ddrg/super_eurlex huggingface dataset:
7

Under Article 53 of that directive, entitled ‘Derogation for low value payment instruments and electronic money’: ‘1. In the case of payment instruments which according to the framework contract, solely concern individual payment transactions not exceeding EUR 30 or which either have a spending limit of EUR 150 or store funds which do not exceed EUR 150 at any time payment service providers may agree with their payment service users that: (a) Article 56(1)(b) and Article 57(1)(c) and (d) as well as Article 61(4) and (5) do not apply if the payment instrument does not allow its blocking or prevention of its further use; (b) Articles 59, 60 and Article 61(1) and (2) do not apply if the payment instrument is used anonymously or the payment service provider is not in a position for other reasons which are intrinsic to the payment instrument to prove that a payment transaction was authorised; (c) by way of derogation from Article 65(1), the payment service provider is not required to notify the payment service user of the refusal of a payment order, if the non-execution is apparent from the context; (d) by way of derogation from Article 66, the payer may not revoke the payment order after transmitting the payment order or giving his consent to execute the payment transaction to the payee; (e) by way of derogation from Articles 69 and 70, other execution periods apply. 2. For national payment transactions, Member States or their competent authorities may reduce or double the amounts referred to in paragraph 1. They may increase them for prepaid payment instruments up to EUR 500. 3. Articles 60 and 61 shall apply also to electronic money within the meaning of Article 1(3)(b) of Directive 2000/46/EC [of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions (OJ 2000 L 275, p.39)], except where the payer’s payment service provider does not have the ability to freeze the payment account or block the payment instrument. Member States may limit that derogation to payment accounts or payment instruments of a certain value.’
13

Article 10 of Directive 2009/41, which corresponds to Article 11 of Directive 90/219, as amended, provides: ‘1. Member States shall designate the authority or authorities competent to implement the measures which they adopt in application of this Directive and to receive and acknowledge the notifications referred to in Articles 6, 8 and 9. 2. The competent authorities shall examine the conformity of the notifications with the requirements of this Directive, the accuracy and completeness of the information given, the correctness of the assessment referred to in Article 4(2) and the class of contained uses and, where appropriate, the suitability of the containment and other protective measures, the waste management, and emergency response measures. 3. If necessary, the competent authority may: (a) ask the user to provide further information or to modify the conditions of the proposed contained use or to amend the class assigned to the contained use(s). In this case the competent authority may require that the contained use, if proposed, should not begin, or, if in progress, should be suspended or terminated, until the competent authority has given its approval on the basis of the further information obtained or of the modified conditions of the contained use; (b) limit the time for which the contained use should be permitted or subject it to certain specific conditions. 4. For the purpose of calculating the periods referred to in Articles 8 and 9, any period of time during which the competent authority: (a) is awaiting any further information which it may have requested from the notifier in accordance with point (a) of paragraph 3; or (b) is carrying out a public inquiry or consultation in accordance with Article 12; shall not be taken into account.’
Keywords

Summary

Keywords Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Economic activities — Concept — Operation of a photovoltaic installation on the roof of a house which is used as a dwelling allowing electricity to be supplied to the network in exchange for income on a continuing basis — Whether included (Council Directive 77/388, Art. 4(1) and (2)) Summary Article 4(1) and (2) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that the operation of a photovoltaic installation on or adjacent to a house which is used as a dwelling, which is designed such that the electricity produced is (i) always less than the electricity privately consumed by its operator and (ii) supplied to the network in exchange for income on a continuing basis, falls within the concept of ‘economic activities’ as defined in that Article. (see para. 37, operative part)

Case C-219/12

Finanzamt Freistadt Rohrbach Urfahr

v

Unabhängiger Finanzsenat Außenstelle Linz

(Request for a preliminary ruling from the Verwaltungsgerichtshof)

‛Sixth VAT Directive — Article 4(1) and (2) — Concept of ‘economic activities’ — Deduction of input tax — Operation of a photovoltaic installation on the roof of a house which is used as a dwelling — Supply to the network — Remuneration — Electricity production lower than consumption’

Summary — Judgment of the Court (Second Chamber), 20 June 2013

Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Economic activities — Concept — Operation of a photovoltaic installation on the roof of a house which is used as a dwelling allowing electricity to be supplied to the network in exchange for income on a continuing basis — Whether included

(Council Directive 77/388, Art. 4(1) and (2))

Article 4(1) and (2) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that the operation of a photovoltaic installation on or adjacent to a house which is used as a dwelling, which is designed such that the electricity produced is (i) always less than the electricity privately consumed by its operator and (ii) supplied to the network in exchange for income on a continuing basis, falls within the concept of ‘economic activities’ as defined in that Article.

