ddrg/super_eurlex huggingface dataset:
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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable persons

(Council Directive 77/388, Art. 4(4), second subpara.)

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Mechanism to simplify declarations and payments of value added tax

(Council Directive 77/388)

Summary

1. The second subparagraph of Article 4(4) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is a provision which, in order to be implemented by a Member State, requires prior consultation by that State of the Advisory Committee on value added tax and the adoption of national legislation authorising persons, in particular companies, established in the territory of the country who, while legally independent, are closely bound to one another by financial, economic and organisational links, no longer to be treated as separate taxable persons for the purposes of value added tax in order to be treated as a single taxable person to whom a single value added tax identification number is allocated and, accordingly, the sole person entitled to submit value added tax declarations. Where there has been no prior consultation of the Advisory Committee on value added tax, national legislation which meets those criteria constitutes legislation adopted in breach of the procedural requirement laid down in the second subparagraph of Article 4(4) of Sixth Directive 77/388.

(see para. 23, operative part 1)

2. The principle of fiscal neutrality does not preclude national legislation which simply treats taxable persons wishing to opt for a mechanism to simplify value added tax declarations and payments differently according to whether the parent company or body has held more than 50% of the share capital or stock of the persons with whom it is linked since at least the beginning of the calendar year preceding that in which the declaration was made or, on the contrary, satisfies those conditions only after that date. Moreover, neither the principle prohibiting the abuse of rights nor the principle of proportionality precludes such legislation.

(see para. 32, operative part 2)
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Approximation of laws – Telecommunications sector – Universal service and users’ rights – Directive 2002/22

(European Parliament and Council Directive 2002/22, Art. 26(3))

Summary

Under Article 26(3) of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services, Member States are to ensure that undertakings which operate public telephone networks make caller location information available to authorities handling emergencies, to the extent technically feasible, for all calls to the single European emergency call number ‘112’.

That provision aims to improve the level of protection and the security of users of ‘112’ services and assist the emergency services in the discharge of their duties.

It follows from the wording and the aim of that provision that it imposes on Member States, subject to technical feasibility, an obligation to achieve a result which is not limited to putting in place an appropriate regulatory framework, but which requires that the location information for all callers to the ‘112’ be actually transmitted to the emergency services.

The failure to acquire or adapt the equipment necessary cannot be regarded as a lack of technical feasibility within the meaning of Article 26(3).

As regards the method to be employed in order to transmit location information on callers to the ‘112’ number, that article does not contain any information in that regard and therefore leaves the Member States to decide the manner in which they wish actually ensure to that that information is transmitted.

(see paras 38-40, 46-47)
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Summary



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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Prohibition on the levying of other domestic taxes which can be characterised as turnover taxes

(Council Directive 77/388, Art. 33(1))

2. Tax provisions – Internal taxation – Excise duty on any sale of motor vehicles before their first registration on national territory

(Art. 90, first para., EC)

Summary

1. Article 33(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680, is to be interpreted as not precluding an excise duty which is charged on all sales of motor vehicles before their first registration on national territory.

Since such an excise duty is charged only on sales transactions relating to motor vehicles before their first registration on Polish territory, it cannot be considered as being charged in a general manner on all transactions relating to goods or services and, therefore, differs from value added tax to such an extent that it cannot be characterised as a turnover tax for the purposes of that article.

(see paras 22-23, 25-26, operative part 1)

2. The first paragraph of Article 90 EC is to be interpreted as precluding an excise duty on all sales of motor vehicles before their first registration on national territory, in so far as the amount of the duty imposed on the sale of second-hand vehicles imported from another Member State exceeds the residual amount of the same duty incorporated into the market value of similar vehicles previously registered in the Member State which introduced that duty. It is for the national court to ascertain whether the national legislation has such an effect.

(see para. 39, operative part 2)
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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax

(Council Directive 77/388, Art. 17(6), second para.)

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable transactions

(Council Directive 77/388, Art. 6(2))

Summary

1. The second subparagraph of Article 17(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as precluding a Member State from applying, after the entry into force of that directive, an exclusion from the right to deduct input value added tax on expenditure in respect of meals provided by company canteens free of charge to business contacts and staff in the course of work meetings, where, at the moment when the directive entered into force, that exclusion was not actually applied to that expenditure because of an administrative practice of taxing services provided by company canteens at cost price, that is to say, the price of the raw materials plus the cost of wages for preparation and sale of the food and drinks and the administration of the canteens, in return for the right to deduct input value added tax in full.

