecting the appeal filed against the examiner’s decision refusing registration of a three-dimensional sign in the shape of a chocolate mouse as a Community trade mark for certain goods in Class 30 — Distinctive character of the mark.

Operative part

The Court:

1. Dismisses the appeal;
61

In those circumstances, and without it being necessary to examine the other criteria for assessment which the referring court mentions in its first question, the answer to the first and third questions is that Article 22(1)(a) of Regulation No 1698/2005, must be interpreted as meaning that the requirement laid down by that provision that the person concerned must be setting up for the first time on an agricultural holding as ‘head of the holding’ means, in a situation in which the person concerned sets up using a limited company, that he has effective and long-term control and management of the agricultural holding. While it is open to the Member States to lay down conditions from which it may be concluded that an aid applicant has the capacity of head of the holding, this is subject to the proviso that such conditions do not go beyond the framework that they aim to define and, therefore, in compliance with the objectives pursued by Regulation No 1698/2005, ensure that that applicant has effective and long-term control and management of the agricultural holding. National provisions such as those at issue in the main proceedings satisfy such requirements as they provide that where a young farmer sets up using a legal person, the grant of aid is conditional on the fact that he has the decision-making power in the company, which requires that he holds more than half of the shares in that company and that those shares represent more than half of the votes.
3

Part One of the CN consists of a number of preliminary provisions. In that part, in Section I containing general rules, subsection A, ‘General rules for the interpretation of the [CN]’, states: ‘Classification of goods in the [CN] shall be governed by the following principles: … 3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: (a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods; (b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable; (c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. …’