(see para. 37, operative part)
The mother of a child who is a self-employed person not covered by a State social security scheme does not enjoy the right to maternity leave under Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. The situation of such a self-employed worker does not fall under that directive, which applies only to pregnant workers and workers who have recently given birth or are breastfeeding and who work under the direction of an employer.

Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding and Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as not precluding a national measure which provides that the father of a child, who is an employed person, is entitled, with the consent of the mother, who is also an employed person, to take maternity leave for the period following the compulsory leave of six weeks which the mother must take after childbirth except where the mother’s health would be at risk, whereas a father of a child who is an employed person is not entitled to take such leave where the mother of his child is not an employed person and is not covered by a State social security scheme.

With regard to Directive 76/207 in particular, while such a national measure establishes a difference on grounds of sex, within the meaning of Article 2(1) of that directive, it is a measure intended to protect a woman’s biological condition during and after pregnancy and is therefore justified under Article 2(3) of that directive.

(see paras 60, 61, 63, 66, operative part)
Articles 7 to 9 of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Directive 92/108 and Articles 1 and 4 of Regulation No 3649/92 on a simplified accompanying document for the intra-Community movement of products subject to excise duty which have been released for consumption in the Member State of dispatch, must be interpreted as meaning that a trader is not required to check whether purchasers from other Member States intend to import products subject to excise duty into another Member State and, where relevant, whether such importation is for private or commercial use.

Under Article 1 of Regulation No 3649/92, if products subject to excise duty and already released for consumption in one Member State are intended to be used in another Member State for the purposes referred to in Article 7 of Directive 92/12, the person who is responsible for the intra-Community movement must draw up a simplified accompanying document. However, nothing in those provisions leads to the conclusion that a supplier, to the extent that it is not the ‘person who is responsible for the intra-Community movement’ under Article 1 of Regulation No 3649/92, must check whether the conditions are met for the person responsible to draw up the simplified accompanying document and to give copy 1 thereof to it so that the supplier can keep it.

In accordance with Article 7(3) of Directive 92/12, depending on all the circumstances, the duty is to be due from the person making the delivery or holding the products intended for delivery or from the person receiving the products for use in a Member State other than the one where the products have already been released for consumption, or from the relevant trader or body governed by public law. It follows from this, first, that a trader, as a supplier who does not arrange delivery of the products sold, cannot be considered to be the ‘person making the delivery’ within the meaning of Article 7(3). Such a trader cannot be considered to be the person ‘holding the products intended for delivery’ within the meaning of Article 7(3), in so far as its self-service wholesale business does not make it possible for it to guarantee the commercial use of the products sold to customers from another Member State or that those products will actually be delivered into that Member State.

(see paras 25, 28, 30, 32, 33, 38, operative part 1)
Article 56 EC must be interpreted as meaning that, in the case of rules of a Member State which provide that, where interest applied to the part of an overall debt categorised as excessive has been paid by a resident company to a lending company established in a non-member country with which the borrowing company has special relations, it is not deductible as an expense for the purposes of determining taxable profit, but where such interest is paid to a resident lending company with which the borrowing company has special relations, it is deductible for those purposes, those rules are precluded where, if the lending company established in a non-member country does not have a shareholding in the resident borrowing company, they nevertheless presume that the overall debt owed by the borrowing company forms part of an arrangement designed to avoid the tax normally payable or where they do not make it possible, at the outset, to determine their scope with sufficient precision.

It is true that such rules may be justified where they specifically target wholly artificial arrangements which do not reflect economic reality and the sole purpose of which is to avoid the tax normally payable on the profits generated by activities carried out on the national territory.

