ddrg/super_eurlex huggingface dataset:
21

As regards the tax concession allegedly received by EDF in 1997, the Commission found, in the grounds of that decision, inter alia, that: ‘(88) The letter from the Minister for Economic Affairs setting out the tax implications of the restructuring of EDF’s balance sheet shows that the unused provisions for renewal of the RAG were subjected by the French authorities to corporation tax at 41.66%, the rate applicable in 1997. (89) On the other hand, pursuant to Article 4 of [Law] No 97-1026 of 10 November 1997, some of those provisions, namely the grantor rights, corresponding to renewal operations already carried out, were reclassified as capital injections amounting to FRF 14.119 billion without being subjected to corporation tax. … In a memorandum dated 9 April 2002 addressed … to the Commission, the French authorities … noted that “the tax concession thus obtained [by EDF in 1997] can be estimated at FRF 5.88 billion (14.119 x 41.66%)”, equivalent to EUR 888.89 million … … (91) The Commission takes the view that the grantor rights should have been taxed at the same time and at the same rate as the other accounting provisions created free of tax. This means that the FRF 14.119 billion in grantor rights should have been added to the FRF 38.5 billion in unused provisions and taxed at the rate of 41.66% applied by the French authorities to the restructuring of EDF’s balance sheet. By not paying all the corporation tax due when it restructured its balance sheet, EDF saved EUR 888.89 million. … (95) The French authorities claim, furthermore, that the restructuring of EDF’s accounts in 1997 can be regarded as a capital injection of an amount equivalent to the partial tax exemption: it was therefore an investment by them and not an aid measure. … (96) The Commission has to dismiss these arguments, since the private investor principle can be applied only in the context of the pursuit of an economic activity, not in the context of the exercise of regulatory powers. A public authority cannot use as an argument any economic benefits it could derive as the owner of an enterprise in order to justify aid granted in a discretionary manner by virtue of the prerogatives it enjoys as the tax authority in relation to the same enterprise. (97) While a Member State may act as a shareholder in addition to exercising its powers as a public authority, it must not combine its role as a State wielding public power with that of a shareholder. Allowing Member States to use their prerogatives as public authorities for the benefit of their investments in enterprises operating in markets that are open to competition would render the Community rules on State aid completely ineffective. Furthermore, while in accordance with Article 295 the Treaty is neutral as regards the system of capital ownership, the fact remains that public enterprises must be subject to the same rules as private enterprises. Public and private enterprises would no longer be granted equal treatment if the State were to use the prerogatives of public power for the benefit of the enterprises in which it is a shareholder.’
7

If the measures envisaged are not in accordance with the opinion of the Committee, or if the Committee has not delivered an opinion, Article 5a(4) of the second ‘comitology’ committee provides that the following procedure is to apply: ‘(a) the Commission shall without delay submit a proposal relating to the measures to be taken to the Council and shall forward it to the European Parliament at the same time; (b) the Council shall act on the proposal by a qualified majority within two months from the date of referral to it; (c) if, within that period, the Council opposes the proposed measures by a qualified majority, the measures shall not be adopted. In that event, the Commission may submit to the Council an amended proposal or present a legislative proposal on the basis of the Treaty; (d) if the Council envisages adopting the proposed measures, it shall without delay submit them to the European Parliament. If the Council does not act within the two-month period, the Commission shall without delay submit the measures for scrutiny by the European Parliament; (e) the European Parliament, acting by a majority of its component members within four months from the forwarding of the proposal in accordance with point (a), may oppose the adoption of the measures in question, justifying their opposition by indicating that the proposed measures exceed the implementing powers provided for in the basic instrument or are not compatible with the aim or the content of the basic instrument or do not respect the principles of subsidiarity or proportionality; (f) if, within that period, the European Parliament opposes the proposed measures, the latter shall not be adopted. In that event, the Commission may submit to the Committee an amended draft of the measures or present a legislative proposal on the basis of the Treaty; (g) if, on expiry of that period, the European Parliament has not opposed the proposed measures, the latter shall be adopted by the Council or by the Commission, as the case may be.’
Keywords