(see para. 44, operative part 1)

2. Article 6(2) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, which, for the purposes of levying value added tax, treats certain transactions for which no consideration is actually received by the taxable person as supplies of goods and provisions of services effected for consideration, must be interpreted in such a way that, on the one hand, it does not cover the provision, free of charge, of meals in company canteens to business contacts in the course of meetings held on the company premises where objective evidence indicates – this being a matter for the referring court to determine – that those meals are provided for strictly business-related purposes. On the other hand, Article 6(2) applies in principle to the provision, free of charge, of meals by a company to its staff on its premises, unless – this likewise being a matter for the referring court to determine – the needs of the company, such as the need to ensure that work meetings are run smoothly and without interruptions, require the employer to ensure that meals are provided. Although the provision of meals to staff is generally for private use and falls within the scope of the personal choice of each member of staff, with which the employer does not interfere, in certain particular circumstances, the provision of meals to employees by the employer is not for the private use of the employees and is not for purposes other than those of the business. The personal advantage which employees derive from such provision appears to be merely accessory to the requirements of the business.

(see para. 57, 62, 65, operative part 2)
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1. Approximation of laws – Medicinal products for human use – Directive 2001/83 – Scope

(European Parliament and Council Directive 2001/83, as amended by Directive 2004/27, Art. 2(2))

2. Approximation of laws – Medicinal products for human use – Directive 2001/83 – Classification of a product as a medicinal product by function – Criteria

(European Parliament and Council Directive 2001/83, as amended by Directive 2004/27, Art. 1(2)(b))

3. Approximation of laws – Medicinal products for human use – Directive 2001/83 – Classification of a product as a medicinal product by function – Criteria

(European Parliament and Council Directive 2001/83, as amended by Directive 2004/27, Art. 1(2)(b))

Summary

1. Article 2(2) of Directive 2001/83 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27, must be interpreted as meaning that Directive 2001/83, as amended, does not apply to a product in respect of which it has not been scientifically established that it is a medicinal product by function, without its being possible to exclude that possibility.

(see para. 29, operative part 1)

2. Article 1(2)(b) of Directive 2001/83 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27, must be interpreted as meaning that, notwithstanding the amendments made to the definition of a medicinal product by Directive 2004/27, the characteristics of the manner in which a product is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail are still relevant to determining whether that product falls within the definition of a medicinal product by function.

(see paras 35, 37, operative part 2)

3. Article 1(2)(b) of Directive 2001/83 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27, must be interpreted as meaning that, apart from the case of substances or combinations of substances intended for the purpose of making a medical diagnosis, a product cannot be regarded as a medicinal product within the meaning of that provision where, having regard to its composition – including its content in active substances – and if used as intended, it is incapable of appreciably restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action. The capacity to restore, correct or modify physiological functions should not lead to the classification as medicinal products by function of products which, while having an effect on the human body, do not significantly affect the metabolism and thus do not strictly modify the way in which it functions.

(see paras 41, 45, operative part 3)
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Tax provisions – Harmonisation of laws – Structures of excise duties on mineral oils – Directive 92/81 – Taxation of energy products and electricity – Directive 2003/96 – Scope

(Council Directives 92/81, Arts 2(3) and 8(1), and 2003/96, Art. 2(3) and (4))

Summary

Articles 2(3) and 8(1) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, as regards the period ending on 31 December 2003, and Article 2(3) and (4) of Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity, as regards the period from 1 January to 31 October 2004, are to be interpreted as meaning that fuel additives which are ‘mineral oils’ within the meaning of Article 2(1) of Directive 92/81 or ‘energy products’ within the meaning of Article 2(1) of Directive 2003/96, but which are not intended for use, offered for sale or used as motor fuel, must be made subject to the taxation regime imposed by those directives.

By the expression ‘[i]n addition to the taxable products listed in paragraph 1’, the first sentence of the first subparagraph of Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 are intended to enshrine, explicitly, the inclusion, in the scope of their provisions, of all products which are intended for use, offered for sale or used as motor fuel, or as an additive or extender in motor fuels, including products which are ‘mineral oils’ or ‘energy products’ within the meaning of those directives.

Moreover, it is clear from the general scheme and purpose of Directives 92/81 and 2003/96, which are intended to introduce a harmonised taxation regime for mineral oils and energy products, that the Community legislature intended to assimilate to motor fuels the additives added to them, whatever their nature, simply because they are added to those fuels, in order to make them subject to the same taxation regime as motor fuels. Consequently, the first sentence of the first subparagraph of Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 are intended to cover any product used as an additive, whether or not it is a ‘mineral oil’ or ‘energy product’ within the meaning of those directives.

(see paras 36, 38, 40, 42, 44, operative part)
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Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Scope – Transfer – Meaning

(Council Directive 2001/23, Art. 1(1)(a) and (b))

Summary

Article 1(1)(a) and (b) 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 meaning that that directive may also apply in a situation where the part of the undertaking or business transferred does not retain its organisational autonomy, provided that the functional link between the various elements of production transferred is preserved, and that that link enables the transferee to use those elements to pursue an identical or analogous economic activity, a matter which it is for the national court to determine.

Regard being had, in particular, to the objective pursued by Directive 2001/23, which seeks to ensure effective protection of employees’ rights in the event of a transfer, an understanding of the identity of the economic entity, according to which that identity depends entirely on the single factor relating to organisational autonomy, cannot be accepted. It would imply that, on account of the sole fact that the transferee decides to break down the part of the undertaking or business which it has acquired and to integrate it into its own structure, that directive could not be applied to that part of the undertaking or business, thus depriving the employees concerned of the protection afforded by that directive.