However, if the rules do not make it possible, at the outset, to determine their scope with sufficient precision, they do not meet the requirements of legal certainty, in accordance with which rules of law must be clear, precise and predictable as regards their effects, especially where they may have unfavourable consequences for individuals and companies.

In such circumstances, those rules go beyond what is necessary in order to attain their objective.

(see paras 34, 40, 44, 45, operative part)
The consideration for a supply of goods may consist of a supply of services, and so constitute the taxable amount within the meaning of Article 73 of Directive 2006/112 on the common system of value added tax, provided, however, that there is a direct link between the supply of goods and the supply of services and that the value of those services can be expressed in monetary terms. The same is true if a supply of services is performed in exchange for another supply of services, as long as the same conditions are satisfied. Consequently, barter contracts, under which the consideration is by definition in kind, and transactions for which the consideration is in money are, economically and commercially speaking, two identical situations.

Article 2(1)(c) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that a supply of services to fit out and furnish an apartment must be regarded as having been carried out for consideration if, under a contract concluded with the owner of that apartment, the supplier of those services, first, undertakes to carry out that supply of services at its own expense and, secondly, obtains the right to have that apartment at its disposal in order to use it for its business activities during the term of that contract, without being required to pay rent, whereas the owner recovers the improved apartment at the end of that contract.

The fact that the supply of fitting-out and furnishing services will benefit the owner of the apartment at issue only after the contract has expired does not alter anything in that regard, seeing that, as from the conclusion of that contract, the parties to such a bilateral contract undertake to perform reciprocal services for each other.

(see paras 41, 42, operative part)
Under Article 260(1) TFEU, if the Court of Justice finds that a Member State has failed to fulfil an obligation under the Treaties, that Member State is required to take the necessary measures to comply with the judgment of the Court.

The operative part of the judgment of 23 October 2007 in Case C‑112/05 Commission v Germany is of particular importance so far as concerns the failure to fulfil obligations established by the Court, for the Court established in that judgment a failure to fulfil obligations resulting from the combination of two provisions of national law, and not from each of those provisions considered in isolation. That conclusion is confirmed by the grounds of the judgment, in the light of which the operative part of that judgment must be construed. Consequently, the repeal or amendment of only one of those provisions can suffice to fully comply with that judgment.

(see paras 33, 35-37, 39, 40)
Articles 20 TFEU and 21 TFEU must be interpreted as precluding legislation of a Member State that makes the award of an education or training grant, to a national resident in that Member State, for a course pursued in another Member State, subject to the requirement that the course in question lead to a vocational qualification equivalent to that provided by a vocational school in the State awarding the grant, following a course of at least two years’ duration, whereas an education or training grant would have been awarded to the concerned party, as a result of her particular situation, if she had chosen to undertake, in the State awarding the grant, a course equivalent to that which she wished to pursue in another Member State, and which is of less than two years’ duration.

That legislation constitutes a restriction within the meaning of Article 21 TFEU, given the impact that exercising that freedom is likely to have on the right to an education or training grant.

Legislation which is such as to restrict a fundamental freedom guaranteed by the Treaty can be justified in the light of EU law only if it is based on objective considerations of public interest independent of the nationality of the persons concerned and if it is proportionate to the legitimate objective pursued by the provisions of national law.

In that respect, the requirement that the course chosen be of at least two years’ duration appears to be devoid of any link to the standard of that course and is therefore unrelated to the alleged objective of that legislation. The imposition of that condition concerning duration appears to be inconsistent and cannot be regarded as proportionate to that objective.

(see paras 28-30, 32-34, operative part)
Articles 2(1) and 5(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes and Articles 2(1)(a) and 14(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that, in the context of an agreement concluded between a third party and the supplier of goods by which the third party has undertaken to pay the supplier, after deduction of a charge, for the goods sold by the latter to purchasers using a bank card as a means of payment, the physical transfer of goods to a purchaser who fraudulently uses such a card to pay for those goods constitutes a supply of goods.

The concept of a supply of goods does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner.

That concept is objective in nature and it applies without regard to the purpose or results of the transactions concerned and without its being necessary for the tax authorities to carry out inquiries to determine the intention of the taxable person in question or for them to take account of the intention of a trader other than that taxable person involved in the same chain of supply.

