ddrg/super_eurlex huggingface dataset:
9

The legislative preparatory works regarding the exception provide the following guidance for interpreting that exception: – It is for the company requesting the deduction to show that the debt has not been incurred mainly for tax reasons. The term ‘mainly’ relates to a percentage of around 75% or more. The assessment must be carried out at the level of the group of associated companies and the tax situation of both the lender and the borrower are to be taken into account. – When the exception is applied, an assessment must be made in each individual case, taking into account all the relevant circumstances, in order to determine whether the main reason for the transactions’ having been carried out and the contractual relationship’s having arisen is so that the group of associated companies can receive a substantial tax benefit. – Several factors weigh in favour of applying the exception. In that regard, it has, for example, to be determined whether the loan has been taken out in order to finance an associated company’s acquisition of share rights from another company in the group of associated companies. In that context, high rates of interest may be an important factor. It is also necessary to determine whether the financing could have taken the form of a capital injection instead of a loan. Furthermore, account must also be taken of whether there have been unwarranted channellings of interest payments through other companies in the group of associated companies, and also of situations in which the group of associated companies, in connection with the acquisition of share rights, creates new companies the main purpose of which is to hold a loan claim. Lastly, amongst other considerations, particular attention is also to be paid to the origin of the funds and to the level at which the recipient of the interest is taxed. – In any event, the exception does not apply to interest payments on internal loans between traditionally taxed limited companies between which there is an entitlement to intra-group financial transfers.
14

Article 3 of that regulation, headed ‘Access to the procedure for examining an application for international protection’, provides: ‘1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible. 2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it. Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible. Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible. …’
13

Article 7 of that directive provides: ‘1. Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers. 2. Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence. 3. Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered. 4. By way of derogation from paragraphs 2 and 3, provided that this does not prejudice the right to a fair trial, access to certain materials may be refused if such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted. Member States shall ensure that, in accordance with procedures in national law, a decision to refuse access to certain materials in accordance with this paragraph is taken by a judicial authority or is at least subject to judicial review. 5. Access, as referred to in this Article, shall be provided free of charge.’
48

As regards the applicability to services such as those at issue in the main proceedings of the second type of exception, referred to in paragraphs 40 to 42 of this judgment, it is important, in the present case, to note, on the one hand, the autonomous purpose of the dietary monitoring service from the perspective of the average consumer. Even if such dietary monitoring services were provided or could be provided in the same sports premises as physical well-being and fitness services, the purpose of the former is not a sporting one, but a health and aesthetic one, notwithstanding the fact that a dietary regime may have the effect of contributing to athletic performance. On the other hand, as the Advocate General pointed out in point 56 of her Opinion, in the case in the main proceedings, according to the applicant's invoice, 40% of the total monthly consideration payable by the client was attributable to nutritional advice, a percentage which clearly cannot be described as minimal or, a fortiori, marginal. Dietary monitoring services such as those at issue in the main proceedings cannot therefore be regarded as ancillary to the main services which constitute physical well-being and fitness services.
56

It also follows that, since the intervention of that body is provided for, under Directive 2009/103 and in respect of an identified vehicle, only in cases in which taking out the insurance referred to in the first paragraph of Article 3 of Directive 2009/103 is compulsory, the interpretation adopted in paragraph 47 of this judgment must also be applied in order to ensure that the objective of protecting the victims of traffic accidents caused by motor vehicles is met, since that interpretation guarantees that those victims are, in any event, compensated either by the insurer, under a contract concluded for that purpose, or by the body referred to in Article 10 of Directive 2009/103 where the obligation to insure the vehicle involved in the accident has not been met or where that vehicle has not been identified. In that regard, it should be noted that that objective, pursued by the successive directives relating to insurance against civil liability in respect of the use of such vehicles, has continuously been pursued and reinforced by the EU legislature and is reaffirmed again in recital 2 of Directive 2009/103 (see, to that effect, judgment of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraph 47 and the case-law cited).
26

