ddrg/super_eurlex huggingface dataset:
Keywords

Summary



Keywords

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a contract — Member States’ discretion — Non-performance of obligations relating to payment of social security — Lawfulness — Conditions

(Arts 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/18, Art. 45(2))

Summary

Articles 49 TFEU and 56 TFEU and the principle of proportionality must be interpreted as not precluding national legislation which, with regard to public works contracts the value of which is below the threshold laid down in Article 7(c) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1177/2009, requires the contracting authorities to exclude from the award procedure for such a contract a tenderer who has committed an infringement relating to social security contributions where the difference between the sums owed and those paid exceeds EUR 100 and is greater than 5% of the sums owed.

Although such a national provision which is capable of excluding tenderers from participating in a procurement procedure with a certain cross-border interest amounts to a restriction within the meaning of Articles 49 TFEU and 56 TFEU, it may be justified in so far as it pursues a legitimate objective in the public interest and to the extent that it complies with the principle of proportionality. The pursuance of such a legitimate objective includes the indication of the lack of reliability, diligence and responsibility by an economic operator in complying with its legal and social obligations. Such an indication is, moreover, in keeping with the principles of proportionality as the establishment of a precise threshold for the exclusion from procurement procedures, such as that defined by the national legislation at issue, is based on objective, non-discriminatory criteria known in advance. Those criteria ensure not only equal treatment of tenderers but also legal certainty, a principle which must be complied with for a restrictive measure to be proportionate.

Lastly, as regards the level of that threshold for exclusion, Article 45(2) of Directive 2004/18 does not provide for uniform application at EU level of the grounds of exclusion it mentions and allows the Member States to make the criteria laid down therein less onerous or more flexible. Article 45(2)(e) of Directive 2004/18 allows Member States to exclude from participation in a public contract any economic operator which has failed to fulfil its obligations relating to the payment of social security contributions without any minimum amount of outstanding contributions being set.

(see paras 30-37, 39, 41, operative part)
Case C‑589/12

Commissioners for Her Majesty’s Revenue & Customs

v

GMAC UK plc

(Request for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber))

‛Reference for a preliminary ruling — VAT — Sixth Directive 77/388/EEC — Article 11C(1), first subparagraph — Direct effect — Reduction of the taxable amount — Two transactions concerning the same goods — Supply of goods — Cars, sold on a hire purchase basis, repossessed and sold at auction — Abuse of rights’

Summary — Judgment of the Court (Second Chamber), 3 September 2014

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Reduction in the case of total or partial non-payment — Termination of a hire purchase contract relating to a motor car following which the car is sold — Member State preventing the taxable person from invoking the direct effect of the directive with regard to such a reduction — Not permissible — Conditions

(Council Directive 77/388, Art. 11C(1), first subpara.)

The first subparagraph of Article 11C(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that, in the case of termination of a hire purchase contract relating to a motor car following which the car is sold, a Member State may not prevent a taxable person from invoking the direct effect of that provision in respect of one transaction by arguing that that person may rely on the provisions of national law in relation to another transaction concerning the same goods and that the cumulative application of those provisions would produce an overall fiscal result which neither national law nor that directive, applied separately to those transactions, produces or is intended to produce.

The first subparagraph of Article 11C(1) of the Sixth Directive has direct effect, so that the question as to whether a taxable person may rely, after supplying goods under a hire purchase contract, on the right which that provision confers on it to obtain a reduction in the taxable amount depends on whether its customers fail to perform in whole or in part their payment obligation under that contract.

Therefore, in the event of total or partial non-payment, the amount of the tax base of the hire purchase contract for a car must be adjusted by reference to the consideration actually received by the taxable person under that contract. The consideration received by that taxable person which is paid by a third party in the context of a different transaction — in the event the sale at auction of the car returned by the hire purchase customer — has no effect on the conclusion that the taxable person may rely on the direct effect of the first subparagraph of Article 11C(1) of the Sixth Directive in the context of the hire purchase contract.

(see paras 36, 42, 49, operative part)
A decision of the Council and the Representatives of the Governments of the Member States authorising the joint participation of the Union and its Member States in the negotiations of an international agreement combines the authorisations to negotiate issued (i) to the Commission and (ii) to the Member States and to the Presidency of the Council. It necessarily follows that the Council was involved in the grant of both of those authorisations. Therefore, even if the action is partly directed against a decision adopted by the Representatives of the Member States in their capacity as Representatives of their Governments, and not as members of the Council, that action is admissible with regard to the contested decision as a whole.

