ddrg/super_eurlex huggingface dataset:
7

Part One of the CN consists of a number of preliminary provisions. In that part, within Section I, which contains the General Rules, Sub-Section A, entitled ‘General rules for the interpretation of the [CN]’ (‘the General Rules’) provides: ‘Classification of goods in the [CN] shall be governed by the following principles: 1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. … 3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: (a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods; (b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable; (c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. …’
6

Article 8(3a) of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (OJ 2011 L 64, p. 1), as amended by Council Directive 2014/107/EU of 9 December 2014 (OJ 2014 L 359, p. 1), (‘Directive 2011/16’) provides: ‘Each Member State shall take the necessary measures to require its Reporting Financial Institutions to perform the reporting and due diligence rules included in Annexes I and II and to ensure effective implementation of, and compliance with, such rules in accordance with Section IX of Annex I. Pursuant to the applicable reporting and due diligence rules contained in Annexes I and II, the competent authority of each Member State shall, by automatic exchange, communicate within the deadline laid down in point (b) of paragraph 6 to the competent authority of any other Member State, the following information regarding taxable periods as from 1 January 2016 concerning a Reportable Account: (a) the name, address, [tax identification number(s) (TIN)] and date and place of birth (in the case of an individual) of each Reportable Person that is an Account Holder of the account and, in the case of any Entity that is an Account Holder and that, after application of due diligence rules consistent with the Annexes, is identified as having one or more Controlling Persons that is a Reportable Person, the name, address, and TIN(s) of the Entity and the name, address, TIN(s) and date and place of birth of each Reportable Person; (b) the account number (or functional equivalent in the absence of an account number); (c) the name and identifying number (if any) of the Reporting Financial Institution; (d) the account balance or value (including, in the case of a Cash Value Insurance Contract or Annuity Contract, the Cash Value or surrender value) as of the end of the relevant calendar year or other appropriate reporting period or, if the account was closed during such year or period, the closure of the account; …’
39

In those circumstances the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 1(2)(e) of the Rome Convention to be interpreted as meaning that the “company law” excepted area includes: (a) reorganisations such as mergers and divisions, and (b) in connection with reorganisations, the creditor protection provision in Article 15 of Directive 78/855? (2) Is the conclusion the same if Article 15 of Directive 2011/35 is applicable? (3) If the replies to Questions 1 and 2 are in the affirmative, does the excepted area in Article 1(2)(d) of the Rome I Regulation — as the successor provision to Article 1(2)(e) of the Rome Convention — lead to the same conclusion, or must it be interpreted differently? If so, how? (4) Are any requirements concerning the treatment of mergers in relation to conflict of laws to be inferred from European primary law such as the freedom of establishment under Article 49 TFEU, the freedom to provide services under Article 56 TFEU and the free movement of capital and payments under Article 63 TFEU, in particular as to whether the national law of the State of the company being acquired or the national law of the acquiring company is to be applied? (5) If Question 4 is answered in the negative: are any principles concerning treatment in relation to conflict of laws to be inferred from European secondary law such as Directive 2005/56, Directive 2011/35 or Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the Treaty concerning the division of public limited liability companies (OJ 1982 L 378, p. 47), in particular as to whether the national law of the State of the company being acquired or the national law of the acquiring company is to be applied, or are national conflict-of-law rules free to decide to which substantive national law reference should be made? (6) Is Article 15 of Directive 78/855 to be interpreted as meaning that the issuer is entitled, as against holders of securities, other than shares, to which special rights are attached, particularly in the case of subordinated loans, to terminate the legal relationship and to pay off the persons entitled in the case of a cross-border merger? (7) May the same conclusion be reached by applying Article 15 of Directive 2011/35?’
4

