ddrg/super_eurlex huggingface dataset:
Article 80(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the conditions of application it sets out are exhaustive and, consequently, that national legislation cannot on the basis of that provision provide that the taxable amount is to be the open market value of a transaction between connected persons in cases other than those listed in that provision, in particular where the taxable person has a full right of deduction of value added tax, which is for the national court to ascertain.

In accordance with the general rule set out in Article 73 of Directive 2006/112, the taxable amount for the supply of goods or services for consideration is the consideration actually received for them by the taxable person. That consideration is the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria. By allowing the taxable amount to be taken as the open market value of the transaction in certain cases, Article 80(1) of Directive 2006/112 lays down an exception to the general rule stated in Article 73 of that directive, which must as such be interpreted strictly.

(see paras 43, 45, 52, operative part 1)
Article 6(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a situation in which two or more companies established in different Member States, in proceedings pending before a court of one of those Member States, are each separately accused of committing an infringement of the same national part of a European patent which is in force in yet another Member State by virtue of their performance of reserved actions with regard to the same product, is capable of leading to ‘irreconcilable judgments’ resulting from separate proceedings as referred to in that provision. It is for the referring court to assess whether such a risk exists, taking into account all the relevant information in the file.

Article 22(4) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding, in a situation which concerns an action for infringement in which the invalidity of a European patent has been raised, at an interim stage, as a defence to the adoption of a provisional measure concerning cross-border prohibition against infringement, the application of Article 31 of that regulation.

In the first place, those provisions are intended to regulate different situations and each has a distinct field of application. Thus, whilst Article 22(4) concerns the attribution of jurisdiction to rule on the substance in proceedings relating to a clearly defined area, Article 31 is designed to apply regardless of any jurisdiction as to the substance. Indeed, there is nothing to indicate that either of the provisions at issue can be regarded as general or special in relation to the other. It follows from this that the ambit of Article 31 is independent of that of Article 22(4) of that regulation. Article 31 applies when a claim for provisional, including protective, measures is brought before a court other than the court which has jurisdiction as to the substance, so that Article 22(4), which concerns the jurisdiction as to substance, cannot, as a rule, be interpreted so as to derogate from Article 31 and, consequently, cause it to be disapplied.

In the second place, the court before which the interim proceedings have been brought does not make a final decision on the validity of the patent invoked but makes an assessment as to how the court having jurisdiction under Article 22(4) of Regulation No 44/2001 would rule in that regard, and will refuse to adopt the provisional measure sought if it considers that there is a reasonable, non-negligible possibility that the patent invoked would be declared invalid by the competent court. In those circumstances, there is no risk of conflicting decisions, since the provisional decision taken by the court before which the interim proceedings have been brought will not in any way prejudice the decision to be taken on the substance by the court having jurisdiction under Article 22(4) of Regulation No 44/2001.

(see paras 36, 39, 40, 48-51, operative part 2)
A Member State which reserves for resident pension funds the right to treat amounts reserved in order to meet their obligations as regards pensions as deductible costs without offering the same advantage to non-resident pension funds fails to fulfil its obligations under Article 63 TFEU and Article 40 of the Agreement on the European Economic Area (EEA).

By reason of such legislation, dividends received by resident pension funds are, in practice, unlike the dividends received by non-resident pension funds, exempt or partially exempt from income tax, whereas dividends received by non-resident pension funds are subject to a withholding tax in respect of which no deduction is permitted. Such unfavourable treatment of dividends paid to non-resident pension funds as compared with dividends paid to resident pension funds is likely to discourage companies established in another Member State of the European Union or another Member State of the EEA from investing in that Member State and therefore constitutes a restriction on the free movement of capital prohibited, in principle, by Article 63 TFEU and Article 40 of the EEA Agreement.

By creating a direct link between the amounts reserved in order to meet obligations as regards pensions and the activities of pension funds generating taxable income, such legislation aims to take account of the specific purpose of pension funds which is to accumulate capital, by way of investments producing, in particular, an income in the form of dividends in order to meet their future obligations under insurance contracts. Since, that specific purpose is also that of non-resident pension funds which pursue the same activity, the latter are in a situation objectively comparable to that of resident pension funds as regards dividends received in that Member State.

Furthermore, such a restriction on the free movement of capital is not justified by the objective based on the need to ensure the coherence of the national tax system, since it has not been shown to the required legal standard that the financial advantage granted to resident pension funds is offset by a particular tax levy, thereby justifying the taxation of dividends paid to non-resident pension funds.