There is a risk that common EU rules might be adversely affected by international commitments, or that the scope of those rules might be altered, which is such as to justify an exclusive external competence of the European Union, where those commitments fall within the scope of those rules or, at least, within an area which is already largely covered by those rules.

The content of the negotiations for a Convention of the Council of Europe on the protection of neighbouring rights of broadcasting organisations, as is defined by the 2002 Recommendation, the 2008 Memorandum and the 2010 Report, falls within an area covered to a large extent by common EU rules. It is clear from Directives 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, 2004/48 on the enforcement of intellectual property rights, 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, and 2006/116 on the term of protection of copyright and certain related rights, that those rights are the subject, in EU law, of a harmonised legal framework which seeks, in particular, to ensure the proper functioning of the internal market and which established a regime with high and homogeneous protection for broadcasting organisations.

Consequently, those negotiations may affect common EU rules or alter their scope. Therefore, those negotiations fall within the exclusive competence of the European Union.

(see paras 68, 70, 79, 102)
Under Articles 15 and 22(1) of Regulation No 2419/2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Regulation No 3508/92 it is for the Member States to adopt the measures they deem capable of guaranteeing the effectiveness of the controls and, therefore, the accuracy of the measurements taken using remote sensing. In its check of the Member States’ compliance with the requirement of accuracy, the Commission cannot be required to use solely the method used by a Member State, especially if it considers that a different method offers greater guarantees of accuracy. To require the Commission in that context to use the same measurement method as that used by the authorities of the Member State concerned is liable to lead to a weakening of the two-tier control system put in place by Regulation No 2419/2001.

Consequently, it is only if the Commission is free to choose the method for controlling the measurements taken by the national authorities that it deems most appropriate that it is liable to conduct an effective examination of the reliability of national control systems.

(see paras 42, 45-47)
19

Amended following the judgment in Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, Article 4.17a of the decree of 2000, which entered into force on 1 June 2011, states: ‘1. The competence, referred to in Article 50(1) of the [law on foreign nationals], as part of the effort to combat illegal residence following crossing of borders, to stop persons for the purpose of determining their identity, nationality and residence status, shall be exercised exclusively in the context of the monitoring of foreign nationals: (a) at airports on the arrival of flights from the Schengen area; (b) in trains for at most thirty minutes after crossing the common land border with Belgium or Germany or, if during that period the second station after the border crossing has not yet been reached, up to at most the second station after the border crossing; (c) on roads and waterways in an area of up to 20 kilometres from the common land border with Belgium or Germany. 2. The monitoring referred to in subsection 1 shall be carried out on the basis of information or data gained from experience regarding illegal residence following the crossing of borders. In addition, monitoring may be carried out to a limited degree with a view to acquiring information on such illegal residence. 3. The monitoring referred to in subsection 1(a) shall be exercised at most seven times per week in respect of flights on the same route, on a maximum of one-third of the total number of planned flights per month on that route. In the context of that control, only some of the passengers on a flight shall be stopped. 4. The monitoring referred to in subsection 1(b) shall be carried out daily on a maximum of two trains per route and on a maximum of eight trains in total, and in a maximum of two train compartments per train. 5. The monitoring referred to in subsection 1(c) shall be carried out on the same road or waterway for a maximum of 90 hours per month and a maximum of six hours per day. In the context of that monitoring, only some of the passing vehicles shall be stopped.’
35