Article 4 of that regulation, entitled ‘The schedules facilitator and the coordinator’, is worded as follows: ‘1. The Member State responsible for a ... coordinated airport shall ensure the appointment of a qualified natural or legal person as ... airport coordinator ... after having consulted the air carriers using the airport regularly, their representative organisations and the managing body of the airport and the coordination committee, where such a committee exists. The same ... coordinator may be appointed for more than one airport. 2. The Member State responsible for a ... coordinated airport shall ensure: ... (b) the independence of the coordinator at a coordinated airport by separating the coordinator functionally from any single interested party. The system of financing the coordinators’ activities shall be such as to guarantee the coordinator’s independent status; (c) that the coordinator acts according to this Regulation in a neutral, non-discriminatory and transparent way. ... 5. The coordinator shall be the sole person responsible for the allocation of slots. He shall allocate the slots in accordance with the provisions of this Regulation and shall make provision so that, in an emergency, slots can also be allocated outside office hours. 6. ... The coordinator shall monitor the conformity of air carriers’ operations with the slots allocated to them. These conformity checks shall be carried out in cooperation with the managing body of the airport and with the air traffic control authorities and shall take into account the time and other relevant parameters relating to the airport concerned. ... ... 8. The coordinator shall on request and within a reasonable time make available free of charge for review to interested parties, in particular to members or observers of the coordination committee, either in written form or in any other easily accessible form, the following information: (a) historical slots by airline, chronologically, for all air carriers at the airport, (b) requested slots (initial submissions), by air carriers and chronologically, for all air carriers, (c) all allocated slots, and outstanding slot requests, listed individually in chronological order, by air carriers, for all air carriers, (d) remaining available slots, (e) full details on the criteria being used in the allocation.’
6

Paragraph 21a of the Wasserrechtsgesetz (Water Law), in the version thereof applicable to the present case (‘the WRG’), reads as follows: ‘(1) If, after authorisation is granted, it appears inter alia in the light of the results of the inventory (Paragraph 55d) that, despite compliance with the conditions and rules laid down in the authorisation decision or other provisions, that the public interests (Paragraph 105) are not sufficiently protected, the authority must, subject to the second sentence of Paragraph 52(2), impose the other conditions or the necessary conditions, in accordance with the current state of technology (Paragraph 12a) in order to achieve sufficient protection; fix adaptation objectives and order the submission of relevant project documents on adaptation; restrict the type and extent of water use, either temporarily or enduringly, or prohibit water use, either temporarily or enduringly. (2) The authority must allow reasonable time limits in order to allow for the execution of orders referred to in subparagraph 1 and for the planning of the necessary adaptation measures and the submission of the relevant documents; as regards the required content of the project documents, Paragraph 103 shall apply. Those time limits must be extended where the party subject to the obligation proves that it was impossible for him or her to comply with the time limit, without any fault on his or her part. A duly submitted request for extension shall have suspensive effect for the purposes of the time limit. If the time limit expires without result, Paragraph 27(4) shall apply mutatis mutandis. (3) The authority may opt not to impose measures under subparagraph 1 if they are disproportionate, in which case the following principles shall also apply: (a) the costs of implementing those measures must not be disproportionate in relation to the effect sought, taking into account the type, quantity and hazard level of the effects and of the harm due to water use, and also the duration of use, profitability and technical specificity of water use; (b) in the event of harm to existing rights, only the least stringent means in relation to the objective pursued will be chosen; (c) different intervention measures may be imposed successively. ... (4) Where there is an authorised restoration plan (Paragraph 92) or a restoration programme (Paragraph 33d), the measures referred to in subparagraph 1 may not go beyond what is provided for under that plan or programme. (5) Subparagraphs 1 to 4 shall apply mutatis mutandis to other facilities and authorisations covered under the present federal law.’
37

