ddrg/super_eurlex huggingface dataset:
11

Article 8 of Law No 84/94 is worded as follows: ‘1. The President shall be appointed by decree of the Minister of Transport and Navigation, after obtaining the agreement of the region concerned, from a group of three highly-qualified experts, whose competence is established in the fields of transport and port economics … 2. The President shall represent the Port Authority and is appointed for a four-year term, which may be renewed only once … 3. The President of the Port Authority shall: (a) chair the Port Committee; (b) submit to the Port Committee the three-year operational plan for adoption; (c) submit to the Port Committee the port planning scheme for adoption; (d) submit to the Port Committee the draft decisions on the budget estimate and the amendments thereto, the balance sheet and the remuneration of the General Secretariat, as well as the implementation of the contractual agreements for the staff of the technical and operational secretariat; (e) propose to the Port Committee draft decisions on those concessions referred to in Article 6(5); (f) ensure coordination of the activities carried out in the port by the various public administrations, as well as coordination and control of the activities subject to licensing and concession, and of port services; ... (h) administer the State-owned maritime property in the area referred to in Article 6(7) on the basis of the applicable legislation, by exercising, after hearing the Port Committee, the functions defined in Articles 36 to 55 and 68 of the Navigation Code and the rules of implementation of those provisions; (i) exercise the powers attributed to the Port Authority under Articles 16 and 18 and to award, after hearing the Port Committee, the authorisations and concessions provided for in those articles, when those have a duration not exceeding four years in duration, and to determine the amount of the charges due; (l) promote the establishment of a union for the port workers ...; (m) ensure navigability in the port area …; for the purposes of excavation and maintenance works of the sea bed, he may organise, assuming the presidency thereof, an interdepartmental conference with the administrations concerned, to be concluded within a period of 60 days; in case of immediate necessity and urgency, he may adopt binding decisions …; (n) make proposals concerning the delimitation of free zones, after hearing the Maritime Authority and the local authorities concerned; (n-bis) exercise any other powers which this law does not entrust to the other governance bodies of the Port Authority.’
(c)

other smoking tobaccos: 20% of the retail selling price inclusive of all taxes, or EUR 22 per kilogram. From 1 January 2013, the overall excise duty on fine-cut smoking tobacco intended for the rolling of cigarettes shall represent at least 43% of the weighted average retail selling price of fine-cut smoking tobacco intended for the rolling of cigarettes released for consumption, or at least EUR 47 per kilogram. From 1 January 2015, the overall excise duty on fine-cut smoking tobacco intended for the rolling of cigarettes shall represent at least 46% of the weighted average retail selling price of fine-cut smoking tobacco intended for the rolling of cigarettes released for consumption, or at least EUR 54 per kilogram. From 1 January 2018, the overall excise duty on fine-cut smoking tobacco intended for the rolling of cigarettes shall represent at least 48% of the weighted average retail selling price of fine-cut smoking tobacco intended for the rolling of cigarettes released for consumption, or at least EUR 60 per kilogram. From 1 January 2020, the overall excise duty on fine-cut smoking tobacco intended for the rolling of cigarettes shall represent at least 50% of the weighted average retail selling price of fine-cut smoking tobacco intended for the rolling of cigarettes released for consumption, or at least EUR 60 per kilogram. The weighted average retail selling price shall be calculated by reference to the total value of fine-cut smoking tobacco intended for the rolling of cigarettes released for consumption, based on retail selling price including all taxes, divided by the total quantity of fine-cut smoking tobacco intended for the rolling of cigarettes released for consumption. It shall be determined by 1 March at the latest of each year on the basis of data relating to all such releases for consumption made in the preceding calendar year.’
13

In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Do the rights enshrined in Article 47 of the Charter … mean that if customs authorities, in the context of the submission of evidence as to the origin of imported goods, intend to rely on the results of an examination carried out by a third party with regard to which that third party does not disclose further information either to the customs authorities or to the declarant, as a result of which it is made difficult or impossible for the defence to verify or disprove the correctness of the conclusion arrived at and the court is hampered in its task of evaluating the results of the examination, those examination results may not be taken into account by the court? Does it make any difference to the answer to that question that that third party withholds the information concerned from the customs authorities and from the party concerned on the ground, not further explained, that “law enforcement sensitive information” is involved? (2) Do the rights enshrined in Article 47 of the Charter mean that when the customs authorities cannot disclose further information in respect of the examination carried out which forms the basis for their position that the goods have a specific origin — the results of which are challenged by reasoned submissions — the customs authorities — in so far as can reasonably be expected of them — must cooperate with the party concerned in connection with the latter’s request that it conduct, at its own expense, an inspection and/or sampling in the country of origin claimed by that party? (3) Does it make a difference to the answer to the first and second questions that, following the notification of the customs duties payable, portions of the samples of the goods, to which the party concerned could have obtained access with a view to having an examination carried out by another laboratory, were still available for a limited period, even though the result of such an examination would have had no bearing on the fact that the results obtained by the laboratory used by the customs authorities could not be verified, with the result that even in that case it would have been impossible for the court — if that other laboratory were to find in favour of the origin claimed by the party concerned — to compare the results of the two laboratories with respect to their reliability? If so, must the customs authorities point out to the party concerned that portions of the samples of the goods are still available and that it may request those samples for purposes of such an examination?’
5