In those circumstances the Curtea de Apel Bucureşti decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Do the provisions of Article 2(2)(a) of [Directive 2000/78] apply where a shareholder of a football club who presents himself as, and is considered in the mass media as, playing the leading role (or “patron”) of that football club makes a statement to the mass media in the following terms: “Not even if I had to close [FC Steaua] down would I accept a homosexual on the team. Obviously people will talk, but how could anyone write something like that and, what’s more, put it on the front page … Maybe he’s [the football player X] not a homosexual … But what if he is? I said to an uncle of mine who didn’t believe in Satan or in Christ. I said to him: “Let’s say God doesn’t exist. But suppose he does? What do you lose by taking communion? Wouldn’t it be good to go to Heaven?” He said I was right. A month before he died he took communion. May God forgive him. There’s no room for gays in my family and [FC Steaua] is my family. It would be better to play with a junior rather than someone who was gay. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whomever I choose.” “Not even if I had to close [FC Steaua] down would I accept a homosexual on the team. Maybe he’s not a homosexual. But what if he is? There’s no room for gays in my family, and [FC Steaua] is my family. Rather than having a homosexual on the side it would be better to have a junior player. This isn’t discrimination: no one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose. Even if God told me in a dream that it was 100 percent certain that X wasn’t a homosexual I still wouldn’t take him. Too much has been written in the papers about his being a homosexual. Even if [player X’s current club] gave him to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drinker … but if he’s a homosexual I don’t want to know about him.” (2) To what extent may the abovementioned statements be regarded as “facts from which it may be presumed that there has been direct or indirect discrimination” within the meaning of Article 10(1) of Directive 2000/78 ... as regards the defendant [FC Steaua]? (3) To what extent would there be probatio diabolica if the burden of proof referred to in Article 10(1) of [Directive 2000/78] were to be reversed in this case and the defendant [FC Steaua] were required to demonstrate that there has been no breach of the principle of equal treatment and, in particular, that recruitment is unconnected with sexual orientation? (4) Does the fact that it is not possible to impose a fine in cases of discrimination after the expiry of the limitation period of six months from the date of the relevant fact, laid down in Article 13(1) of [GD No 2/200]1 on the legal regime for sanctions, conflict with Article 17 of [Directive 2000/78] given that sanctions, in cases of discrimination, must be effective, proportionate and dissuasive?’
39

In light of all of the foregoing considerations, the answer to the questions referred is that Article 132(1)(b) and (c) of the VAT Directive must be interpreted as meaning that: — supplies of services such as those at issue in the main proceedings, consisting in plastic surgery and other cosmetic treatments, fall within the concepts of ‘medical care’ and ‘the provision of medical care’ within the meaning of Article 132(1)(b) and (c) where those services are intended to diagnose, treat or cure diseases or health disorders or to protect, maintain or restore human health; — the subjective understanding that the person who undergoes plastic surgery or a cosmetic treatment has of it is not in itself decisive in order to determine whether that intervention has a therapeutic purpose; — the fact that services such as those at issue in the main proceedings are supplied or undertaken by a licensed member of the medical profession or that the purpose of such services is determined by such a professional may influence the assessment of whether interventions such as those at issue in the main proceedings fall within the concept of ‘medical care’ or ‘the provision of medical care’ within the meaning of Article 132(1)(b) and (c) of the VAT Directive respectively; — in order to determine whether supplies of services such as those at issue in the main proceedings are exempt from VAT pursuant to Article 132(1)(b) or (c) of the VAT Directive, all the requirements laid down in subparagraphs 1(b) or (c) thereof must be taken into account as well as the other relevant provisions in Title IX, Chapters 1 and 2 of that directive such as, as far as concerns Article 132(1)(b), Articles 131, 133 and 134 thereof.
21

In the light of those considerations the Hovrătten för Nedre Norrland decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling: ‘(1) Are Articles 5(1) and 5(3) of [Regulation No 44/2001] to be interpreted in such a way that they constitute a comprehensive derogation from the main rule of Article 2 in compensation disputes? (2) Is the term “matters relating to tort, delict or quasi-delict” in Article 5(3) of [Regulation No 44/2001] to be interpreted in such a way that the provision covers the action of a creditor against a director of a company if the action seeks to hold the director liable for the company’s debts where the director has failed to make formal arrangements to monitor the company’s financial situation and instead has continued to carry on the business of the company and has burdened it with further debts? (3) Is the term “matters relating to tort, delict or quasi-delict” in Article 5(3) of [Regulation No 44/2001] to be interpreted in such a way that the provision covers an action of a creditor against a shareholder of a company if the action seeks to make the shareholder liable for the company’s debts by reason of the fact that he allowed the company to continue to carry on business despite the fact that it was undercapitalised and the company is forced to go into liquidation? (4) Is the term “matters relating to tort, delict or quasi-delict” in Article 5(3) of [Regulation No 44/2001] to be interpreted in such a way that it covers the action of a creditor against a shareholder of a company who has undertaken to discharge a company’s debts? (5) If the answer to [question 2] is in the affirmative, is any harm arising deemed to have occurred in the Netherlands or in Sweden, if the director is domiciled in the Netherlands and the breaches of the board’s obligations relate to a Swedish company? (6) If the answer to [questions 3 or 4] is in the affirmative, is any harm arising deemed to have occurred in the Netherlands or in Sweden if the shareholder in question is domiciled in the Netherlands and the company is Swedish? (7) If either Article 5(1) or 5(3) of [Regulation No 44/2001] are applicable in any of the situations described above, is it of any relevance to the application of those provisions if a claim has been transferred from the original creditor to another person?’
22

