ddrg/super_eurlex huggingface dataset:
3

Article 3(2bis) of Decree-Law No 40/2010 (GURI No 71, 26 March 2010), converted, with amendments, into Law No 73/2010 (GURI No 120, 25 May 2010) (‘Decree-Law No 40/2010’), reads as follows: ‘In order to ensure that judicial proceedings in tax matters are kept within a reasonable time, as required by the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950 (“the ECHR”)], ratified by Law No 848 of 4 August 1955, having regard to the failure to comply with the reasonable time requirement laid down in Article 6(1) of that Convention, pending tax disputes arising from actions lodged at first instance more than 10 years before the date of entry into force of the law converting the present decree into law, in which the State Tax Authority has been unsuccessful at first and second instance, shall be concluded in accordance with the following rules: … (b) tax disputes pending before the Corte suprema di cassazione may be extinguished by payment of an amount equivalent to 5% of the value of the claim … with concurrent abandonment of any claim to fair compensation within the meaning of Law No 89 of 24 March 2001. The taxpayer may lodge an application to that effect with the relevant secretariat or registry within 90 days of the entry into force of the law converting the present decree into law, accompanied by proof of the relevant payment. The proceedings referred to in this paragraph shall be suspended until the expiry of the time-limit set out in the second sentence hereof and shall be concluded with an order apportioning the full costs of the proceedings. In no event shall there be any reimbursement.’
34

In those circumstances, since the Eurostat statistics available at the time of the investigation suggest that products similar to the product concerned are produced in market economy third countries in quantities which are not insignificant, it was the duty of the Commission to examine on its own initiative whether one of those countries could constitute an analogue country for the purposes of Article 2(7)(a) of the basic regulation. The Commission was not entitled to confine itself to sending a single questionnaire to two Thai companies and conclude, because they did not reply, that it was impossible to determine the normal value on the basis of prices charged in a market economy third country. First, it must be noted that the quantity of imports from Thailand was markedly less than that from Israel, Swaziland or Turkey. The Thai companies’ refusal to cooperate therefore in no way relieved the Commission of the task of examining the relevant data relating to other market economy third countries. Second, it must be noted that recital 17 of the definitive regulation simply states that calculating the normal value on the basis of prices in the European Union was the only reasonable basis, and fails to set out the grounds on which none of the abovementioned market economy third countries, other than Thailand, could be selected as an analogue country, from which it is apparent that the European Union institutions failed to examine with due care the information to be obtained from the data of the Eurostat statistics.
35

In those circumstances, the Administrativen sad Varna decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Is Article 80(1)(a) and (b) of [the VAT Directive] to be interpreted as meaning that, where there are supplies between connected persons, in so far as the consideration is lower than the open market value, the taxable amount is the open market value of the transaction only if the supplier or the acquirer does not qualify for the full right to deduct the tax credit on the purchase or production of the goods which are supplied? 2. Is Article 80(1)(a) and (b) of [the VAT Directive] to be interpreted as meaning that, if the supplier has exercised the full right to deduct the tax credit on goods and services which are the subject of subsequent supplies between connected persons at a value which is lower than the open market value, and that right to deduct the tax credit has not been corrected under Articles 173 to 177 of the directive and the supply is not subject to a tax exemption within the meaning of Articles 132, 135, 136, 371, 375, 376, 377, 378(2), 379(2) and 380 to 390 of the directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value? 3. Is Article 80(1)(a) and (b) of [the VAT Directive] to be interpreted as meaning that, if the acquirer has exercised the full right to deduct the tax credit on goods and services which are the subject of subsequent supplies between connected persons at a lower value than the open market value, and that right to deduct the tax credit has not been corrected under Articles 173 to 177 of the directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value? 4. Does Article 80(1) of [the VAT Directive] constitute an exhaustive list of cases representing the circumstances in which a Member State is permitted to take measures whereby the taxable amount in respect of supplies is to be the open market value of the transaction? 5. Is a provision of national law such as Article 27(3)(1) of the ZDDS permissible in cases other than those listed in Article 80(1)(a), (b) and (c) of [the VAT Directive]? 5. In a case such as the present, does Article 80(1)(a) and (b) of [the VAT Directive] have direct effect, and may the national court apply it directly?’
9