Summary



Keywords

1. European Union – Common foreign and security policy – Restrictive measures against Iran

(Council Regulation No 423/2007, Art. 7(3))

2. European Union – Common foreign and security policy – Restrictive measures against Iran

(Council Regulation No 423/2007, Art. 7(4))

Summary

1. Article 7(3) of Regulation No 423/2007 of 19 April 2007 concerning restrictive measures against Iran must be interpreted as meaning that the prohibition of indirectly making available an economic resource, within the meaning of Article 1(i) of that regulation, encompasses acts relating to the supply and installation in Iran of a sintering furnace in working condition but not yet ready for use for the benefit of a third party which, acting on behalf, under the control or on the instructions of a person, an entity or a body listed in Annexes IV and V to that regulation, intends to use that furnace to manufacture, for the benefit of such a person, entity or body, goods capable of contributing to nuclear proliferation in that State.

Having regard to the preventive nature of the restrictive measures adopted against the Islamic Republic of Iran, the relevant criterion, for the purposes of the application of the concept of ‘economic resources’, in the context of the prohibition laid down in Article 7(3) of Regulation No 423/2007 is whether it is possible that the asset in question may be used to obtain funds, goods or services capable of contributing to nuclear proliferation in Iran. It is not therefore necessary, for the purposes of the application of Article 7(3) of that regulation, that such an asset be immediately ready for use upon completion of the act at issue.

(see paras 45-47, 57, operative part 1)

2. Article 7(4) of Regulation No 423/2007 concerning restrictive measures against Iran must be interpreted as meaning that:

– it covers activities which, under cover of a formal appearance which enables them to avoid the constituent elements of an infringement of Article 7(3) of the regulation, none the less have the object or effect, direct or indirect, of frustrating the prohibition laid down in that provision;

– the terms ‘knowingly’ and ‘intentionally’ imply cumulative requirements of knowledge and intent, which are met where the person participating in an activity having such an object or such an effect deliberately seeks that object or effect or is at least aware that his participation may have that object or that effect and he accepts that possibility.

(see para. 68, operative part 2)
Keywords

Summary



Keywords

Social security for migrant workers — Applicable legislation — Worker employed on board a vessel flying the flag of a Member State — Dredger operating outside European Union territory — Legislation of a Member State excluding from its national social security system a worker employed on such a dredger who holds the nationality of that State but does not reside in it — Not permissible

(Council Regulation No 1408/71, Art. 13(2)(c), as amended by Regulations No 118/97 and No 307/1999)

Summary

Article 13(2)(c) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 307/1999, must be interpreted as precluding a legislative measure of a Member State from excluding, from affiliation to the social security scheme of that Member State, a person who holds that Member State’s nationality but does not reside in it and is employed on board a dredger flying the flag of that Member State and operating outside the territory of the European Union.

The effect of Article 13(2)(c) of that regulation is that a provision of the applicable national legislation pursuant to which cover by the social security scheme established by that legislation is conditional on residence in the Member State concerned may not be relied on against the persons referred to in Article 13(2)(c) of that regulation.

(see paras 35, 37, operative part)
Case C-171/11

Fra.bo SpA

v

Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) — Technisch-Wissenschaftlicher Verein

(Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf)

‛Free movement of goods — Measures having equivalent effect to a quantitative restriction — National certification procedure — Presumption of compliance with national law — Applicability of Article 28 EC to a private-law certification body’

Summary of the Judgment

Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Scope — Presumption of compliance with national law — Standardisation and certification activities of a private-law body — Included

(Art. 28 EC)

Article 28 EC must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body. That is the case where the body offers the only possibility for obtaining a compliance certificate for certain products and, by virtue of its authority to certify the products, holds the power to regulate the entry into the market of those products.

