ddrg/super_eurlex huggingface dataset:
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Tax provisions ° Harmonization of laws ° Turnover taxes ° Common system of value added tax ° Taxable amount ° Sales promotion scheme involving, after purchase by the final consumer, reimbursement from the manufacturer on presentation of a voucher issued by the manufacturer ° Taxable basis constituted by the sale price charged by the manufacturer less the amount reimbursed

(Council Directive 77/388, Art. 11A(1)(a) and 11C(1))

Summary

Where

° (a) a manufacturer issues a money-off coupon, which is redeemable at the amount stated on the coupon by or at the expense of the manufacturer in favour of the retailer, (b) the coupon, which is distributed to a potential customer in the course of a sales promotion campaign, may be accepted by the retailer in payment for a specified item of goods, (c) the manufacturer has sold the specified item at the "original supplier' s price" direct to the retailer and (d) the retailer takes the coupon from the customer on sale of the item, presents it to the manufacturer and is paid the stated amount,

or

° (a) the manufacturer, in the course of a promotion scheme, sells items of goods at the "manufacturer' s price" direct to a retailer, (b) a cash-back coupon for an amount stated on the packaging of those items entitles the customer, if he proves purchase of one of those items and satisfies other conditions printed on the coupon, to present the coupon to the manufacturer in return for payment of the stated amount, and (c) a customer purchases such an item from a retailer, presents the coupon to the manufacturer and is paid the stated amount,

Article 11(A)(1)(a) and Article 11(C)(1) of the Sixth Directive are to be interpreted as meaning that the taxable amount serving as a basis for determination of the value added tax payable by the manufacturer is equal to the selling price charged by the manufacturer, less the amount indicated on the coupon and refunded. The same applies if the original supply is made by the manufacturer to a wholesaler rather than directly to a retailer.

That interpretation necessarily follows from the principle that the taxable amount serving as a basis for the VAT to be collected by the tax authorities cannot exceed the consideration actually paid by the final consumer which is the basis for calculating the VAT ultimately borne by him and from the principle of neutrality of the tax whereby within each country similar goods should bear the same tax burden whatever the length of the production and distribution chain.

The VAT system is not disturbed as a result of that interpretation since there is no need to readjust the taxable amount for the intermediate transactions. That amount remains unchanged since, for those transactions, observance of the principle of neutrality is ensured by application of the conditions for deduction set out in the directive, which enable the intermediate links in the distribution chain, such as wholesalers and retailers, to pay to the tax authorities only the part of the VAT representing the difference between the price paid by each to his supplier and the price at which he supplied the goods to his purchaser.
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1. Tax provisions ° Harmonization of laws ° Turnover taxes ° Common system of value added tax ° Economic activities within the meaning of Article 4 of the Sixth Directive ° Hiring out of tangible property ° When included ° Carrying on of activity for the purpose of obtaining income therefrom on a continuing basis ° Criteria

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

2. Tax provisions ° Harmonization of laws ° Turnover taxes ° Common system of value added tax ° Taxable amount ° Private use of business assets bought with a right to deduct ° Expenses incurred during a period when the asset was available for use by the taxable person for non-business purposes included in the taxable amount ° Whether permissible ° Limits

(Council Directive 77/388, Arts 6(2) and 11A(1)(c))

Summary

1. The hiring out of tangible property constitutes exploitation of such property which must be classified as an "economic activity" within the meaning of Article 4(2) of the Sixth Directive (77/388/EEC) on the harmonization of the laws of the Member States relating to turnover taxes if it is done for the purpose of obtaining income therefrom on a continuing basis.

Where, as in the case of a motor caravan, the property is, by reason of its nature, capable of being used for both economic and private purposes, all the circumstances in which it is used will have to be examined in order to determine whether it is actually used for the purpose of obtaining income on a continuing basis. The circumstances in which the property is actually used may be compared with the circumstances in which the corresponding economic activity is usually carried out and, although the result for the user cannot itself make it possible to determine whether the activity is carried on for the purpose of obtaining income on a continuing basis, it is appropriate to take into account the actual length of the period for which the property is hired, the number of customers and the amount of earnings.