It is in that context that the Tribunal Superior de Justicia de Aragón (High Court of Justice, Aragon) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Must clause 4 of the [framework agreement] be interpreted as meaning that the right, derived from obtaining a post in the public sector, to the conferral of a particular administrative status in relation to the post – also in the public sector – which was held up until then is a condition of employment in respect of which temporary workers and permanent workers may not be treated differently? (2) Must clause 4 of the [framework agreement] be interpreted as meaning that justification on objective grounds for the different treatment between fixed-term workers and permanent workers includes the aim of preventing serious failings and harm as regards the instability of workforces in a field as sensitive as the provision of healthcare, which falls under the constitutional right to the protection of health, such that it can serve as the basis for refusal to grant a particular type of leave of absence to those who obtain a temporary post but not to those who obtain a permanent post? (3) Does clause 4 of the [framework agreement] preclude a rule such as that laid down in Article 15 of [the rules on administrative statuses], which excludes posts held as a temporary civil servant or as a temporary staff member from being part of the posts which give entitlement to the status of on leave of absence by reason of employment in the public sector, when that status must be granted to those who take up a permanent post in the public sector and that status is more advantageous for a public servant than the other alternative administrative statuses which that public servant would have to request in order to be able to take up a new post to which he or she has been nominated?’
15

For taxable persons not established in Austria who do not carry out any transactions there, Article 3 of the Verordnung des Bundesministers für Finanzen, mit der ein eigenes Verfahren für die Erstattung der abziehbaren Vorsteuern an ausländische Unternehmer geschaffen wird (Regulation of the Federal Minister for Finance introducing a separate procedure for the refund of deductible input VAT to foreign entrepreneurs) of 21 April 1995 (BGBl. 279/1995), in the version applicable to the facts in the main proceedings (BGBl. II, 158/2014), provides, in respect of taxable persons established in other Member States, that where, on expiry of a period of 4 months and 10 working days after receipt of the application for refund by the tax authorities, the latter has not paid the amount to be refunded, a penalty for late payment of 2% of the amount of the tax not refunded in time, must be applied in favour of the taxable person. If the tax authorities request additional information, that period is 6 months and 10 working days and, in the event of a second reminder, 8 months and 10 working days. A second penalty for late payment, amounting to 1% of the amount not refunded, is to be applied if the amount of the tax is not refunded within three months after the expiry of that period of time. Finally, a third penalty for late payment, amounting also to 1% of the amount not refunded, is to be applied if the amount of the tax is not refunded within three months after the expiry of the period of time giving rise to the second penalty for delay.
26

Article 6 of that directive, entitled ‘Traffic data’, provides: ‘1. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication without prejudice to paragraphs 2, 3 and 5 of this Article and Article 15(1). 2. Traffic data necessary for the purposes of subscriber billing and interconnection payments may be processed. Such processing is permissible only up to the end of the period during which the bill may lawfully be challenged or payment pursued. 3. For the purpose of marketing electronic communications services or for the provision of value added services, the provider of a publicly available electronic communications service may process the data referred to in paragraph 1 to the extent and for the duration necessary for such services or marketing, if the subscriber or user to whom the data relate has given his or her prior consent. Users or subscribers shall be given the possibility to withdraw their consent for the processing of traffic data at any time. 4. The service provider must inform the subscriber or user of the types of traffic data which are processed and of the duration of such processing for the purposes mentioned in paragraph 2 and, prior to obtaining consent, for the purposes mentioned in paragraph 3. 5. Processing of traffic data, in accordance with paragraphs 1, 2, 3 and 4, must be restricted to persons acting under the authority of providers of the public communications networks and publicly available electronic communications services handling billing or traffic management, customer enquiries, fraud detection, marketing electronic communications services or providing a value added service, and must be restricted to what is necessary for the purposes of such activities. 6. Paragraphs 1, 2, 3 and 5 shall apply without prejudice to the possibility for competent bodies to be informed of traffic data in conformity with applicable legislation with a view to settling disputes, in particular interconnection or billing disputes.’
6

Article 9 of that regulation, headed ‘Investigation report and action taken following investigations’, provided: ‘1. On completion of an investigation carried out by [OLAF], the latter shall draw up a report, under the authority of the Director, specifying the facts established, the financial loss, if any, and the findings of the investigation, including the recommendations of the Director of [OLAF] on the action that should be taken. 2. In drawing up such reports, account shall be taken of the procedural requirements laid down in the national law of the Member State concerned. Reports drawn up on that basis shall constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors. They shall be subject to the same evaluation rules as those applicable to administrative reports drawn up by national administrative inspectors and shall be of identical value to such reports. 3. Reports drawn up following an external investigation and any useful related documents shall be sent to the competent authorities of the Member States in question in accordance with the rules relating to external investigations. 4. Reports drawn up following an internal investigation and any useful related documents shall be sent to the institution, body, office or agency concerned. The institution, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investigations, as the results of those investigations warrant, and shall report thereon to the Director of [OLAF], within a deadline laid down by him in the findings of his report.’
1.