(see paras 28, 31, 32, operative part)

Case C-171/11

Fra.bo SpA

v

Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) — Technisch-Wissenschaftlicher Verein

(Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf)

‛Free movement of goods — Measures having equivalent effect to a quantitative restriction — National certification procedure — Presumption of compliance with national law — Applicability of Article 28 EC to a private-law certification body’

Summary of the Judgment

Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Scope — Presumption of compliance with national law — Standardisation and certification activities of a private-law body — Included

(Art. 28 EC)

Article 28 EC must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body. That is the case where the body offers the only possibility for obtaining a compliance certificate for certain products and, by virtue of its authority to certify the products, holds the power to regulate the entry into the market of those products.

(see paras 28, 31, 32, operative part)
Article 31 of Agreement on the European Economic Area precludes legislation of a Member State which treats an exchange of shares between a company established in that Member State and a company established in a third country that is a party to that agreement as a taxable disposal of shares whereas such an operation would be neutral for tax purposes if it concerned only domestic companies or companies established in other Member States, if there is, between that Member State and the third country, an agreement on mutual administrative assistance in the field of taxation which provides for an exchange of information between the national authorities which is as effective as that provided for in Directive 77/799 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and Directive 2011/16 on administrative cooperation in the field of taxation and repealing Directive 77/799, which is for the referring court to ascertain. In such a case, the Member State concerned cannot rely on the need to preserve the effectiveness of tax supervision in order to justify the difference in treatment at issue.

(see paras 38, 39, operative part)
Article 183 of Directive 2006/112 on the common system of value added tax must be interpreted as not authorising the tax authority of a Member State to defer, without undertaking a specific analysis and solely on the basis of an arithmetical calculation, the refund of part of the excess value added tax which has arisen during a one-month tax period, pending the examination by that authority of the taxable person’s annual tax return.

The conditions for reimbursement of excess value added tax cannot undermine the principle of fiscal neutrality by making the taxable person bear the burden of the value added tax in whole or in part. In particular, they must enable the taxable person, in appropriate circumstances, to recover the entirety of the credit arising from that excess value added tax. This implies that the refund must be made within a reasonable period of time by a payment in liquid funds or equivalent means and that, in any event, the method of refund adopted must not entail any financial risk for the taxable person.

Admittedly, the deferral of the refund of excess VAT over several tax periods following that in which the excess arose is not necessarily irreconcilable with the first paragraph of Article 183 of Directive 2006/112. However, a period of a year, or even longer, during which the taxable persons must bear the financial burden of the value added tax, whereas as a general rule the taxable period is fixed at one calendar month, cannot be considered to be reasonable.

While the aim of such legislation is to reduce the risk of tax evasion or avoidance, it must be stated that its application in a general and preventative manner, purely on the basis of an arithmetical finding, without any specific analysis of the circumstances in the course of which the taxable person concerned would have a chance to demonstrate that there was no risk of tax evasion or avoidance, infringes the principle of proportionality.

(see paras 24-28, 33, 36, 38 and operative part)
Article 4a(1) of Regulation No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the European Community and amending Regulation No 1290/2005 on the financing of the common agricultural policy, as amended by Regulation No 1261/2007, must be interpreted as meaning that the undertaking to cease delivery of a certain quantity of sugar beet during the marketing year 2008/2009 may take the form of a unilateral declaration by the producer.

The attainment of the objective of reducing sugar production quotas, which underlies that legislation, would risk being compromised if such a reduction could be made subject to the collaboration of the sugar companies, in the form, in particular, of the prior termination, by mutual agreement, of the delivery contract binding the producer to the undertaking.

Moreover, neither Article 4a of Regulation No 320/2006 nor any other provision of EU law provides that applications for restructuring aid must be preceded by the prior termination of such delivery contracts.

(see paras 19, 20, 25, operative part 1)
Article 22(1)(a) of Regulation No 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) must be interpreted as meaning that the requirement laid down by that provision that the person concerned must be setting up for the first time on an agricultural holding as ‘head of the holding’ means, in a situation in which the person concerned sets up using a limited company, that he has effective and long-term control and management of the agricultural holding.

