ddrg/super_eurlex huggingface dataset:
Articles 63 and 65 TFEU must be interpreted to the effect that they preclude legislation of a Member State, such as that at issue in the main proceedings, which provides that the failure to comply with an obligation to declare significant sums of cash entering or leaving the territory of that State is punishable with a fine which may be up to double the undeclared amount.

In that regard, it must be recalled that the Court held that, even though under Article 9(1) of Regulation No 1889/2005 Member States enjoy a margin of discretion concerning the choice of penalties which they adopt in order to ensure compliance with the obligation to declare laid down in Article 3 of that regulation, a fine corresponding to 60% of the undeclared cash sum, where that sum is greater than EUR 50000, incurred for breach of that obligation, does not appear to be proportionate having regard to the nature of the infringement concerned. The Court held that such a fine goes beyond what is necessary in order to ensure compliance with that obligation and the fulfilment of the objectives pursued by that regulation, given that the penalty provided for in Article 9 does not seek to penalise possible fraudulent or unlawful activities, but solely a breach of that obligation (judgment of 16 July 2015, Chmielewski, C‑255/14, EU:C:2015:475, paragraphs 29 to 31).

In addition, even if such a fine is calculated by taking into account certain aggravating circumstances, provided they comply with the principle of proportionality, the fact that the amount of the fine may be up to double the undeclared cash sum and that, in any event, as in the present case, the fine may be set at an amount corresponding to nearly 100% of that sum goes beyond what is necessary in order to ensure compliance with the obligation to declare.

(see paras 43, 45, 46, operative part)
Clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, according to which, when the disciplinary dismissal of a permanent worker in the service of a public authority is declared wrongful, the worker in question must be reinstated, whereas, in the same situation, a worker employed under a temporary contract or a temporary contract of indefinite duration performing the same duties as that permanent worker need not be reinstated but instead may receive compensation.

It must be held that, while the difference in treatment at issue cannot be justified by the public interest which attaches, in itself, to the methods of recruitment of permanent workers, the fact remains that considerations based on the characteristics of the law governing the national civil service, such as those referred to in paragraphs 42 to 44 of the present judgment, are capable of justifying such a difference in treatment. In that regard, the conditions of impartiality, efficiency and independence of the administration imply a certain permanence and stability of employment. Those considerations, which have no counterpart in standard employment law, explain and justify the limitations on the power of public employers unilaterally to terminate employment contracts and, as a consequence, the national legislature’s decision not to grant them the right to choose between reinstatement and compensation for harm suffered owing to wrongful dismissal.

Consequently, it must be found that the automatic reinstatement of permanent workers takes place in a significantly different context, from a factual and legal point of view, to that in which non-permanent workers find themselves (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 56).

In those circumstances, it must be held that the unequal treatment found to exist is justified by the existence of precise and specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs, and on the basis of objective and transparent criteria within the meaning of the case-law referred to in paragraph 39 of this judgment.

(see paras 46-49, operative part)
Article 80 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, read in conjunction with Article 57(6) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, must be interpreted as not precluding a provision of national law which requires an economic operator wishing to demonstrate its reliability despite the existence of a relevant ground for exclusion to clarify the facts and circumstances relating to the criminal offence or the misconduct committed in a comprehensive manner by actively cooperating not only with the investigating authority, but also with the contracting authority, in the context of the latter’s specific role, in order to provide it with proof of the re-establishment of its reliability, to the extent that that cooperation is limited to the measures strictly necessary for that examination.

In that regard, it should be noted that the contracting authority must be able to ask an economic operator which has been held responsible for a breach of competition law to provide the decision of the competition authority concerning it. The fact that the transmission of such a document might facilitate the introduction of a civil liability action by the contracting authority against that economic operator is not such as to call that finding into question. It must be borne in mind that, among the measures which an economic operator must take in order to establish its reliability is the provision of evidence that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct which it committed.