In those circumstances the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Does the relationship of worker member in a cooperative such as that regulated by Article 80 of Law 27/1999 on cooperatives and Article 89 of Law 8/2003 on cooperatives of the Autonomous Community of Valencia — a relationship which, although characterised by the national legislation and case-law as “associative” (one of membership), could be considered to amount to an “employment contract” under EU law — come within the scope of Directive 2010/18 relating to the [revised Framework Agreement] as defined in Clause 1(2) of [that Framework Agreement]? If that first question is answered in the negative, a second, subsidiary question arises. 2. Must Clause 8(2) of the [revised Framework Agreement] and, more specifically, the provision in accordance with which “implementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement”, be interpreted as meaning that, should a Member State fail to implement Directive 2010/18 expressly, the scope of the protection which that State itself defined in transposing the earlier Directive 96/34 may not be reduced? Only if the answer to either of those two questions is in the affirmative, Directive 2010/18 being considered applicable to an ‘associative-work’ relationship such as that of the applicant, will the other questions which follow be justified, for the reasons set out below: 3. Must Clause 6 of the new [revised Framework Agreement], incorporated in Directive 2010/18, be interpreted as meaning that the national implementing provision or agreement must incorporate and make explicit the obligations of employers to “consider” and “respond to” the requests of its workers for “changes to their working hours and/or patterns”, when returning from parental leave, taking into account both employers’ and workers’ needs, and that the implementing mandate cannot be understood to have been complied with by means of national rules — legislative or those of cooperatives — which make the effectiveness of such a right conditional solely upon the mere discretion of the employer as to whether or not to grant such requests? 4. Must it be found [that] Clause 6 [of the revised Framework Agreement] — in the light of Article 3 of Directive 2010/18 and the “Final provisions” in Clause 8 of that Agreement — has, where there has been a failure to transpose, “horizontal direct effect” as a result of being a minimum European Union standard?’
37

Although the principle of equal treatment and the obligation of transparency must be guaranteed even in regard to specific public contracts, this does not mean that the particular aspects of those contracts cannot be taken into account. That legal imperative and that practical necessity are reconciled, first, through strict compliance with the conditions of a contract as they were laid down in the contract documents up to the end of the implementation phase of that contract, but also, second, through the possibility of making express provision, in those documents, for the option for the contracting authority to adjust certain conditions, even material ones, of that contract after it has been awarded. By expressly providing for that option and setting the rules for the application thereof in those documents, the contracting authority ensures that all economic operators interested in participating in the procurement procedure are aware of that possibility from the outset and are therefore on an equal footing when formulating their respective tenders (see, by analogy, judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraphs 112, 115, 117 and 118).
7

Directive 2004/18 also sets out qualitative selection criteria which make it possible to determine the candidates admitted to participate in the procedure for the award of a public contract. Article 48 of that directive, relating to technical and professional abilities, is worded as follows: ‘… (2) Evidence of the economic operators’ technical abilities may be furnished by one or more of the following means according to the nature, quantity or importance, and use of the works, supplies or services: … (b) an indication of the technicians or technical bodies involved, whether or not belonging directly to the economic operator’s undertaking, especially those responsible for quality control and, in the case of public works contracts, those upon whom the contractor can call in order to carry out the work; … (i) an indication of the proportion of the contract which the services provider intends possibly to subcontract; … (3) An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary for the execution of the contract, for example, by producing an undertaking by those entities to place the necessary resources at the disposal of the economic operator. … (5) In procedures for awarding public contracts having as their object supplies requiring siting or installation work, the provision of services and/or the execution of works, the ability of economic operators to provide the service or to execute the installation or the work may be evaluated in particular with regard to their skills, efficiency, experience and reliability. (6) The contracting authority shall specify, in the notice or in the invitation to tender, which references under paragraph 2 it wishes to receive.’
4

According to Article 10 of the CIRS, entitled ‘Capital gains’: ‘1. Capital gains are any gains, other than those regarded as business or professional income, capital income or income from immovable property, arising from: (a) the transfer for valuable consideration of rights in rem in immovable property or from the use of any private assets for the purposes of the business or professional activities pursued on an individual basis by the owner of such assets; (b) the transfer for valuable consideration of shares, including their redemption and depreciation with reduction of capital, and of other securities, and the value attributed to partners following distribution, which is considered a capital gain for the purposes of Article 81 of the [Código do Imposto sobre o Rendimento das Pessoas Coletivas (Corporate Taxation Code)]; … 3. Gains shall be deemed to have arisen at the time when any of the acts referred to in paragraph 1 is effected … … 4. A gain that is subject to personal income tax shall be made up of: (a) the difference between the realisation value and the acquisition value, less any part that may be treated as capital income, in the cases referred to at (a), (b) and (c) in paragraph 1; … 8. In the case of an exchange of shares on the terms referred to in Article 73(5) and Article 77(2) of the Corporate Taxation Code, the allocation, by virtue of that exchange, of the securities representing the company’s capital to the members of the company acquired shall not entail taxation of those securities if they continue to value the new shares at the level of the old ones for tax purposes. That value shall be determined in accordance with the provisions of this code, without prejudice to the taxation of any cash equivalent values that may be assigned to them. 9. In the case referred to in the foregoing paragraph, it should also be noted that: (a) if a member ceases to have the status of resident in the Portuguese territory, the amount which, pursuant to paragraph 8, was not taxed when the shares were exchanged and which represents the difference between the actual value of the shares received and the value of the older shares at the time of their purchase, determined in accordance with the provisions of this code, shall be reckoned as a capital gain for the purposes of taxation for the year in which resident status is lost; (b) Article 73(10) of the Corporate Taxation Code shall apply mutatis mutandis. 10. The provisions of paragraphs 8 and 9 shall also apply mutatis mutandis to the allocation of shares in the case of mergers or the division of companies to which Article 74 of the Corporate Taxation Code. …’
4.

Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the findings made by the General Court as to whether the facts relied on without having been proven are well known — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) (see para. 46)
3.

Appeal — Grounds — Review by the Court of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(2) TFEU; Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 64(3)(d)) (see paras 91-94)
The Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1214/2007, must be interpreted as meaning that goods such as LED bulbs fall, subject to the referring court’s assessment of all the facts before it, under heading 8543 of that nomenclature.

(see para. 59, operative part)
Judgment of the Court (Sixth Chamber) of 3 March 2016 —

Teva Pharma and Teva Pharmaceuticals Europe v EMA

(Case C‑138/15 P) ( 1 )

‛Appeal — Orphan medicinal products — Regulation (EC) No 141/2000 — Regulation (EC) No 847/2000 — Refusal to grant marketing authorisation for the generic version of the orphan medicinal product ‘imatinib mesylate’’

Approximation of laws — Uniform legislation — Medicinal products for human use — Orphan medicinal products — Medicinal products similar to an orphan medicinal product already authorised and having the same therapeutic indication — Placing on the market — Market exclusivity — Scope (European Parliament and Council Regulation No 141/2000, Arts 3(1) and 8(1) to (3); Commission Regulation No 847/2000) (see paras 31-33, 38, 39)

Operative part

The Court:

1. Dismisses the appeal;

2. Orders Teva Pharma BV and Teva Pharmaceuticals Europe BV to bear their own costs and to pay the costs incurred by the European Medicines Agency (EMA);

3. Orders the European Commission to bear its own costs.

( 1 ) OJ C 190, 8.6.2015.
Furthermore, and read in the light of Article 16(a) of that directive, pursuant to which Member States must take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished, Article 3(1)(b) of that directive must be taken to mean that it also covers a tax provision, adopted with the aim of promoting access to training for young people and, consequently, improving their position on the labour market.

Article 3(1)(b) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a taxation scheme which provides that the tax treatment of vocational training costs incurred by a person differs depending on his age, comes within the material scope of that directive to the extent to which the scheme is designed to improve access to training for young people.

Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a taxation scheme which allows persons who have not yet reached the age of 30 to deduct in full, under certain conditions, vocational training costs from their taxable income, whereas that right to deduct is restricted in the case of persons who have reached that age, in so far as, first, that scheme is objectively and reasonably justified by a legitimate objective relating to employment and labour market policy and, second, the means of attaining that objective are appropriate and necessary. It is for the referring court to determine whether that is the case.

Indeed, the objective of promoting the position of young people on the labour market in order to promote their vocational integration or ensure their protection can be regarded as legitimate for the purposes of Article 6(1) of Directive 2000/78.

Moreover, as regards the appropriateness of a taxation scheme, it is common ground that such a scheme is capable of improving the position of young people on the labour market in that, for them, it amounts to an incentive to pursue vocational training.

Finally, as regards the strictly necessary nature of the scheme, it does not appear, account being taken of the broad discretion enjoyed by the Member States and both sides of industry in the field of social policy and employment, that, by adopting such a taxation scheme, the national legislator went beyond what is necessary to attain the objective pursued.

(see paras 27, 29, 34, 35, operative part 2)