Thus, the fraudulent use of a bank card as a means of payment when those transactions have been carried out does not affect the ability to classify them as supplies of goods because such use is a matter not of the objective criteria on which that concept is based but of the intention of the person who has taken part, as the person acquiring the goods, in the transactions at issue and of the processes carried out in order to give effect to that intention.

Moreover, such a situation must be distinguished from that of theft of goods, which is not covered by the concept of a supply of goods, because the theft of goods does not have the effect of empowering the thief to dispose of the goods under the same conditions as their owner.

(see paras 17, 20, 21, 26, 28, 29, 38, operative part)
Article 3(1), second indent, (c) of Directive 96/71 concerning the posting of workers in the framework of the provision of services must be interpreted as not precluding the inclusion in the minimum wage of elements of remuneration which do not alter the relationship between the service provided by the worker, on the one hand, and the consideration which he receives by way of remuneration for that service, on the other. It is for the national court to ascertain the elements of remuneration on a case-by-case basis.

Since Directive 96/71 does not itself provide any substantive definition of the minimum wage, the task of defining what are the constituent elements of the minimum wage, for the application of that directive, therefore comes within the scope of the law of the Member State concerned, but only in so far as that definition does not have the effect of impeding the free movement of services between Member States. Accordingly, lump sum payments, determined in the context of collective bargaining, appear as consideration for the usual work of the workers, taking into account the national practice, during the negotiation of such a collective agreement, and upon expiry of the previous collective agreement, of anticipating, by those lump sum payments, the application of the new salary scale. By contrast, with regard to a capital formation contribution, such as the employer contribution to a multiannual savings plan for the benefit of its employees, that is distinguishable from the salary itself and cannot be regarded, for the application of Directive 96/71, as forming part of the usual relationship between the work done and the financial consideration for that work from the employer. Such a contribution aims, by the formation of a capital amount that the worker will benefit from in the longer term, to achieve an objective of social policy supported, in particular, by a financial contribution from the public authorities.

(see paras 32, 37, 40-42, 44, 45, operative part)
A response to a question referred for a preliminary ruling could be useful for the referring court, even in a purely internal situation where all the factors are confined within a single Member State, in particular if its national law were to require it to grant to a national of that State the same rights as those which a national of another Member State would derive from EU law in the same situation.

Article 49 TFEU must be interpreted as not precluding national legislation which does not allow a pharmacist, who is qualified and registered with the professional body but does not own a pharmacy in the grid, also to offer for retail sale, in the para-pharmacy owned by that pharmacist, prescription-only medicinal products the cost of which is borne not by the national health service but wholly by the purchaser.

In fact, such national legislation which reserves the sale of those medicinal products exclusively to pharmacies, the establishment of which is subject to planning rules, is appropriate to guarantee attainment of the objective of ensuring that the supply of medicinal products to the public is reliable and of good quality and of ensuring the protection of public health. Such legislation, in so far as it substantially reduces the risk linked to a possible shortage of pharmacies does not appear to go beyond what is necessary in order to attain the objective of ensuring that the supply of medicinal products to the public is reliable and of good quality.

(see paras 55, 63, 66, operative part)
Articles 101 TFEU, 102 TFEU and 106 TFEU must be interpreted as meaning that they do not preclude national legislation which imposes on companies classified as attestation organisations a scheme of minimum tariffs for certification services offered to undertakings seeking to participate in procedures for the award of public works contracts

First, such legislation does not infringe Articles 101 TFEU or 102 TFEU, read in conjunction with Article 4(3) TEU, where it does not have the effect of requiring or encouraging the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects and the Member State does not divest its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere, or requires or encourages abuses of a dominant position.

In addition, regarding Article 106 TFEU, the fact that all attestation organisations of a Member State, and only attestation organisations, have been entrusted with certification tasks cannot be considered as granting special or exclusive rights to the latter where all attestation organisations have the same rights and competences in the context of the relevant certification service market, since no competitive advantages have been created in favour of certain undertakings active on that market to the detriment of other undertakings supplying the same services, and that the authorisation to create new attestation organisations is not restricted to a limited number of bodies, but is granted to anybody satisfying the conditions provided for in the national legislation.

(see paras 38, 42, 44, operative part)