(see paras 32, 33, 41-43, 50, 53, operative part)
In the context of procedures for the award of public works contracts, public supply contracts and public service contracts, the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. It would be contrary to the principle of legal certainty to determine the applicable law by reference to the date of the award of the contract since that date marks the end of the procedure, while the decision of the contracting authority to proceed with or without a prior call for competition is normally taken at the initial stage of that procedure. Nevertheless, where the negotiations opened after that decision are substantially different in character from those already conducted and are, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, the application of the provisions of a directive with a time-limit for implementation which expired after the date of that decision, might be justified.

(see paras 52-54)
Keywords

Summary



Keywords

1. Transport — Common policy — Development of the Community’s railways — National railway infrastructure manager — Independence — Assessment criteria set out in a Commission working document — Binding legal value — No such value — Obligation to transpose — No such obligation

(European Parliament and Council Directive 2001/14; Council Directive 91/440)

2. Action for failure to fulfil obligations — Proof of failure — Burden of proof on Commission — Production of evidence showing failure — Presumptions — Inadmissibility

(Art. 258 TFEU)

Summary

1. A Commission working document which sets out the criteria on the basis of which it examines the independence of the national rail infrastructure manager, as required by Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, and the measures envisaged to guarantee that independence, which has never been published in the Official Journal of the European Union , which was made public three years after the expiry of the period prescribed for the transposition of that directive and which was not referred to in any legislative measure has no binding legal value.

2. Therefore a Member State cannot be criticised for failing to include those criteria in the laws or regulations transposing Directive 91/440 on the development of the Community’s railways and Directive 2001/14. Accordingly, the failure to transpose those criteria cannot, of itself, lead to the conclusion that the national railway infrastructure manager has independent decision-making powers vis-à-vis the undertaking in which it is integrated, which, as holding company, also supervises rail undertakings.

(see paras 32, 54, 58, 61)

3. See the text of the decision.

(see para. 62)
Judgment of the Court (Eighth Chamber) of 19 April 2012 — Commission v Netherlands

(Case C-141/10)

‛Failure of a Member State to fulfil obligations — Articles 39 EC to 42 EC — Freedom of movement of persons — Regulation (EEC) No 1408/71 — Social security of migrant workers — Refusal to pay certain benefits — Workers employed on drilling platforms in the Netherlands — Admissibility of the action’

Procedure — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unambiguous wording of the form of order sought by the applicant (Rules of Procedure of the Court of Justice, Art. 38(1)(c)) (see paras 15-22)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 3(1) and 13(2)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2) and of Articles 45 TFEU to 48 TFEU — Refusal to pay certain benefits to workers living in the Member States of the European Union who are employed on drilling platforms in the Kingdom of the Netherlands.

Operative part

The Court:

1. Dismisses the action as inadmissible;

2. Orders the European Commission to pay the costs;

3. Orders the Portuguese Republic to bear its own costs.

Judgment of the Court (Eighth Chamber) of 19 April 2012 — Commission v Netherlands

(Case C-141/10)

‛Failure of a Member State to fulfil obligations — Articles 39 EC to 42 EC — Freedom of movement of persons — Regulation (EEC) No 1408/71 — Social security of migrant workers — Refusal to pay certain benefits — Workers employed on drilling platforms in the Netherlands — Admissibility of the action’

Procedure — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unambiguous wording of the form of order sought by the applicant (Rules of Procedure of the Court of Justice, Art. 38(1)(c)) (see paras 15-22)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 3(1) and 13(2)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2) and of Articles 45 TFEU to 48 TFEU — Refusal to pay certain benefits to workers living in the Member States of the European Union who are employed on drilling platforms in the Kingdom of the Netherlands.

Operative part

The Court:

1. Dismisses the action as inadmissible;

2. Orders the European Commission to pay the costs;
Judgment of the Court (Seventh Chamber) of 16 December 2010 – Commission v Netherlands

(Case C‑233/10)

Failure of a Member State to fulfil obligations – Directive 2007/44/EC – Prudential assessment of acquisitions and increase of holdings in the financial sector – Procedural rules and evaluation criteria

1. 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 2007/44) (see paras 9-10, 13)

2. Member States – Obligations – Implementation of directives – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 258 TFEU) (see para. 11)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector (OJ 2007 L 247, p. 1).