2. Article 11A(1)(c) of the Sixth Directive is to be interpreted as meaning that the taxable amount for turnover tax on transactions treated as supplies of services under Article 6(2)(a) of the directive must include expenses which are incurred during a period in which the goods are at the taxable person' s disposal in a way that he can actually use them at any time for non-business purposes and which relate to the goods themselves or which the taxable person is entitled to deduct for VAT purposes. The portion of the expenses to be included must be proportionate to the ratio between the total duration of actual use of the goods and the duration of actual use for non-business purposes.
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1 Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of workers' rights - Directive 77/187 - Scope - Transfer of an undertaking being wound up by the court and continuing to trade - Included

(Council Directive 77/187, Art. 1(1))

2 Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of workers' rights - Directive 77/187 - Employees dismissed shortly before the transfer and not taken on by the transferee - Ability to claim as against the transferee that the dismissal was unlawful - Permissible

(Council Directive 77/187, Art. 4(1))

Summary

3 On a proper construction of Article 1(1) of Directive 77/187 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 businesses, the directive applies in the event of the transfer of an undertaking which is being wound up by the court if the undertaking continues to trade during that procedure.

4 On a proper construction of Article 4(1) of Directive 77/187, which is designed to protect the rights of employees vis-à-vis the transferor as well as vis-à-vis the transferee against a dismissal whose sole justification is the transfer, both the transferor and the transferee are entitled to dismiss employees for economic, technical or organisational reasons.

Employees unlawfully dismissed by the transferor shortly before the undertaking is transferred and not taken on by the transferee may claim, as against the transferee, that their dismissal was unlawful, since their contracts of employment must be regarded as still extant as against the transferee. First, employees dismissed by the transferor before the undertaking is transferred, contrary to Article 4(1) of the directive, must be regarded as still employed by the undertaking on the date of the transfer and, secondly, the rules of the directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees.
Case C-118/94





Associazione Italiana per il World Wildlife Fund and Others

v

Regione Veneto





(Reference for a preliminary rulingfrom the Tribunale Amministrativo Regionale per il Veneto)

«(Council Directive 79/409/EEC on the conservation of wild birds – Hunting – Conditions for exercise of the Member States' power to derogate)»

Opinion of Advocate General Fennelly delivered on 26 October 1995

Judgment of the Court (Fifth Chamber), 7 March 1996

Summary of the Judgment

1.. Preliminary rulings – Jurisdiction of the Court – Limits – Contrived dispute or request for interpretation of provisions of Community law inapplicable in the main proceedings

(EC Treaty, Art. 177)

2.. Environment – Conservation of wild birds – Directive 79/409 – Implementation by the Member States – Conditions for granting derogations from the prohibitions laid down in the directive

(Council Directive 79/409, Arts 5, 7 and 9)

1.

2.
Case C-318/94





Commission of the European Communities

v

Federal Republic of Germany





«(Failure to fulfil obligations – Public works contracts – Failure to publish a tender notice)»

Opinion of Advocate General Elmer delivered on 8 February 1996

Judgment of the Court (Fifth Chamber), 28 March 1996

Summary of the Judgment
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Officials ° Competitions ° Selection board ° Rejection of candidature ° Obligation to state reasons ° Scope ° Observance of the secrecy of the board' s proceedings

(Staff Regulations, Art. 25; Annex III, Art. 6)

Summary

The purpose of the obligation to state the reasons for a decision affecting an individual taken pursuant to the Staff Regulations is, first, to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and, secondly, to make it possible for the decision to be the subject of judicial review. As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must be reconciled with observance of the secrecy surrounding the proceedings of selection boards which precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates.

The obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings, which involves as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates. The first stage, particularly where the competition is based on formal qualifications, consists in comparing the diplomas or other certificates of qualifications provided by the candidates with the qualifications required by the notice of competition.