Decree-Law No 270/2003 of 28 October 2003 (Diário da República I, Series A, No 250 of 28 October 2003) lays down the conditions governing the provision of rail transport services and the management of railway infrastructure. That decree-law governs in particular the balancing of the accounts of the infrastructure manager in accordance with the provisions of Article 63 thereof, which provides: ‘1. The accounts of the infrastructure manager must ensure a balance between: (a) income from infrastructure charges, surpluses from other commercial activities, and State funding, where appropriate in the form of advance payments, on the one hand, and (b) the costs of the public service of infrastructure management and maintenance, on the other hand. 2. Without prejudice to the possible long-term aim of progressive user cover of infrastructure costs for all modes of transport on the basis of fair, non-discriminatory competition between the various modes, the infrastructure manager is required to achieve the balance referred to in paragraph 1 without State funding, having due regard to the charging structure provided for in the present chapter, where rail transport is in a position to compete with other modes of transport, inter alia where there is an equivalent level of internalisation of environmental costs in other modes of transport. 3. For the purposes of achieving the balance referred to in paragraph 1 and in order to assess the possible need for compensation to be paid by the State to the public service of infrastructure management, it is appropriate to adopt a method for apportioning costs that shows, in a transparent way, that the only costs taken into account are those incurred in the management and maintenance conservation of infrastructure, and in making it available. … 7. For the purposes of paragraph 1(b) of the present article, financial and extraordinary costs are not regarded as costs of the public service of infrastructure management. 8. Extraordinary costs resulting from natural disasters must be compensated by the State.’
Keywords



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. 258 TFEU) (see para 21

)
Keywords



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. 258 TFEU; European Parliament and Council Directive 2000/60, Arts 13(1) to (3) and 6, 14(1)(c) and 15(1)) (see para. 30

)
Keywords

Summary

Keywords Harmonisation of fiscal legislation — Common system of value added tax — Refund of the tax to taxable persons not established in the territory of the country — Legal nature of the time limit within which refund applications are to be submitted — Time bar (Council Directive 79/1072, Art. 7(1)(1)) Summary The six-month time limit laid down in the last sentence of the first subparagraph of Article 7(1) of Eighth Directive 79/1072 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country — for submitting an application for a value added tax refund is a mandatory time limit. (see para. 34, operative part)

Case C-294/11

Ministero dell’Economia e delle Finanze et Agenzia delle Entrate

v

Elsacom NV

(Reference for a preliminary ruling from the Corte suprema di cassazione)

‛Eighth VAT Directive — Arrangements for the refund of VAT to taxable persons not established in the territory of the country — Time limit within which refund applications are to be submitted — Time bar’

Summary of the Judgment

Harmonisation of fiscal legislation — Common system of value added tax — Refund of the tax to taxable persons not established in the territory of the country — Legal nature of the time limit within which refund applications are to be submitted — Time bar

(Council Directive 79/1072, Art. 7(1)(1))

The six-month time limit laid down in the last sentence of the first subparagraph of Article 7(1) of Eighth Directive 79/1072 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country — for submitting an application for a value added tax refund is a mandatory time limit.

(see para. 34, operative part)
It follows from the fifth paragraph of the preamble to that agreement that that agreement was concluded in order to define the privileges and immunities of the Bank in Germany as laid down in the Protocol on the Privileges and Immunities of the European Communities. In that context, Article 15 of the agreement, which provides that the members of the Executive Board and employees of the Bank are not subject to either the substantive or the procedural labour and social welfare law of the Federal Republic of Germany, merely implements principles established by the protocol, inter alia in Articles 13, 15 and 23 thereof, and by the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, in particular in Article 36.

The fact that the European Union is not a party to the Agreement of 18 September 1998 between the German Government and the European Central Bank on the Headquarters of that institution does not render inadmissible a reference for a preliminary ruling on the interpretation of the agreement, and in particular on Article 15 thereof.

Article 15 of the Agreement of 18 September 1998 between the German Government and the European Central Bank on the Headquarters of that institution, read in conjunction with Article 36 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, does not preclude the Federal Republic of Germany, as the State in which the headquarters are situated, from being able to grant the parental allowance provided for by German law to members of staff of the Bank.

While it is indeed true that Article 15 of the agreement precludes the State in which the headquarters are situated from imposing on members of staff of the Bank substantive or procedural obligations in order to receive the benefits provided for by the Bank’s conditions of employment, that article does not in any way whatsoever oblige the Federal Republic of Germany, as the State in which the headquarters are situated, to provide for the German parental allowance to be granted to members of staff of the Bank. Likewise, that article does not deprive the Federal Republic of Germany, which does not make entitlement to such an allowance subject to conditions of employment or insurance, of the ability to grant that allowance to members of staff of the Bank who reside in its territory, since the possibility of such a grant arises, in fact, from its legislation and the relevant provisions of European Union law do not exclude that possibility.

Moreover, it is unclear how the independent determination by the Bank of the scheme applicable to its staff could be adversely affected should the Federal Republic of Germany pay the German parental allowance to members of staff of the Bank.

(see paras 45-48, operative part)
The wording ‘operating for reward on international routes’ within the meaning of Article 15(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as encompassing also international charter flights to meet demand from undertakings and private persons.

Article 15(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as meaning that the exemption for which it provides also applies to the supply of an aircraft to an operator who is not itself an airline operating for reward chiefly on international routes within the meaning of that provision but which acquires that aircraft for the purposes of exclusive use thereof by such an undertaking.