(see paras 30, 33, operative part 1)
Case C‑364/17

‘Varna Holideis’ EOOD

v

Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktik’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Request for a preliminary ruling from the Administrativen sad — Varna)

(Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Supply of immovable property effected prior to the accession of the Republic of Bulgaria to the European Union — Nullity of the contract of sale coming to light after the accession — Obligation to adjust the initial deduction — Interpretation — Jurisdiction of the Court)

Summary — Judgment of the Court (Sixth Chamber), 27 June 2018

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation of a Community directive in proceedings pre-dating the accession of a Member State to the European Union — Excluded — Deduction of input value added tax performed before the accession of the Member State in question — Appearance, after the accession of the Member State, of factors capable of justifying a requirement to adjust that deduction — No effect

(Art. 267 TFEU; Council Directive 2006/112)

According to settled case-law, the Court has jurisdiction to interpret EU law only as regards their application in a new Member State with effect from the date of that State’s accession to the European Union (order of 11 May 2017, Exmitiani, C‑286/16, not published, EU:C:2017:368, paragraph 12).

It follows, in particular, that the Court does not have jurisdiction to interpret EU directives relating to VAT where the period for recovery of taxes at issue in the main proceedings pre-dates the accession of the Member State concerned to the Union (order of 11 May 2017, Exmitiani, C‑286/16, not published, EU:C:2017:368, paragraph 13).

Therefore, since the obligation to adjust is inextricably linked to the chargeability of the VAT due or paid as input tax and the right to deduct resulting therefrom, the appearance, after the accession of a Member State to the EU, of factors which are, in principle, capable of justifying that obligation does not allow the Court to interpret the VAT Directive if the supply of goods or services concerned is made before that accession.

(see paras 17, 18, 31)
Case C‑304/17

Helga Löber

v

Barclays Bank plc

(Request for a preliminary ruling from the Oberster Gerichtshof)

Reference for a preliminary ruling — Regulation (EC) No 44/2001 — Jurisdiction in civil and commercial matters — Special jurisdiction — Article 5(3) — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred or may occur — Consumer, domiciled in a Member State, who bought, through a bank established in that Member State, securities issued by a bank established in another Member State — Jurisdiction to hear and determine the tort action brought by that consumer against the bank concerned)

Summary — Judgment of the Court (First Chamber), 12 September 2018

Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Concept—Action seeking to establish liability not falling within the scope of matters relating to a contract (Council Regulation No 44/2001, Art. 5(3)) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Place of occurrence of the harmful event—Concept—Place where the damage occurred and place of the event giving rise to it (Council Regulation No 44/2001, Art. 5(3)) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Place of occurrence of the harmful event—Concept—Place where the damage, in the form of financial loss in the bank account of the applicant, occurred—Exclusion in the absence of any other connecting factors (Council Regulation No 44/2001, Art. 5(3)) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Tort action brought by an investor against the issuer of a certificate on the basis of the prospectus relating to that certificate—Damage consisting in financial loss which occurred in a bank account of the investor’s with a bank established within the jurisdiction of the courts of the investor’s domicile—Jurisdiction of those latter courts—Conditions (Council Regulation No 44/2001, Art. 5(3))
Officials—Pensions—Pension rights acquired before entry into the service of the EU—Transfer to the EU scheme—Obligations of the Member States and of the institution concerned—Scope—Late communication of necessary information by the national pensions body—No obligation for the institution concerned to apply the provisions in force in the event of transmission of information in an ad hoc manner

(Statue of Official of the European Union, Art. 77 and Annex VIII, Art. 11(2))

(see paras 58, 59)
The principle of free movement of pyrotechnic articles, as provided for, inter alia, in Article 6(2) of Directive 2007/23/EC of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles, does not preclude national legislation, such as that at issue in the main proceedings, which restricts the possession or use by consumers and the sale to consumers of fireworks of which the pyrotechnic composition exceeds 1 kg, to the extent that such legislation is appropriate to guarantee public order and security and does not go beyond what is necessary to protect those fundamental interests, which it is for the referring court to ascertain.