Since that comparison is made on the basis of objective factors which are moreover known to each candidate in his own case, observance of the secrecy surrounding the proceedings of the selection board does not preclude those objective factors and in particular of the criteria for assessment upon which the selection made at the stage of the preliminary proceedings in the competition was based from being communicated to the candidates concerned. By contrast, the secrecy inherent in the board' s proceedings precludes the communication of the criteria for marking the competition tests, which form an integral part of the comparative assessments made by the jury of the candidates' respective merits.

In those circumstances, communication to the candidates of the marks obtained in the various tests, which reflect the assessments made of them by the selection board, constitutes an adequate statement of the reasons on which the board' s decisions are based.
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Member States ° Obligations ° Implementation of directives ° Failure to fulfil obligations not contested

(EC Treaty, Art. 169)
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1. Community law ° Principles ° Equal treatment ° Discrimination on grounds of nationality ° Prohibition ° Scope ° National provision requiring foreigners bringing legal proceedings to furnish security for costs ° Covered ° Condition

(EC Treaty, Art. 6, first para.)

2. Community law ° Principles ° Equal treatment ° Discrimination on grounds of nationality ° Prohibition ° National provision requiring foreigners bringing legal proceedings to furnish security for costs ° Application in proceedings concerned with the exercise of fundamental freedoms guaranteed by the Treaty ° Not permissible

(EC Treaty, Art. 6, first para.)

Summary

1. A rule of domestic civil procedure of a Member State, requiring nationals and legal persons from another Member State ° if non-residents ° to furnish security for costs where they wish to bring legal proceedings against a national of the first-mentioned State or a company established therein, falls within the scope of application of the EC Treaty, within the meaning of the first paragraph of Article 6 thereof, and is subject to the general principle of non-discrimination laid down by that article in so far as it has an effect, even though indirect, on trade in goods and services between Member States, which is liable to arise in particular where security for costs is required where proceedings are brought to recover payment for the supply of goods.

2. The first paragraph of Article 6 of the EC Treaty precludes a Member State from requiring a legal person established in another Member State, who has brought before one of its own courts an action against one of its own nationals or a company established on its own territory, to lodge security for the costs of those proceedings where no such requirement can be imposed on legal persons established in the first-mentioned State and where the action is concerned with the exercise of fundamental freedoms guaranteed by Community law.
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Member States - Obligations - Implementation of directives - Failure to implement - Justification - Not permissible

(EC Treaty, Art. 169)

Summary

A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive.
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Freedom of movement for persons ° Freedom of establishment ° Companies ° Directive 77/91 ° Change in the capital of a public limited company ° Shareholders' right of pre-emption provided for in the event of an increase in capital by contributions in cash ° National legislation granting a right of pre-emption in the event of an increase in capital by contributions in kind ° Permissibility

(Council Directive 77/91, Art. 29(1) and (4))

Summary

The Second Council Directive (77/91/EEC) on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, in particular Article 29(1) and (4), does not preclude a Member State' s domestic law from granting a right of pre-emption to shareholders in the event of an increase in capital by consideration in kind and from subjecting the legality of a decision withdrawing that right of pre-emption to a substantive review which secures a higher level of protection for shareholders than that required by Article 29(4) of the directive in the case of contributions in cash.

The fact that that provision does not refer to increases in capital by consideration in kind does not mean that the conclusion can be drawn that the Community legislator elected to restrict the shareholders' right of pre-emption to increases in capital by consideration in cash, thereby precluding Member States from extending it also to increases in capital by consideration in kind. On the contrary, since the Second Directive merely prescribes a right of pre-emption in the event of increases in capital by consideration in cash, whilst refraining from laying down rules on the complex situation ° unknown in most Member States ° where the right of pre -emption is exercised in the event of increases in capital by consideration in kind, it left Member States at liberty to provide or not to provide for a right of pre-emption in the latter case. In addition, a national rule extending the principle that shareholders should have a right of pre-emption to increases in capital by consideration in kind, while providing for the possibility of restricting or withdrawing that right in certain circumstances, is consistent with one of the aims of the Second Directive, namely that of ensuring more effective protection for shareholders.
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1 Transport - Inland waterway transport - Structural improvements - Contribution to the Scrapping Fund - Commission decision rejecting an application for exemption - Decision not contested by its addressee under the fourth paragraph of Article 173 of the Treaty - Validity of the decision then contested before the national court in proceedings challenging the national measures implementing it - Challenge to be rejected by the national court