(see paras 43, 53, operative part)
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State aid – Prohibited – Derogations – Aid which may be considered compatible with the common market

(Art. 87(3) EC; Commission communication 95/C 334/04; Commission communication 98/C 074/09)

Summary

In order to determine whether there has been an increase in employment, the guidelines on aid to employment, under which employment aid intended for the recruitment of additional workers to a company may be declared compatible with the common market, should be interpreted as meaning that the average number of annual working units for the year preceding recruitment should be compared with the average number of annual working units for the year following such recruitment.

Those guidelines should be interpreted in close conjunction with the guidelines on national regional aid, since the notion of job creation is common to both sets of guidelines, which in essence define that notion by referring, at points 17 and 4.12 of the respective texts, to the net increase in the number of jobs compared with an average over a period of time.

The guidelines on national regional aid define more precisely the second term to be used in comparing an undertaking’s workforce in order to ascertain that there has indeed been a net increase in employees in relation to an average over a period of time. First, at point 4.12, they specify that job creation means a net increase in the number of jobs in a particular establishment compared with the average over a period of time, and that any jobs lost during that period must therefore be deducted from the apparent number of jobs created during the same period. Second, the guidelines state, at footnote 33, that the number of jobs corresponds to the number of annual labour units, that is to say the number of persons employed full-time in one year, part-time and seasonal work being annual labour unit fractions.

It follows that, according to the guidelines on national regional aid, job creation means the net increase in the number of persons employed full-time in one year (part-time and seasonal work being annual labour unit fractions) in an establishment compared with the average over a period of time. Accordingly, under those guidelines, the second term in the comparison of the number of employees at the given time is therefore established not by the number of employees of an undertaking on the day of recruitment, but rather by the number of employees calculated in terms of annual labour units over the period of a year.

(see paras 23, 25-27, 32, operative part)
Operative part



Operative part

On those grounds, the Court (First Chamber) hereby:

1. Dismisses the appeal;

2. Orders Antartica Srl to pay the costs.
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1. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Legislation on the price of books

(Art. 28 EC)

2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Legislation on the price of books

(Arts 28 EC, 30 EC and 151 EC)

Summary

1. National provisions which prohibit importers of books from fixing a price lower than the retail price fixed or recommended by the publisher in the State of publication and which, at the same time, permit national publishers freely to fix a minimum price, constitute a ‘measure having equivalent effect to a quantitative restriction on imports’ within the meaning of Article 28 EC.

Such provisions create a distinct scheme for imported books which has the effect of treating products from other Member States less favourably and of restricting the ability of importers of books to compete with their direct competitors. In that regard, those importers and foreign publishers are prevented from fixing minimum retail prices according to the conditions of the import market unlike the publishers of that Member State who can act freely by fixing themselves, for their goods, such minimum retail prices for the national market.

(see paras 21-22, 24, 29, operative part 1)

2. National provisions which prohibit importers of books from fixing a price lower than the retail price fixed or recommended by the publisher in the State of publication and which, at the same time, permit national publishers freely to fix a minimum price, cannot be justified under Articles 30 EC and 151 EC or by overriding requirements in the public interest.

The protection of cultural diversity in general cannot be considered to come within the ‘protection of national treasures possessing artistic, historic or archaeological value’ within the meaning of Article 30 EC. Furthermore, Article 151 EC which provides a framework for the activity of the European Community in the field of culture cannot be invoked as a provision inserting into Community law a justification for any national measure in the field liable to hinder intra-Community trade.

However, the protection of books as cultural objects can be considered as an overriding requirement in the public interest capable of justifying measures restricting the free movement of goods, on condition that those measures are appropriate for achieving the objective fixed and do not go beyond what is necessary to achieve it.

In that regard, the objective of the protection of books as cultural objects can be achieved by measures less restrictive for the importer, for example by allowing the latter or the foreign publisher to fix a retail price for the import market which takes the conditions of that market into account.

(see paras 32-36, operative part 2)
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Subject of the case

Operative part



Keywords

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. 226 EC) (see para. 23)

2. Freedom to provide services – Restrictions (Art. 49 EC) (see paras 31-32, 35-37, 47-53, 55, operative part)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 49 EC – Requirements imposed by national legislation on patent lawyers lawfully established in other Member States in relation to the performance of services, on a temporary basis, in the Member State concerned – Obligation to enrol in the national register, to hold for those purposes professional indemnity insurance, to agree to be bound by all the national disciplinary rules other than those related to professional qualifications and to act in cooperation with a local agent.

Operative part

Operative part

The Court:

1. Declares that, by obliging patent lawyers lawfully established in another Member State who wish temporarily to perform services in Austria to appoint an approved agent resident in Austria, the Republic of Austria has failed to fulfil its obligations under Article 49 EC;

2. Dismisses the action as to the remainder;

3. Orders each party to bear its own costs.