ddrg/super_eurlex huggingface dataset:
5

Article 4 of the Law on Medicinal Products states as follows: ‘1. Subject to the reservation in paragraphs 3 and 4, medicinal products imported from outside Poland may be placed on the market without the need to obtain authorisation for them if their use is necessary for the purpose of saving the life or safeguarding the health of a patient, on condition that the medicinal product in question is allowed to be marketed in the country from which it was imported and holds an up-to-date marketing authorisation. 2. The basis for the importation of a medicinal product, as referred to in paragraph 1, is the requirement of the hospital or external doctor treating the patient, as confirmed by a consultant in the medical sector concerned. 3. The following medicinal products may not be placed on the market within the terms of paragraph 1: (1) those in respect of which the minister with responsibility for health-related matters has issued a decision refusing to grant authorisation, refusing to extend the duration of validity of an authorisation, or revoking authorisation; and (2) those containing the same active substance or substances, the same dosage and having the same form as medicinal products which have obtained authorisation, subject to the reservation in paragraph 3a. 3a. The rule in paragraph 3(2) shall not apply to medicinal products, as referred to in paragraph 1, the price of which is competitive in relation to the price of the medicinal product which has obtained authorisation within the terms of Article 3(1) or (2), on condition that the requirement has been expressed by a health insurance doctor and has been confirmed by a consultant in the medical sector concerned, and that the minister with responsibility for health-related matters has expressed, by way of a decision, his agreement to the importation of those products. 4. Medicinal products, as referred to in paragraph 1, which, having regard to the safety of their application or the scale of importation, must be granted marketing authorisation pursuant to Article 3(1), may also not be placed on the market. 5. Pharmacies, wholesalers and hospitals engaging in the commercial sale of medicinal products, as referred to in paragraph 1, shall maintain a register of those products. 6. On the basis of that register, a pharmaceutical wholesaler shall forward to the minister with responsibility for health-related matters, no later than 10 days after the end of each quarter, a summary list of imported medicinal products.’
13

Article 138 of that regulation provides: ‘1. Except in cases of force majeure or exceptional circumstances as defined in Article 72 of Regulation (EC) No 796/2004, where, as a result of an administrative or on-the-spot check, it is found that the established difference between the area declared and the area determined, within the meaning of point (22) of Article 2 of Regulation (EC) No 796/2004, is more than 3% but no more than 30% of the area determined, the amount to be granted under the single area payment scheme shall be reduced, for the year in question, by twice the difference found. If the difference is more than 30% of the area determined, no aid shall be granted for the year in question. If the difference is more than 50%, the farmer shall be excluded once again from receiving aid up to an amount which corresponds to the difference between the area declared and the area determined. That amount shall be off-set against aid payments to which the farmer is entitled in the context of applications he lodges in the course of the three calendar years following the calendar year of the finding. 2. Where differences between the area declared and the area determined result from irregularities committed intentionally, the aid to which the farmer would have been entitled shall not be granted for the calendar year in question. Moreover, where that difference is more than 20% of the area determined, the farmer shall be excluded once again from receiving aid up to an amount which corresponds to the difference between the area declared and the area determined. That amount shall be off-set against aid payments to which the farmer is entitled in the context of applications he lodges in the course of the three calendar years following the calendar year of the finding. 3. For the purpose of establishing the area determined within the meaning of point (22) of Article 2 of Regulation (EC) No 796/2004, Article 143b(5) and the first subparagraph of Article 143b(6) of Regulation … No 1782/2003 and Article 137 of this Regulation shall apply.’
Judgment of the Court (Sixth Chamber) of 28 June 2012 —

Commission v Greece

(Case C-485/10)

Failure of a Member State to fulfil obligations — State aid — Aid granted to Ellinika Nafpigeia AE — Incompatibility with the common market — Recovery — Non-execution

1. State aid — Recovery of unlawful aid — Obligation — Duty to implement the Commission Decision immediately and effectively (Arts 108(2) TFEU and 288 TFEU; Council Regulation No 659/1999, Art. 14(3)) (see paras 27, 36)

2. State aid — Recovery of unlawful aid — Application of national law — Conditions — Implementation of a procedure enabling the immediate and effective execution of the Commission decision (Arts 108(2) TFEU and 288 TFEU; Council Regulation No 659/1999, Art. 14(3)) (see paras 28, 29)

3. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Duty to recover the aid granted — Reference period — Period fixed by the unimplemented decision or, subsequently, by the Commission (Arts 108(2)(2) TFEU and 288 TFEU) (see paras 30, 31)

Re:

Failure of a Member State to fulfil obligations — Failure to have taken, within the period prescribed, the measures necessary to comply with Commission Decision 2009/610/EC of 2 July 2008 on aid C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) granted by Greece to Hellenic Shipyards SA (notified under number C(2008) 3118) (OJ 2008 L 225, p. 104).

Operative part

The Court:

1. Declares that, by failing to take, within the period prescribed, all the measures necessary in order to implement Commission Decision 2009/610/EC of 2 July 2008 on aid C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) granted by Greece to Hellenic Shipyards SA, and by failing to provide the information listed in Article 19 of that decision to the European Commission, the Hellenic Republic failed to fulfil its obligations under Articles 2, 3, 5, 6, 8, 9 and 11 to 19 of that decision;
When a financial leasing contract relating to a motor vehicle provides either that ownership of that vehicle is to be transferred to the lessee on the expiry of that contract or that the lessee is to possess all the essential powers attaching to ownership of that vehicle and, in particular, that substantially all the rewards and risks incidental to legal ownership of that vehicle are transferred to the lessee and that the present value of the amount of the lease payments is practically identical to the market value of the property, the transaction must be treated as the acquisition of capital goods.

On a proper construction of Article 168(a) of Directive 2006/112 on the common system of value added tax, a leased motor vehicle is to be regarded as used for the purposes of the taxable person’s taxed transactions if there is a direct and immediate link between the use of that vehicle and the taxable person’s economic activity. The time when the right to deduct arises and when it is necessary to take into account the existence of such a link is on the expiry of the period to which each payment relates.

Further, a motor vehicle leased under a financial leasing contract and placed in the category of capital goods is to be regarded as used for the purposes of taxed transactions if the taxable person acting as such acquires that vehicle and allocates it entirely to the assets of his undertaking, input value added tax payable being fully and immediately deductible, and any use of that vehicle for the taxable person’s private purposes or for those of his staff or for purposes other than those of his undertaking being treated as a supply of services carried out for consideration. It is the acquisition of the goods by a taxable person acting as such that determines the application of the value added tax system and therefore of the deduction mechanism. The use to which the goods are put, or intended to be put, merely determines the extent of the initial deduction to which the taxable person is entitled. The question whether a taxable person has acquired goods acting as such, that is, for the purposes of his economic activity within the meaning of Article 9 of the directive, is a question of fact that must be determined in the light of all the circumstances of the case, including the nature of the goods concerned and the period between the acquisition of the goods and their use for the purposes of the taxable person’s economic activity.

(see paras 57, 58, 64, operative part 1)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark – Procedural provisions – Examination of the facts of the Office’s own motion – Scope – No obligation to prove matters of common knowledge – Issue before the General Court – Documents produced in order to substantiate the accuracy of a fact of common knowledge (Council Regulation No 40/94, Art. 74(1)) (see paras 26-30)

2. Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 36-37)

Subject of the case

Re:

Appeal against the judgment of the General Court (Second Chamber) of 16 December 2010 in Case T-497/09 LG Electronics v OHIM dismissing the appellant’s action against the decision of the First Board of Appeal of OHIM of 23 September 2009 (Case R 397/2009-1) concerning an application for registration of the word sign KOMPRESSOR PLUS as a Community trade mark – Descriptive nature of the mark – Article 7(1)(c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) – Consideration of new facts by the General Court – Distortion of the evidence.