Article 45 of Directive 2004/18, headed ‘Personal situation of the candidate or tenderer’, provides in paragraphs 1 and 3 thereof as follows: ‘1. Any candidate or tenderer who has been the subject of a conviction by final judgment of which the contracting authority is aware for one or more of the reasons listed below shall be excluded from participation in a public contract: … Member States shall specify, in accordance with their national law and having regard to Community law, the implementing conditions for this paragraph. They may provide for a derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest. For the purposes of this paragraph, the contracting authorities shall, where appropriate, ask candidates or tenderers to supply the documents referred to in paragraph 3 and may, where they have doubts concerning the personal situation of such candidates or tenderers, also apply to the competent authorities to obtain any information they consider necessary on the personal situation of the candidates or tenderers concerned. Where the information concerns a candidate or tenderer established in a State other than that of the contracting authority, the contracting authority may seek the cooperation of the competent authorities. Having regard for the national laws of the Member State where the candidates or tenderers are established, such requests shall relate to legal and/or natural persons, including, if appropriate, company directors and any person having powers of representation, decision or control in respect of the candidate or tenderer. … 3. Contracting authorities shall accept the following as sufficient evidence that none of the cases specified in paragraphs 1 or 2(a), (b), (c), (e) or (f) applies to the economic operator: (a) as regards paragraph 1 and paragraph 2(a), (b) and (c), the production of an extract from the “judicial record” or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or the country whence that person comes, showing that these requirements have been met; … Where the country in question does not issue such documents or certificates, or where these do not cover all the cases specified in paragraphs 1 and 2(a), (b) and (c), they may be replaced by a declaration on oath or, in Member States where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a competent judicial or administrative authority, a notary or a competent professional or trade body, in the country of origin or in the country whence that person comes.’
14

Article 1 of Commission Regulation (EEC) No 2238/93 of 26 July 1993 on the accompanying documents for the carriage of wine products and the relevant records to be kept (OJ 1993 L 200, p. 10) provided: ‘(1) This Regulation lays down detailed rules for the application of Article 71 of Regulation (EEC) No 822/87 with regard to accompanying documents for the carriage of wine products without prejudice to the application of [Council] Directive 92/12/EEC [on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1)]. It lays down: (a) rules for the certification of origin for quality wines produced in specified regions and the certification of provenance for table wines entitled to a geographical ascription in the documents accompanying the carriage of these wines which are also issued pursuant to Community provisions based on Directive 92/12 …; (b) rules for the issue of documents accompanying the carriage of the wine products listed in Article 1(2) of Regulation (EEC) No 822/87: — within a Member State, where such consignments are not accompanied by a document prescribed by Community rules based on Directive 92/12 …; — exportation to a third country; — in intra-Community trade when: — carriage is effected by a small producer exempted by the Member State in which the carriage originates from the need to complete a simplified accompanying document, or — a wine product not subject to excise duty is transported; (c) additional provisions for completing: — the accompanying administrative document or the commercial document used in its place, — the simplified accompanying document or the commercial document used in its place, in the case of consignments of the wine products referred to in Article 1(2) of Regulation (EEC) No 822/87. (2) This Regulation also lays down rules on the keeping of records of entry and withdrawal by persons holding wine products in the course of their occupation.’
15

In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Should the national authorities and courts, on the basis of the law of the European Union, refuse to apply the exemption pertaining to an intra-Community supply, the right to the deduction of VAT in respect of the purchase of goods which, after the purchase, were dispatched to another Member State, or the refund of VAT pursuant to the application of the second sentence of Article 28b(A)(2) of the Sixth Directive, when, on the basis of objective data, it has been established that there has been VAT evasion in respect of the goods concerned, and that the taxable person knew, or should have known, that it was participating therein, if national law does not make provision for refusal of the exemption, the deduction or the refund under those circumstances? (2) If Question 1 is answered in the affirmative, should the aforementioned exemption, deduction or refund also be refused if the VAT evasion occurred in another Member State (other than the Member State from which the goods were dispatched) and the taxable person was, or should have been, aware of the VAT evasion, while the taxable person in the Member State from which the goods were dispatched has met all the (formal) conditions which national statutory provisions impose on the exemption, the deduction or the refund, and it has always provided the tax authorities in that Member State with all the required information in respect of the goods, the dispatch and the persons acquiring the goods in the Member State of arrival of the goods? (3) If Question 1 is answered in the negative, what should be understood by “subject to” [tax] in (the final part of) the first sentence of Article 28b(A)(2): the declaration in the statutorily prescribed VAT returns of the VAT payable in respect of intra-Community acquisitions in the Member State of arrival, or — in the absence of such a declaration — also the measures adopted by the tax authorities of the Member State of arrival to regularise the absence of that declaration? When answering that question, is it significant whether the transaction concerned forms part of a chain of transactions aimed at VAT evasion in the country of arrival and the taxable person was aware, or should have been aware, of it?’
3

