ddrg/super_eurlex huggingface dataset:
Article 203 of Directive 2006/112 on the common system of value added tax (VAT) must be interpreted as meaning that the value added tax (VAT) entered by a person on an invoice is payable by him regardless of whether a taxable transaction actually exists.

However, the obligation under Article 203 of Directive 2006/112, which is intended to eliminate the risk of loss of tax revenue which the right of deduction provided for in Article 167 et seq. of the directive might entail, is limited by the possibility, to be provided for by the Member States in their national legal systems, 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.

Moreover, to the extent that the issuer of an invoice does not rely on one of the cases in which improperly invoiced value added tax (VAT) can be corrected, the tax authorities are not obliged, in the context of a tax audit of that person, to determine whether the value added tax (VAT) invoiced and declared corresponds to taxable transactions which were actually carried out by him.

Article 203 of Directive 2006/112 must be interpreted as meaning that it cannot be inferred from the mere fact that the tax authorities did not correct, in a tax adjustment notice addressed to the issuer of the invoice, the value added tax (VAT) declared by the latter that those authorities have acknowledged that the invoice corresponded to an actual taxable transaction.

However, EU law does not preclude the competent authority from checking the existence of the transactions invoiced by a taxable person and rectifying, where necessary, the tax debt resulting from the declarations made by the taxable person. The outcome of such a check is, like the declaration and the payment, by the issuer of the invoice, of invoiced value added tax (VAT), one factor to be taken into account by the national court when assessing whether a taxable transaction conferring the right of deduction on the recipient of an invoice in a specific case exists.

(see paras 32, 33, 35, 37, 38, operative part 1)
Articles 213, 214 and 273 of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the tax authority of a Member State may not refuse to assign a value added tax identification number to a company solely on the ground that, in the opinion of that authority, the company does not have at its disposal the material, technical and financial resources to carry out the economic activity declared, and that the owner of the shares in that company has already obtained, on various occasions, such an identification number for companies which never carried out any real economic activity, and the shares of which were transferred immediately after obtaining the individual number, where the tax authority concerned has not established, on the basis of objective factors, that there is sound evidence leading to the suspicion that the value added tax identification number assigned will be used fraudulently. It is for the national court to assess whether that tax authority provided serious evidence of the existence of a risk of tax evasion.

In order to be considered proportionate to the objective of preventing evasion, a refusal to identify a taxable person by an individual number must be based on sound evidence giving objective grounds for considering that it is probable that that number will be used fraudulently. Such a decision must be based on an overall assessment of all the circumstances of the case and of the evidence gathered when checking the information provided by the undertaking concerned. However, it cannot be excluded, in that regard, that circumstances of such a nature, corroborated by the presence of other objective elements leading to the suspicion of the taxable person’s fraudulent intentions, may constitute factors that have to be taken into account as part of the overall assessment of the risk of evasion.

(see paras 27, 34, 36-39, operative part)
It follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court of Justice of the European Union that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Since the appellant relies on errors of law made by the General Court, indicating, in a sufficiently precise manner, the contested elements of the judgment under appeal and the reasons for which it considers that those elements are marred by such errors, the appeal is admissible.

There is an inadequate statement of reasons and, accordingly, infringement of an essential procedural requirement when it is held in a judgment of the General Court that the payment in full of the fine imposed by a decision of the Commission finding an infringement of the competition rules by one of the addressees of that decision is not sufficient to give rise to a claim on the part of the latter against another addressee, as jointly and severally liable co-debtor of the fine, despite the precise arguments to the contrary put forward by the jointly and severally liable co-debtor concerned.

Likewise, the duty to state reasons is infringed when the General Court fails to respond to a central part of the line of argument of the jointly and severally liable co-debtor, who is also the appellant, by failing, inter alia, to examine whether the creditor’s right to bring an action in order to recover the part of the fine it paid is time-barred, despite the clear and precise arguments put forward in that respect by the jointly and severally liable co-debtor.

Where the appellant claims that the arrangement with creditors allows an insolvent undertaking to restructure its debt with all of its creditors and thus continue its activities, the General Court cannot merely respond to that decisive argument by stating that the jointly and severally liable debtor has not provided any explanation as to why it categorised the creditor as a ‘prior creditor’, or as to why the latter has not attempted to submit its claim.

(see paras 36, 37, 39, 41, 44, 45)
Keywords

Summary



Keywords

Freedom of movement for persons — Freedom of establishment — Companies — Directive 2005/56 — Cross-border mergers of limited liability companies — Company resulting from a cross-border merger — Employees employed in the Member State where the company has its registered office or in other Member States — Participation rights — Failure to provide identical rights — Failure to fulfil obligations

(European Parliament and Council Directive 2005/56, Art. 16(2)(a) and (b))

Summary

A Member State which fails to adopt all the laws, regulations and administrative provisions necessary to ensure that the employees of establishments of a company resulting from a cross-border merger situated in other Member States than that in which that company has its registered office enjoy participation rights identical to those enjoyed by the employees employed in the Member State in which that company has its registered office, fails to fulfil its obligations under Article 16(2)(b) of Directive 2005/56/EC on cross-border mergers of limited liability companies.