The fact that the purchaser of the aircraft passes on the charge corresponding to its use to an individual who is its shareholder and who uses that aircraft essentially for his own business and/or private purposes, with the airline also having the opportunity to use it for other flights, are not such as to affect this interpretation.

It is, however, for the national court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of European Union law is not undermined, whether action constituting such an abusive practice has taken place in the case before it. The application of the European Union rules cannot be extended to cover abusive practices by economic operators, that is to say, transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages provided for by European Union law.

(see paras 57, 62, 65, 66, operative part 2 and 3)
Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the Member States must be interpreted as meaning that a Member State in receipt of an application for asylum is obliged to grant the minimum conditions for reception of asylum seekers laid down in that directive even to an asylum seeker in respect of whom it decides, under Regulation No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant.

According to Article 3 of Directive 2003/9, which defines the scope of that directive, the directive applies to all third-country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State, as long as they are allowed to remain on the territory as asylum seekers.

With regard to the first condition for application of that directive, the period during which the material reception conditions must be granted to the applicants, that period begins when the asylum seeker applies for asylum. No provision can be found in the directive such as to suggest that an application for asylum can be regarded as having been lodged only if it is submitted to the authorities of the Member State responsible for the examination of that application.

With regard to the second condition for application of Directive 2003/9, Article 7(1) of Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status confers on an asylum seeker the right to remain in the Member State for the purposes of the examination of his application. According to Article 2(k) of that directive, the expression ‘remain in the Member State’ must be understood as the fact of remaining in the territory, not only of the Member State in which the application for asylum is being examined, but also in that in which it was lodged. Thus, asylum seekers are allowed to remain not only in the territory of the Member State in which the application for asylum is being examined, but also in that of the Member State in which that application was lodged, as required by Article 3(1) of Directive 2003/9.

Recital 29 in the preamble to Directive 2005/85 is not such as to impugn that interpretation, since that recital refers only to the fact that the procedures established by that directive for the grant or withdrawal of refugee status in the Member States are to be distinguished from the procedures laid down in Regulation No 343/2003 for determining the Member State responsible for examining an application for asylum.

(see paras 37, 39, 40, 46-50, operative part 1)
Article 185(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the destruction of several buildings intended for energy production and their replacement by more modern buildings which fulfil the same purpose as the demolished buildings does not constitute a change, after the VAT return was made, in the factors used to determine the amount of VAT to be deducted as input tax, and, therefore, does not lead to an obligation to adjust the deduction made.

The replacement of old buildings with more modern buildings which fulfil the same purpose and, consequently, are used for taxable output transactions in no way breaks the direct link between the input acquisition of the buildings at issue, on the one hand, and the economic activities carried out thereafter by the taxable person, on the other. The acquisition of the buildings at issue and their subsequent destruction with a view to modernising them can, therefore, be regarded as a series of linked transactions for the purposes of subsequent taxable transactions in the same way as the acquisition of new buildings and their direct use.

That interpretation must apply a fortiori where the buildings acquired were only partially destroyed, new buildings were built on the same land which had been acquired previously, and certain waste arising from the demolition of the old buildings was sold, which gave rise to taxable output transactions.

(see paras 34 to 36, operative part)
Registration as a trade mark of the form in which another registered trade mark is used, a form which differs from that in which the latter mark is registered, while not altering its distinctive character, is not a bar to the application of Article 10(2)(a) of Directive 89/104 relating to trade marks.

First, for a trade mark to possess distinctive character for the purposes of Directive 89/104, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings.

Second, there is nothing at all in the wording of Article 10(2)(a) of Directive 89/104 to suggest that the different form in which the trade mark is used cannot itself be registered as a trade mark. Indeed, the only condition laid down in that provision is that the form in which the trade mark is used may differ from the form in which that trade mark was registered only in elements which do not alter the distinctive character of the mark.

As to the purpose of Article 10(2)(a) of Directive 89/104, that provision, which avoids imposing a requirement for strict conformity between the form used in trade and the form in which the trade mark was registered, is intended to allow the proprietor of the mark, in the commercial exploitation of the sign, to make variations in the sign, which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned.

That purpose would be jeopardised if, in order to establish use of the registered trade mark, an additional condition had to be met, whereby the different form in which that mark is used should not itself have been registered as a trade mark. In fact, the registration of new forms of a trade mark makes it possible, where necessary, to anticipate changes that may occur in the trade mark’s image and thus to adapt it to the realities of a changing market.

Furthermore, it is clear from the twelfth recital in the preamble to Directive 89/104 that the provisions of the directive must be ‘entirely consistent with those of the Paris Convention’ for the Protection of Industrial Property. Therefore, Article 10(2)(a) of Directive 89/104 must be interpreted consistently with Article 5.C(2) of the Convention. Nothing in the latter provision suggests that when a sign is registered as a trade mark the consequence is that use of the sign can no longer be relied on to establish use of another registered trade mark from which the sign only differs in a way that does not alter the distinctive character of the trade mark.

(see paras 19-24)