Operative part

Operative part

The Court:

1. Dismisses the appeal;

2. Orders LG Electronics Inc. to pay the costs.
Keywords

Summary



Keywords

1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — National practice refusing a taxable person the right to deduct in the event of irregularities committed by the issuer of the invoice or one of his suppliers — Not permissible — Limits — Conditions

(Council Directive 2006/112, Arts 167, 168(a), 178(a), 220(1), and 226)

2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — Obligations of the taxable person — National practice refusing a taxable person the right to deduct in the event of irregularities committed by the issuer of the invoice — Refusal rejected notwithstanding fulfilment of substantive conditions for the right to deduct and in the absence of material justifying the suspicion that irregularities or fraud have been committed by the issuer — Not permissible

(Council Directive 2006/112, Arts 167, 168(a), 178(a), and 273)

Summary

1. Articles 167, 168(a), 178(a), 220(1) and 226 of Directive 2006/112 on the common system of value added tax must be interpreted as precluding a national practice whereby the tax authority refuses a taxable person the right to deduct, from the value added tax which he is liable to pay, the amount of the value added tax due or paid in respect of the services supplied to him, on the ground that the issuer of the invoice relating to those services, or one of his suppliers, acted improperly, without that authority establishing, on the basis of objective evidence, that the taxable person concerned knew, or ought to have known, that the transaction relied on as a basis for the right to deduct was connected with fraud committed by the issuer of the invoice or by another trader acting earlier in the chain of supply.

(see para. 50, operative part 1)

2. Articles 167, 168(a), 178(a) and 273 of Directive 2006/112 on the common system of value added tax must be interpreted as precluding a national practice whereby the tax authority refuses the right to deduct on the ground that the taxable person did not satisfy himself that the issuer of the invoice relating to the goods in respect of which the exercise of the right to deduct is sought had the status of a taxable person, that he was in possession of the goods in question and was in a position to supply them, and that he had satisfied his obligations as regards declaration and payment of value added tax, or on the ground that, in addition to that invoice, that taxable person is not in possession of other documents capable of demonstrating that those conditions were fulfilled, although the substantive and formal conditions laid down by Directive 2006/112 for exercising the right to deduct were fulfilled and the taxable person is not in possession of any material justifying the suspicion that irregularities or fraud have been committed within that invoice issuer’s sphere of activity.

(see para. 66, operative part 2)
Keywords

Summary



Keywords

1. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Scope

(Council Directive 2000/78)

2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prevention of discrimination on grounds of age — Collective agreement governing grading and pay of cabin crews of an airline — Taking into account, for the purposes of grading, only the professional experience acquired in the service of that airline, while excluding substantively identical experience acquired in the service of another airline belonging to the same group of companies — Lawfulness

(Council Directive 2000/78, Art. 2(1)(b))

Summary

1. See the text of the judgment.

(see paras 22, 24)

2. Article 2(2)(b) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a provision of a collective agreement which takes into account, for the purposes of grading in the employment categories provided for in that agreement and, therefore, determination of the level of pay, only the professional experience acquired as a cabin crew member of a specific airline, while excluding substantively identical experience acquired in the service of another airline belonging to the same group of companies.

While such a provision of a collective agreement 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 nor indirectly linked to the age of employees.

(see paras 29, 31, operative part)
While the victims of crime should be afforded a high level of protection, the aim of Framework Decision 2001/220 on the standing of victims in criminal proceedings is simply to ensure that, within criminal proceedings as defined in Article 1(c) thereof, minimum standards are drawn up for the protection of victims of crime.

It is apparent from the very wording of Article 1(a) of Framework Decision 2001/220 on the standing of victims in criminal proceedings that that decision ensures, in principle, that the victim is entitled to compensation in criminal proceedings in respect of ‘acts or omissions that are in violation of the criminal law of a Member State’ and are the ‘direct’ cause of the harm. Persons harmed as a result of an administrative offence committed by a legal person cannot be regarded, for the purposes of the application of Article 9(1) of the Framework Decision, as the victims of a criminal act who are entitled to obtain a decision, in criminal proceedings, on compensation by that legal person.

Consequently, Article 9(1) of the Framework Decision must be interpreted as meaning that, under a system governing the liability of legal persons, that provision does not preclude a situation in which the victim of a criminal act is not entitled to seek compensation for the harm directly caused by that act in the course of criminal proceedings from the legal person who committed an administrative offence.

(see paras 46, 48, 49, operative part)
Article 18(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an embassy of a third State situated in a Member State is an establishment within the meaning of that provision, in a dispute concerning a contract of employment concluded by the embassy on behalf of the sending State, where the functions carried out by the employee do not fall within the exercise of public powers. It is for the national court seised to determine the precise nature of the functions carried out by the employee.