In view of the EU legislature’s intention to protect employee participation rights both in circumstances governed by the rules relating to the European company and in those governed by national law, it is important, in national rules also, not only for employee participation in the companies concerned by the merger to be preserved, in accordance with Article 16(2)(a) of the Mergers Directive, but also for the rights enjoyed by those employees employed in the Member State in which the company resulting from the cross-border merger has its registered office, in accordance with Article 16(2)(b) of that directive, to be extended to the other employees concerned by the merger who are employed in other Member States.

(see paras 43, 50, operative part)
Article 3 of Directive 2001/23 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as precluding a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer are enforceable against the transferee, where that transferee does not have the possibility of participating in the negotiation process of such collective agreements concluded after the date of the transfer.

The directive relating to employees’ rights does not aim solely to safeguard the interests of employees in the event of the transfer of an undertaking, but seeks to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other. During the transfer of an undertaking from the public sector to the private sector, a dynamic clause referring to collective agreements negotiated and agreed after the date of transfer of an undertaking that are intended to regulate changes in working conditions in the public sector is liable to limit considerably the room for manoeuvre necessary for a private transferee to make such adjustments and changes. Such a clause is therefore liable to undermine the fair balance between the interests of the transferee in its capacity as employer, on the one hand, and those of the employees, on the other.

(see paras 25, 27-29, 37, operative part)
Keywords

Subject of the case

Operative part



Keywords

Actions for failure to fulfil obligations — Subject-matter of the dispute — Application initiating proceedings — Coherent and detailed statement of the complaints — Absence — Inadmissibility (Art. 258 TFEU) (para. 35)

2. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion — Additional reasoned opinion — Taking account of the deadline laid down therein (Art. 258 TFEU) (see para. 36)

Subject of the case

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 4 and 7 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, corrigendum OJ 2004 L 200, p. 1) and Articles 18 and 45 TFEU — National rules precluding the indexation, for the period until 1 August 2004, of pensions of nationals of a Member State which had not concluded a reciprocal agreement or who do not satisfy the condition of residence in the European Union — Residence in a non-Member State — Infringement of the principle of non-discrimination on grounds of nationality — Lack of justification.

Operative part

Operative part

The Court:

1. Dismisses the action as inadmissible.

2. Orders the European Commission to pay the costs.

3. Orders the Hellenic Republic to bear its own costs.
A Member State has failed to fulfil its obligations under Article 56 TFEU where it adopts national legislation pursuant to which pension funds established in Member States other than that Member State and offering occupational pension schemes in that Member State and insurance companies operating in that Member State under the freedom to provide services are required to appoint a tax representative resident in that Member State.

The obligation to appoint a tax representative in that Member State constitutes a restriction within the meaning of Article 56 TFEU and is likely to involve additional costs for pension funds established in other Member States offering occupational pension schemes in that Member State, and for insurance companies operating in that Member State under the freedom to provide services. Consequently, that obligation makes the provision of services by those entities to persons residing in that Member State more difficult and less attractive than the provision of similar services to the same persons by entities established in that Member State which are not subject to that obligation. Furthermore, the fact that that representative must reside in that Member State impedes the freedom to provide services for persons and undertakings established in other Member States and wishing to provide tax representation services to entities or natural persons operating in the Member State.

It is true that the obligations to disclose information and to withhold and pay sums due to the public treasury, which the tax representatives referred to in the legislation at issue must perform for the pension funds and insurance companies established in other Member States, constitute an appropriate means of ensuring the effective collection of the tax due on income paid by the occupational pension schemes.

However, national legislation giving pension funds established in other Member States and offering occupational pension schemes in that Member State and insurance companies operating in that Member State under the freedom to provide services the choice of appointing a tax representative or carrying out the tasks themselves, in accordance with the solution which they consider to be the most advantageous from the economic point of view, would be less prejudicial to the freedom to provide services than the general obligation to appoint such a representative imposed by the national legislation at issue.

(see paras 40, 41, 47, 58, 63, operative part)
Judgment of the Court (Second Chamber) of 5 December 2013 — SNIA v Commission

(Case C‑448/11 P)

‛Appeal — Agreements, decisions and concerted practices — European market for hydrogen peroxide and sodium perborate — Decision finding an infringement of Article 81 EC — Imputation of liability in the field of competition — Economic continuity test — Infringement of the rights of defence — Duty to state reasons’

1. Competition — EU rules — Infringements — Attribution — Legal person responsible for the operation of the undertaking at the time of the infringement — Disappearance — Disappearance through absorption by another undertaking — Attribution of liability to the acquirer — Lawfulness (Art. 81(1) EC) (see paras 21‑24)

2. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Scope (Art. 81 EC; Council Regulation No 1/2003, Art. 27(1)) (see paras 41‑44)

3. Acts of the institutions — Statement of reasons — Obligation — Scope (Art. 296 TFEU) (see para. 56)

Re:

Appeal against the judgment of the General Court (Sixth Chamber, Extended Composition) of 16 June 2011 in Case T‑194/06 SNIA v Commission, by which the General Court dismissed the action for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate), to the extent that the Commission imposed a fine jointly and severally on Caffaro Srl and on SNIA SpA — Rules relating to the imputability of anti-competitive practices in the case of a merger — Infringement of the rights of defence and of the duty to state reasons.