In the present case, it is appropriate to note, as the Advocate General observed in point 88 of his Opinion, that pyrotechnic articles are inherently dangerous products since, in particular articles of which the pyrotechnic composition exceeds 1 kg, they can prejudice the safety of persons. He also stated, correctly, that those articles, due to their very nature and depending on the circumstances in which they are used, can affect public order. Accordingly, the fact of making the sale to individuals of pyrotechnic articles of which the pyrotechnic composition exceeds 1 kg is subject to the acquisition of an authorisation by individuals is such as to prevent threats to the public order and safety since that national legislation permits the monitoring and, where appropriate, restrictions on the quantity of pyrotechnic composition is in the possession of an individual. Consequently, that national legislation appears appropriate for the protection of public order and safety.

Furthermore, as the Advocate General observed in point 97 of his Opinion, less restrictive measures, such as registration following the purchase of products containing a certain weight of pyrotechnic composition, seem not to be as effective in protecting the fundamental interests relied on by the Belgian Government. Such a formality does enable the quantity of pyrotechnic composition acquired by a consumer to be determined, but not to affect the amount which may be acquired or, consequently, to fight effectively against infringements of the fundamental interests involved. Consequently, the national legislation at issue in the main proceedings does not appear to go beyond what is necessary for the purpose of protecting public order and safety.

(see paras 59, 60, 64, 65, operative part 1)
Case C‑425/17

Günter Hartmann Tabakvertrieb GmbH & Co. KG

v

Stadt Kempten

(Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof)

(Reference for a preliminary ruling — Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40/EU — Ban on placing tobacco for oral use on the market — Definitions of ‘chewing tobacco’ and ‘tobacco for oral use’ — Paste composed of finely ground tobacco (Thunder Chewing Tobacco) and porous cellulose sachet portions filled with finely ground tobacco (Thunder Frosted Chewing Bags))

Summary — Judgment of the Court (Sixth Chamber), 17 October 2018

Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Scope — Tobacco products intended to be chewed — Concept — Criteria for assessment

(European Parliament and Council Directive 2014/40, Art. 2, points 6 and 8)

Article 2(8) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC, read in conjunction with Article 2(6) of that directive, must be interpreted as meaning that only tobacco products which can be consumed in the proper sense only by chewing constitute tobacco products intended to be chewed within the meaning of those provisions, which it is for the national court to determine on the basis of all the relevant objective characteristics of the products concerned, such as their composition, their consistency, their method of dispensation and, where appropriate, their actual use by consumers.

As the European Commission has observed, it is apparent from the travaux préparatoires for Directive 2014/40 that, by the addition of the adverb ‘exclusively’ to the definition of the concept of ‘chewing tobacco’ set out in Article 2(6) of that directive, the EU legislature intended to define that concept in order to limit the possibilities of circumventing the prohibition of tobacco for oral use faced with repeated attempts to market tobacco of the ‘snus’ type under the title of ‘chewing tobacco’. It follows that only products which can consumed in the proper sense only by chewing, that is to say products which can release their essential ingredients in the mouth only by chewing, may be classified as ‘tobacco products intended to be chewed’ within the meaning of Article 2(8) of Directive 2014/40. By contrast, a tobacco product which, whilst also being able to be chewed, is essentially intended to be sucked, that is to say a product which it is sufficient to hold in the mouth for its essential ingredients to be released, cannot be classified as such.

(see paras 31-33, 36, operative part)
Joined Cases C‑262/17, C‑263/17 and C‑273/17

Solvay Chimica Italia SpA and Others

v

Autorità per l’energia elettrica, il gas e il sistema idrico

(Requests for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia)

(Reference for a preliminary ruling — Internal market in electricity — Directive 2009/72/EC — Distribution systems — Article 28 — Closed distribution systems — Definition — Exemptions — Limits — Article 32(1) — Third-party access — Article 15(7) and Article 37(6)(b) — Dispatching charges)

Summary — Judgment of the Court (First Chamber), 28 November 2018

Approximation of laws — Measures of approximation — Common rules for the internal market in electricity — Directive 2009/72 — Closed distribution systems — Fixing of dispatching charges — National legislation providing for calculation on the basis of the electricity exchanged with the system by each of its users — Not permissible — Conditions