In those circumstances, the Administrativen sad Sofia-grad decided to stay the proceedings and request a preliminary ruling from the Court on the following questions: ‘(1) How is the concept “artificially created conditions” to be interpreted in the light of the provision contained in Article 4(8) of Regulation No 65/2011? (2) Is Article 4(8) of Regulation No 65/2011 to be interpreted as being incompatible with Article 7(2) of the Bulgarian Regulation No 29 …, according to which financial aid is not to be granted to applicants/beneficiaries who are found to be functionally dependent and/or who have artificially created the conditions required for obtaining aid, with a view to obtaining an advantage contrary to the objectives of the measure? (3) Is Article 4(8) of Regulation No 65/2011 to be interpreted as being incompatible with the case-law in the Republic of Bulgaria, according to which the conditions required for obtaining an advantage contrary to the objectives of the measure have been artificially created if there is a legal connection between the applicants? (4) Does the use by different applicants who are independent legal persons of independent neighbouring sites which were part of a single property before the application was submitted, and does the actual connection that is found to exist, for example applicants having the same agents, suppliers, executives, place of business and address, constitute “artificially created conditions”? (5) Is it necessary to establish that there is deliberate coordination between the applicants and/or a third party with a view to obtaining an advantage for a specific applicant? (6) What constitutes an advantage within the meaning of Article 4(8) of Regulation No 65/2011, in particular, does it include drawing up several smaller investment proposals with a view to a specific applicant receiving funding for each of them at the maximum rate of EUR 200 000 even if they were submitted by various different applicants? (7) Is Article 4(8) of Regulation No 65/2011 to be interpreted as calling into question the case-law in the Republic of Bulgaria, according to which the provision in fact requires that the following three cumulative conditions be met: [firstly,] that there be functional dependence and/or artificially created conditions for obtaining aid, [secondly,] that this be intended to obtain an advantage, and [thirdly,] that it be contrary to the objectives of the measure?’
4

Under the title ‘Educational Establishments’, Paragraph 2 of the BAföG, provides: ‘1. Education or training grants shall be conferred in respect of attendance at: (1) general secondary schools [“weiterführende allgemeinbildende Schulen”] and vocational schools [“Berufsfachschulen”], including classes in all forms of basic vocational education or training, from class 10 [corresponding to the 10th year of schooling] upwards and at trade or technical schools [“Fach- und Fachoberschulklassen”], attendance at which does not require prior completion of a course of vocational education or training, provided that the student meets the requirements of subparagraph 1a, (2) classes in vocational schools and trade or technical schools [“Berufsfachschulklassen und Fachschulklassen”], attendance at which does not require prior completion of a course of vocational education or training, provided that they lead to a vocational qualification after a course of at least two years’ duration, … Classification depends on the nature and content of the education or training. The education or training grant shall be granted where the education or training is pursued in a public establishment – with the exception of private establishments of higher education – or a private alternative school [“Ersatzschule”]. … 1a. Education or training grants shall be made available for attendance at the educational establishments referred to in point 1 of subparagraph 1 above only where the student does not reside with his parents and (1) if there is no equivalent educational establishment at a reasonable distance from the parental home; ... 5. Education or training grants shall be made available only where the period of education or training is of a duration of at least one semester of school or university studies, and where the student is generally required to devote himself fully to that education or training.’
40

It also follows from the directive that operators have four months in which to prepare to surrender the allowances from the preceding year, which gives them a reasonable amount of time in which to comply with their surrender obligation. It is, moreover, apparent from the travaux préparatoires for the directive that the Council extended the time limit initially granted to undertakings, since the Commission’s proposal referred to a deadline of 31 March. Secondly, the deadline of 30 April is later than that on which the Member States are required to allocate a proportion of their allowances for the current year, fixed at 28 February – and 95% of the allowances were allocated free of charge for the period from 2005 to 2008. Lastly, as stated in paragraphs 22 and 27 of this judgment, in the light of the of accurate accounting of the EU-wide allowances on which the proper functioning of the scheme established by the directive depends, a penalty of EUR 40 per tonne of carbon dioxide equivalent allowances not surrendered as at 30 April (value corresponding to double the price of that tonne estimated at that time on the futures market for polluting rights) does not carry drawbacks which are incommensurate with the advantages to be gained by the European Union’s fulfilment of its commitments under the Kyoto Protocol.