Operative part:

The Court:

1. Dismisses the appeal;
Judgment of the Court (Eighth Chamber) of 26 January 2012 — Commission v Slovenia

(Case C‑185/11)

Failure of a Member State to fulfil obligations — Direct insurance other than life assurance — Directives 73/239/EEC and 92/49/EEC — Incorrect and incomplete transposition

Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para 21)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 56 and 63 of the Treaty on the functioning of the European Union — Infringement of Article 8(3) of First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3) and of Articles 29 and 39 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive; OJ 1992 L 228, p. 1)

Operative part

The Court:

1. Declares that, by transposing into national law incorrectly and incompletely First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as amended by Directive 2005/68/EC of the European Parliament and the Council of 16 November 2005, and Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending directives 73/239/EEC and 88/357/EEC (third non‑life insurance Directive), as amended by Directive 2005/68, the Republic of Slovenia has failed to fulfil its obligations under Article 8(3) of Directive 73/239 and Articles 29 and 39 of Directive 92/49;

2. Dismisses the remainder of the action;
29

However, while a provision such as that the tenor of which is set out in paragraph 21 of this judgment is likely to entail a difference in treatment according to the date of recruitment by the employer concerned, such a difference is not, directly or indirectly, based on age or on an event linked to age. It is the experience which may have been acquired by a cabin crew member with another airline in the same group of companies which is not taken into account for grading, irrespective of the age of that cabin crew member at the time of his or her recruitment. That provision is therefore based on a criterion which is neither inextricably (see, a contrario, Case C-499/08 Ingeniørforeningen i Danmark [2010] ECR I-9343, paragraph 23) nor indirectly linked to the age of employees, even if it is conceivable that a consequence of the application of the criterion at issue may, in some individual cases, be that the time of advancement of the cabin crew members concerned from employment category A to employment category B is at a later age than the time of advancement of staff members who have acquired equivalent experience with Tyrolean Airways.
58

As regards the proof of reputation, Helena Rubinstein and L’Oréal dispute the probative force of some of the evidence produced by Allergan, namely the volume of sales of products marketed under the BOTOX mark, mentioned in paragraphs 46 and 47 of the judgment under appeal, and the promotion of the BOTOX mark in scientific journals, described in paragraphs 48 and 49 of that judgment. As regards the significant media coverage of those products, referred to in paragraphs 50 to 54 of the judgment under appeal, Helena Rubinstein and L’Oréal maintain that the General Court distorted the clear sense of that evidence in so far as it was not substantiated by proof of the circulation, in the United Kingdom, of the newspapers or magazines in which the articles concerning the products marketed under the BOTOX mark were published. They submit that the findings made by the General Court in paragraphs 55 and 56 of the judgment under appeal regarding the inclusion of the term ‘BOTOX’ in a number of dictionaries is based on a distortion of the facts. Helena Rubinstein and L’Oréal also argue that, in paragraphs 60 to 63 of the judgment under appeal, the General Court distorted the clear sense of the evidence in relation to the market survey undertaken in the United Kingdom in September and October 2004. On that point, they dispute the relevance of that survey in so far as it does not contain any evidence — which, they claim, it was for Allergan to adduce — capable of establishing a link between the data contained therein and the situation existing at the date on which the application for registration of the disputed marks was filed.
27

Accordingly, it is not necessary to consider the precise meaning of the word ‘negotiation’, which also appears in other provisions of the Sixth Directive, including Article 13B(d)(1) to (4), in order to hold that, in the context of Article 13B(d)(5), it refers to the activity of an intermediary who does not occupy the position of any party to a contract relating to a financial product, and whose activity amounts to something other than the provision of contractual services typically undertaken by the parties to such contracts. Negotiation is a service rendered to, and remunerated by, a contractual party as a distinct act of mediation. It may consist, amongst other things, in pointing out suitable opportunities for the conclusion of such a contract, making contact with another party or negotiating, in the name of and on behalf of a client, the detail of the payments to be made by either side. The purpose of negotiation is therefore to do all that is necessary in order for two parties to enter into a contract, without the negotiator having any interest of his own in the terms of the contract (CSC Financial Services, paragraph 39).
31

First, if it were necessary to interpret the six-month period referred to in the last sentence of the first subparagraph of Article 7(1) of the Eighth VAT Directive as a non-mandatory time-limit, the effect of that would be to authorise Member States to apply their own rules on limitation periods bringing about the extinguishment of rights, which in some cases may be more restrictive, so that, in such cases, it would be the time-limits under those national rules which would ultimately determine the period of time available to taxable persons to submit an application for a VAT refund. Limitation periods bringing about the extinguishment of rights are not harmonised within the European Union and may, therefore, vary from one Member State to another. Such an interpretation would thus be at variance with the objective pursued by the Eighth VAT Directive of eliminating ‘discrepancies between the arrangements currently in force in Member States’.