See the text of the decision. (see paras 28-31)

Article 2(5) and Article 28(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC must be interpreted as meaning that systems, such as those at issue in the main proceedings, put in place for the purposes of self-consumption before the entry into force of that directive and operated by a private person, to which a limited number of generation and consumption units are connected, and which in turn are connected to the public network, constitute distribution systems falling within the scope of that directive. (see para. 38, operative part 1)

Article 28 of Directive 2009/72 must be interpreted as meaning that systems, such as those at issue in the main proceedings, which have been classified by a Member State as closed distribution systems within the meaning of paragraph 1 of that article, may, in that capacity, only be exempted by that Member State from the requirements laid down in paragraph 2 of that article, without prejudice to the fact that those systems are otherwise eligible for other exemptions provided for in that directive, in particular the exemption set out in Article 26(4) thereof, if they meet the conditions laid down therein, which it is for the referring court to ascertain. In any event, that Member State may not include those systems in a separate category of distribution systems in view of granting them exemptions not provided for in that directive. (see para. 51, operative part 2)

Article 32(1) of Directive 2009/72 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that closed distribution systems within the meaning of Article 28(1) of that directive are not subject to the obligation to provide third-party access, but must provide access only to third parties falling within the category of users that may be connected to those systems, those users having a right of access to the public network. (see para. 61, operative part 3)
Case C‑451/17

‘Walltopia’ AD

v

Direktor na Teritorialna direktsia na Natsionalnata agentsia za prihodite — Veliko Tarnovo

(Request for a preliminary ruling from the Administrativen sad Veliko Tarnovo)

(Reference for a preliminary ruling — Social security — Regulation (EC) No 883/2004 — Article 12(1) — Regulation (EC) No 987/2009 — Article 14(1) — Posted workers — Legislation applicable — A1 certificate — Whether the employee is subject to the legislation of the Member State in which his employer is established — Conditions)

Summary — Judgment of the Court (Sixth Chamber), 25 October 2018

Social security — Migrant workers — Legislation applicable — Person who is recruited with a view to being posted to a Member State other than that in which his employer is established — Applicability of the law of the Member State where the employer is established — Condition — Worker already subject to the law of the Member State where the employer is established before the start of his employment — Concept — Worker not being an insured person just before the start of his employment — Included if the worker was resident in that Member State just before the start of his employment

(European Parliament and Council Regulations No 987/2009, Art. 14(1) and No 883/2004, Art. 2, 11(1) and 12(1))

Article 14(1) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, read together with Article 12(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, must be interpreted as meaning that an employee recruited with a view to being posted to another Member State must be regarded as having been ‘just before the start of his employment … already subject to the legislation of the Member State in which his employer is established’, within the meaning of Article 14(1) of Regulation No 987/2009, even if that employee was not an insured person under the legislation of that Member State immediately before the start of his employment, if, at that time, that employee had his residence in that Member State, which is for the referring court to ascertain.

(see para. 51, operative part)
The Council is obliged, when adopting restrictive measures, to respect the fundamental rights that form an integral part of the EU legal order, which include, inter alia, respect for the rights of the defence and the right to effective judicial protection.

Consequently, the Council must, before acting on the basis of a decision of an authority of a third State, verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection.

In that regard, the requirement for the Council to verify that the decisions of third States, on which it bases the entry of a person or entity on a list of persons or entities whose assets are to be frozen, have been taken in accordance with those rights is designed to ensure that they are included on that list only on a sufficiently solid factual basis and, thus, to protect the persons or entities concerned.

Moreover, the Council must refer, if only briefly, in the statement of reasons relating to a decision to include a person or entity on a list of persons or entities whose assets are to be frozen and to subsequent decisions, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection.

Thus it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights.

In this connection, the fact that the State concerned is among those States that have acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms cannot render superfluous verification, by the Council, that the decision of a third State on which it bases its restrictive measures has been taken in compliance with fundamental rights and in particular the rights of the defence and the right to effective judicial protection.

(see paras 26-30, 36)