The principle of customary international law concerning the immunity of States from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute in which an employee seeks compensation and contests the termination of a contract of employment concluded by him with a State, where the court seised finds that the functions carried out by that employee do not fall within the exercise of public powers or where the proceedings are not likely to interfere with the security interests of the State. On the basis of that finding, the court seised of a dispute may also consider that that dispute falls within the material scope of Regulation No 44/2001.

(see paras 56, 57, operative part 1)
The Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the successive versions of the following regulations, amending Annex I to Regulation No 2658/87, No 1789/2003, No 1810/2004, No 1719/2005, and No 1549/2006, must be interpreted as meaning that polishing pads intended for a polishing machine for working semiconductor materials — as such coming under tariff heading 8464 (or heading 8486 since Regulation No 1549/2006 entered into force) — imported separately from the machine, in the form of discs perforated in the centre, made up of a hard polyurethane layer, a layer of polyurethane foam, an adhesive layer and a protective plastic film, which do not contain any metal part or any abrasive substance and are used to polish ‘wafers’, in combination with an abrasive liquid, and must be replaced at a frequency determined by their level of wear, come under subheading 3919 90 10, as self-adhesive flat shapes, other than squares or rectangles, made of plastic.

Those polishing pads cannot be considered to be ‘parts’ or ‘accessories’ for use with semiconductor wafer-polishing machines and cannot therefore be classified under heading 8466 of the Combined Nomenclature (or heading 8486 of the Combined Nomenclature since Regulation No 1549/2006 entered into force), in so far as, first, polishing pads are not essential for the operation of wafer-polishing machines, second, the polishing pads in question do not enable those machines to be adapted for a particular operation, nor do they increase their range of operations, or enable them to perform a particular service connected with their main function. Furthermore, neither the fact that a good is intended exclusively to be used with a particular kind of machine nor the fact that it is possible that the machine may already be fitted with that good are relevant considerations for the purposes of classifying the good in question as a ‘part’ or ‘accessory’.

(see paras 35, 37-40, operative part)
Article 49 TFEU must be interpreted, in circumstances such as those at issue in the main proceedings, as precluding national legislation which makes the grant of a reduction in capital tax conditional upon remaining liable to that tax for the next five tax years.

Such a restriction on the freedom of establishment cannot be justified by the requirement of the balanced allocation of powers of taxation between the Member States. Withdrawing from a company the capital tax reduction which it was receiving and requiring immediate payment when the company transfers its seat to another Member State do not ensure either the powers of taxation of the latter Member State or the balanced allocation of the powers of taxation between the Member States concerned, since the very nature of the mechanism of withdrawing an advantage implies that the Member State had agreed, in advance, to grant that advantage and, consequently, to reduce the capital tax of resident taxpayers if the conditions provided for in the national legislation were satisfied.

Moreover, that restriction cannot be justified by the need to ensure the coherence of the national tax system, as there is no direct link between, on the one hand, the grant of a reduction in capital tax to a company that complies with the conditions provided for in the national legislation and, on the other, the objectives pursued by that legislation, in particular offsetting that tax advantage with additional revenue from corporate income tax and trade tax on operating profit during five years.

(see paras 44-46, 48, 52, operative part)
Articles 9(1)(a) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union is capable of constituting an ‘act of persecution’ within the meaning of that provision of the directive. It is apparent from the wording of Article 9(1) of that directive that there must be a ‘severe violation’ of freedom of religion having a significant effect on the person concerned in order for it to be possible for the acts in question to be regarded as acts of persecution. Accordingly, acts whose gravity is not equivalent to that of an infringement of the basic human rights from which no derogation can be made by virtue of Article 15(2) of the European Convention on Human Rights cannot be regarded as constituting persecution within the meaning of Article 9(1) of Directive 2004/83 and Article 1A of the Geneva Convention Relating to the Status of Refugees.

Acts which may constitute a ‘severe violation’ within the meaning of that provision include serious acts which interfere with the applicant’s freedom not only to practice his faith in private circles but also to live that faith publicly. Therefore, there may be an act of persecution as a result of interference with the external manifestation of that freedom.

For the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83.

(see paras 59, 61, 63, 72, operative part 1)