Operative part

The Court:

1. Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;
Judgment of the Court (Sixth Chamber) of 23 September 2010 – Commission v Greece

(Case C‑24/10)

Failure of a Member State to fulfil its obligations – Directive 2006/46/EC – Company law – Annual accounts and consolidated accounts of companies – Failure to transpose within the prescribed period

1. 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. 9)

2. Member States – Obligations – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 258 TFEU) (see paras 10-13, operative part)

Re:

Failure of a Member State to fulfil its obligations – Failure to adopt, within the prescribed period, the provisions necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings (OJ 2006 L 224, p. 1).

Operative part

The Court:

1. Declares that, by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings, the Hellenic Republic has failed to fulfil its obligations under that directive;
Judgment of the Court (Sixth Chamber) of 3 February 2011 – Commission v France

(Case C-395/10)

Failure of a Member State to fulfil obligations – Directive 2007/2/EC – Environment policy – Infrastructure for Spatial Information – Exchange and update of data in electronic format – Failure to adopt national measures transposing the directive

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. 9)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ 2007 L 108, p. 1).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), the French Republic has failed to fulfil its obligations under that directive;
Judgment of the Court (Sixth Chamber) of 27 October 2011 – Commission v Poland

(Case C-362/10)

Failure of a Member State to fulfil obligations – Directive 2003/98/EC – Re-use of public sector information – Incorrect transposition of or failure to transpose certain articles within the period prescribed

1. Acts of the institutions – Directives – Implementation by Member States – Transposition of a directive without legislative action – Conditions – Existence of a general legal context ensuring the full application of the directive (Art. 288, third para., TFEU; European Parliament and Council Directive 2003/98) (see paras 46, 60)

2. Acts of the institutions – Directives – Implementation by Member States – Directive intended to create rights for individuals – Requirements of clarity and legal certainty – Directive 2003/98 – Right to re-use public sector information – No transposition by statutory or regulatory provision – Not permissible (Art. 288, third para., TFEU; European Parliament and Council Directive 2003/98, Art. 2, paras 1 to 3, 4, 6, 7 and 10) (see paras 50-52, 54-56)

3. Acts of the institutions – Directives – Implementation by Member States – Transposition of a directive without legislative action – Not permissible in the case of an express requirement for reference to be made to a directive (Art. 288, third para., TFEU; European Parliament and Council Directive 2003/98) (see para. 58)

4. Acts of the institutions – Directives – Implementation by Member States – Necessity of full transposition into national law – Activity referred to by a directive does not exist in a Member State – No effect (Art. 288, third para, TFEU; European Parliament and Council Directive 2003/98) (see para. 64)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the measures necessary to comply with Articles 2, 3, 4, 6, 7, 8, 10 and 11 of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ 2003 L 345, p. 90).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to transpose into the Polish legal order Articles 2 to 4, 6 to 8, 10 and 11 of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, the Republic of Poland has failed to fulfil its obligations under those articles;
Judgment of the Court (Seventh Chamber) of 8 March 2012 —

Commission v France



(Case C-596/10)

Failure of a Member State to fulfil obligations — Value added tax — Directive 2006/112/EC — Application of reduced VAT rates to transactions concerning equidae and in particular to horses

1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Rate of the tax — Discretionary power of the Member States to apply a reduced rate to certain supplies of goods and services (Council Directive 2006/112, Arts 96 to 99 and Annex III, paras 1 and 11) (see paras 46, 47, 76, 80 and operative part.)

2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Rate of the tax — Discretionary power of the Member States temporarily to apply a reduced rate — Conditions (Council Directive 2006/112, Arts 99 and 110) (see paras 74, 75, 77)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 96 to 99 of Annex III to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Application of a reduced rate of VAT to transactions concerning equidae and in particular to horses.

Operative part

The Court:

1. Declares that, by applying reduced rates of value added tax to transactions relating to equidae and, in particular, to horses, when the latter are not as a matter of course intended for use in the preparation of foodstuffs or in agricultural production, the French Republic has failed to fulfil its obligations under Articles 96 to 99 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto;

2. Orders the French Republic to pay the costs;
3

According to the 7th, 16th, 20th and 21st recitals in the preamble to Directive 93/13: ‘Whereas sellers of goods and suppliers of services will thereby be helped in their task of selling goods and supplying services, both at home and throughout the internal market; whereas competition will thus be stimulated, so contributing to increased choice for Community citizens as consumers; … Whereas … in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account; … Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms …; Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions’.