(EC Treaty, Art. 173, fourth para.; Council Regulation No 1101/89, Art. 8(3)(c))

2 Preliminary rulings - Reference to the Court - Questions designed to enable the national court to rule on the validity of a Commission decision adopted for the purpose of implementing a regulation - Whether the Court can construe the questions as relating to the interpretation of the regulation - No

(EC Treaty, Art. 177; EC Statute of the Court of Justice, Art. 20)

Summary

3 Where a Commission decision has been addressed to the owner of a vessel, finding that his vessel is not a specialized vessel, within the meaning of Article 8(3)(c) of Regulation No 1101/89 on structural improvements in inland waterway transport, qualifying for exemption from the special contribution to the Scrapping Fund, and where the owner, having failed to apply within the prescribed time-limit for annulment of that decision under the fourth paragraph of Article 173 of the Treaty, brings an action before a national court challenging the implementation of the Commission's decision by the national authorities on the ground that it is unlawful, that decision is binding on the national court. To find otherwise would enable the addressee of the decision to circumvent the definitive nature which that decision necessarily assumes upon expiry of the time-limit for bringing proceedings, the very purpose of which is to ensure legal certainty by preventing Community measures which produce legal effects from being called in question indefinitely.

4 Where a national court refers for a preliminary ruling questions relating exclusively, either directly or indirectly, to the validity of a Commission decision which is binding on that court, those questions cannot be construed as concerning the definition of the scope of the regulation on which the Commission based its decision. To alter the substance of the questions referred by the national court would be incompatible with the Court's function under Article 177 of the Treaty and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations, having regard to the fact that, under Article 20 of the EC Statute of the Court of Justice, only the order of the referring court is notified to the parties concerned.
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1 Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Prohibition against marketing bread not meeting certain standards concerning maximum moisture content, minimum ash content and presence of bran - Not permissible - Justification - Protection of public health - None

(EC Treaty, Arts 30 and 36)

2 Community law - Direct effect - Conflict between Community law and a national law - Obligations and powers of the national court seised - Disapplication of national law

Summary

3 The application to products lawfully manufactured and marketed in other Member States of national legislation prohibiting the marketing of bread with a moisture content exceeding 34% or an ash content lower than 1.40% or containing bran constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty which cannot, in the absence of any evidence to that effect, be regarded as justified under Article 36 of the Treaty by the need to protect public health.

4 The national court is under a duty, when asked to apply a national law which is incompatible with Article 30 of the Treaty, to give full effect to that article by disapplying any such law on its own initiative.
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Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Temporal application - Transfer of an undertaking before the directive produced legal effects in the Member State concerned - Excluded

(Council Directive 77/187)

Summary

Directive 77/187 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 businesses cannot be relied on in relation to a transfer of an undertaking which took place before the directive had begun to produce legal effects in the Member State concerned.
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Competition - Community rules - Undertaking - Definition - Public law body entrusted by the public authorities with anti-pollution surveillance in an oil port - Excluded

(EC Treaty, Art. 86)

Summary

Article 86 of the Treaty must be interpreted as not being applicable to anti-pollution surveillance with which a body governed by private law has been entrusted by the public authorities in an oil port of a Member State, even where port users must pay dues to finance that activity.

Such an activity is connected by its nature, its aim and the rules to which it is subject with the exercise of powers relating to the protection of the environment which are typically those of a public authority. It is not of an economic nature justifying the application of the Treaty rules on competition