While it is open to the Member States to lay down conditions from which it may be concluded that an aid applicant has the capacity of head of the holding, this is subject to the proviso that such conditions do not go beyond the framework that they aim to define and, therefore, in compliance with the objectives pursued by Regulation No 1698/2005, ensure that that applicant has effective and long-term control and management of the agricultural holding. Such requirements are satisfied by national provisions which provide that, where a young farmer sets up using a legal person, the grant of aid is conditional on the fact that he has the decision-making power in the company, which requires that he holds more than half of the shares in that company and that those shares represent more than half of the votes.

(see para. 61, operative part)
The Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended, respectively, by Regulations Nos 1214/2007, 1031/2008 and 948/2009 must be interpreted as meaning that, for the purposes of classification under subheading 8528 71 13, apparatus must satisfy two conditions: it must be able to receive television signals and have a modem for gaining access to the internet. In the absence of one or other of those functions, that apparatus must be classified under subheading 8528 71 19.

Moreover, for the purposes of classification of such apparatus under subheading 8528 71 13, a modem for gaining access to the internet is a device which, alone and without the intervention of any other apparatus or mechanism, is able to access the internet and to ensure interactivity.

The intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties.

Therefore, by excluding from the concept of a ‘modem’ devices which fulfil similar functions to a modem because of technical considerations, whereas only the objective of the capacity for gaining access to the internet is relevant for the purpose of classification, the Explanatory Notes of 7 May 2008 regarding subheading 8528 71 13 have restricted the meaning of that term. Those notes therefore contradict the combined nomenclature on that point and must be disregarded.

(see paras 30, 43, 45, 48, 59, operative parts 1, 2)
Article 13B(b) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that the concept of the leasing or letting of immovable property includes the leasing of a houseboat, including the space and the landing stage contiguous therewith, which is fixed by attachments which are not easily removable to the bank and bed of a river, stays in a demarcated and identifiable location in the river water and is exclusively used, according to the terms of the leasing contract, for the permanent operation of a restaurant-discotheque at that location. That leasing constitutes a single exempt supply, without it being necessary to distinguish between the leasing of the houseboat and that of the landing stage.

A leased houseboat and the space and landing stage contiguous therewith, which is fixed by attachments which are not easily removable to the bank and bed of the river, stays in a demarcated and identifiable location in the river water and is exclusively used, according to the terms of the leasing contract, for the permanent operation of a restaurant-discotheque at that location, does not constitute a vehicle within the meaning of Article 13B(b), point 2, of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.

It is not the initial use of an object which is significant, but its actual and current function. The initial use of an object cannot definitively assure for it a certain VAT treatment, notwithstanding modification of the actual use which is made of that object.

In accordance with the principle of fiscal neutrality, the function of such a houseboat is comparable with that of a building used as a restaurant installed close to the latter, on dry land. Therefore, the restaurant‑discotheque functioning on that houseboat is in economic competition with similar establishments situated in buildings incorporated into the ground.

(see paras 33, 36, 37, operative part 2)
Point (1) of Article 2 of Decision 2004/290 authorising Germany to apply a measure derogating from Article 21 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted to the effect that the term ‘construction work’, as used in that provision, covers the supply of goods within the meaning of Article 5(1) of that directive, in addition to the transactions to be regarded as supplies of services, as defined in Article 6(1) of the Sixth Directive.

Decision 2004/290 authorising Germany to apply a measure derogating from Article 21 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted to the effect that it is open to the Federal Republic of Germany to avail itself only partially of the authorisation granted by that decision, exercising it in respect of certain subcategories, such as particular types of construction work, and in respect of supplies to certain recipients.

When establishing those subcategories, that Member State is required to respect the principle of fiscal neutrality and the general principles of EU law and, in particular, the principles of proportionality and legal certainty.

It is for the referring court to determine, taking into account all the relevant facts and points of law, whether that is the position in the case before it and, if appropriate, to take the measures necessary to remedy the harmful consequences brought about by the application of the provisions at issue in a manner inconsistent with the principles of proportionality or legal certainty.

(see para. 50, operative part 2)