The 10th, 12th, 14th, 16th and 18th recitals in the preamble to Directive 93/13 state: ‘Whereas more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; whereas those rules should apply to all contracts concluded between sellers or suppliers and consumers; whereas as a result inter alia contracts relating to employment, contracts relating to succession rights, contracts relating to rights under family law and contracts relating to the incorporation and organisation of companies or partnership agreements must be excluded from this Directive; … Whereas … only contractual terms which have not been individually negotiated are covered by this Directive … … Whereas … this Directive also applies to trades, business or professions of a public nature; … Whereas the assessment, according to the general criteria chosen, of the unfair character of terms, in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users, must be supplemented by a means of making an overall evaluation of the different interests involved; whereas this constitutes the requirement of good faith; whereas, in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account; … Whereas the nature of goods or services should have an influence on assessing the unfairness of contractual terms’.
6

Pursuant to the explanatory note relating to the general rule for the interpretation of the HS 3: ‘... Rule 3(a) ... (IV) It is not practicable to lay down hard and fast rules by which to determine whether one heading more specifically describes the goods than another, but in general it may be said that: (a) A description by name is more specific than a description by class (e.g., shavers and hair clippers, with self-contained electric motor, are classified in heading 85.10 and not in heading 84.67 as tools for working in the hand with self-contained electric motor or in heading 85.09 as electro-mechanical domestic appliances with self-contained electric motor). (b) If the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete. Examples of the latter category of goods are: (1) Tufted textile carpets, identifiable for use in motor cars, which are to be classified not as accessories of motor cars in heading 87.08 but in heading 57.03, where they are more specifically described as carpets. (2) Unframed safety glass consisting of toughened or laminated glass, shaped and identifiable for use in aeroplanes, which is to be classified not in heading 88.03 as parts of goods of heading 88.01 or 88.02 but in heading 70.07, where it is more specifically described as safety glass. (V) 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 than the others. In such cases, the classification of the goods shall be determined by Rule 3(b) or 3(c). Rule 3(b) (VI) This second method relates only to: (i) Mixtures; (ii) Composite goods consisting of different materials. (iii) Composite goods consisting of different components. (iv) Goods put up in sets for retail sales. It applies only if Rule 3(a) fails. (VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. ...’
3

Recitals 1, 7, 20, 23 and 25 of Directive 2001/29 state: ‘(1) The [EC] Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives. … (7) The Community legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. To that end, those national provisions on copyright and related rights which vary considerably from one Member State to another or which cause legal uncertainties hindering the smooth functioning of the internal market and the proper development of the information society in Europe should be adjusted, and inconsistent national responses to the technological developments should be avoided, whilst differences not adversely affecting the functioning of the internal market need not be removed or prevented. … (20) This Directive is based on principles and rules already laid down in the Directives currently in force in this area, in particular [Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), as amended by Council Directive 93/83/EEC of 29 October 1993 (OJ 1993 L 290, p. 9; ‘Directive 92/100’). It] develops those principles and rules and places them in the context of the information society. The provisions of this Directive should be without prejudice to the provisions of those Directives, unless otherwise provided in this Directive. … (23) This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts. … (25) The legal uncertainty regarding the nature and the level of protection of acts of on-demand transmission of copyright works and subject-matter protected by related rights over networks should be overcome by providing for harmonised protection at Community level. It should be made clear that all rightholders recognised by this Directive should have an exclusive right to make available to the public copyright works or any other subject-matter by way of interactive on-demand transmissions. Such interactive on-demand transmissions are characterised by the fact that members of the public may access them from a place and at a time individually chosen by them.’
59

In the light of all the above considerations, the answer to the questions referred for a preliminary ruling is that Article 27 of Regulation No 1408/71, in conjunction with section R, point 1(a) and (b), of Annex VI to that regulation, must be interpreted as meaning that the pension of a person entitled must, in circumstances such as those at issue in the main proceedings, be regarded as payable from the commencement of the period in respect of which that pension was actually paid to that person, whatever the date on which the entitlement to that pension was formally confirmed, including, if appropriate, where the period commences before the date of the decision awarding the pension. Articles 27 and 84a of Regulation No 1408/71, in conjunction with section R, point 1(a) and (b) of Annex VI to that regulation, must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, legislation of a Member State which does not allow the recipient of a pension awarded by that Member State with retroactive effect of one year to become affiliated to compulsory health care insurance with the same retroactive effect, and which has the effect of depriving that person of all social security cover without all the relevant circumstances, in particular those relating to that person’s personal situation, being taken into account.