Declares that: – by failing to guarantee the independence and impartiality of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland), which is responsible for reviewing decisions issued in disciplinary proceedings against judges (Article 3(5), Article 27 and Article 73 § 1 of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017, in the consolidated version published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (item 825), read in conjunction with Article 9a of the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011, as amended by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017); – by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts (Article 107 § 1 of the ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001, in the version resulting from the successive amendments published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (items 52, 55, 60, 125, 1469 and 1495), and Article 97 §§ 1 and 3 of the Law on the Supreme Court, in the consolidated version published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (item 825)); – by conferring on the President of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court) the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts (Article 110 § 3 and Article 114 § 7 of the Law on the organisation of the ordinary courts, in the version resulting from the successive amendments published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (items 52, 55, 60, 125, 1469 and 1495)) and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal ‘established by law’; and – by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time (second sentence of Article 112b § 5 of the Law on the organisation of the ordinary courts), and by providing that actions relating to the appointment of defence counsel and the taking up of the defence by that counsel do not have a suspensory effect on the course of the disciplinary proceedings (Article 113a of that law) and that the disciplinary tribunal is to conduct the proceedings despite the justified absence of the notified accused judge or his or her defence counsel (Article 115a § 3 of the same law) and, therefore, by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;
143

Thus, the appointment of the judge concerned in breach of the authority attaching to the final order of the Naczelny Sąd Administracyjny (Supreme Administrative Court) of 27 September 2018, without awaiting the Court’s judgment in the case giving rise to the judgment in A.B. and Others, undermined the effectiveness of the system established in Article 267 TFEU. In that regard it is furthermore necessary to note that the Court held, in the operative part of its judgment in A.B. and Others, in reliance, in that respect, on the considerations set out in paragraphs 156 to 165 of that judgment that the second subparagraph of Article 19(1) TEU must be interpreted as precluding provisions amending the state of national law in force under which: – notwithstanding the fact that a candidate for a position as judge at a court such as the Sąd Najwyższy (Supreme Court) lodges an appeal against the decision of a body such as the KRS not to accept his or her application, but to put forward that of other candidates to the President of the Republic, that decision is final inasmuch as it puts forward those other candidates, with the result that that appeal does not preclude the appointment of those other candidates by the President of the Republic and that any annulment of that decision inasmuch as it did not put forward the appellant for appointment may not lead to a fresh assessment of the appellant’s situation for the purposes of any assignment of the position concerned, and – moreover, such an appeal may not be based on an allegation that there was an incorrect assessment of the candidates’ fulfilment of the criteria taken into account when a decision on the presentation of the proposal for appointment was made, where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those provisions are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges thus appointed, by the President of the Republic, on the basis of the decisions of the KRS, to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.
20

Paragraph 353/A of the Büntető Törvénykönyvről szóló 2012. évi C. törvény (Law No C of 2012 establishing the Criminal Code) of 13 July 2012 (Magyar Közlöny 2012/92), in the version applicable for the purposes of the present proceedings (‘the Criminal Code’), under the heading ‘Facilitating illegal immigration’, provides: ‘(1) Anyone who carries out organising activities with a view to (a) enabling asylum proceedings to be brought in Hungary by a person who is not persecuted in his or her country of nationality, country of habitual residence or any other country via which he or she arrived, for reasons of race, nationality, membership of a particular social group, religious or political beliefs, or who does not have a well-founded fear of direct persecution, or (b) assisting a person who is entering or residing in Hungary illegally to obtain a residence permit, shall be placed in confinement, unless he or she has committed a more serious criminal offence. (2) Anyone who provides material resources which enable the criminal offence referred to in subparagraph (1) to be committed or carries out such organising activities on a regular basis shall be liable to a maximum custodial sentence of one year. (3) Anyone who commits the criminal offence referred to in subparagraph (1) (a) in order to obtain a financial gain, (b) by helping more than one person or (c) at a distance of less than eight kilometres from the border or border marker corresponding to the external border within the meaning of Article 2(2) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [(OJ 2016 L 77, p. 1)] shall be liable to the penalty provided for in subparagraph (2). (4) The penalty for the offender of the criminal offence referred to in subparagraph (1) may be reduced without restriction or, in cases which merit special treatment, may be lifted if the offender reveals the circumstances in which the criminal offence was committed at the latest at the point when he or she is under investigation. (5) For the purposes of this Paragraph, organising activities shall include, in particular, for a purpose referred to in subparagraph (1): (a) border surveillance, at the border or a border marker corresponding to the external border of Hungary within the meaning of Article 2(2) of Regulation 2016/399, (b) the drawing up or distribution of information documents or the act of instructing a third party to carry out those activities and (c) the establishment or operation of a network.’