ddrg/super_eurlex huggingface dataset:
Article 2 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that, following the award of a public contract, a material amendment cannot be made to that contract without a new tendering procedure being initiated even in the case where that amendment is, objectively, a type of settlement agreement, with both parties agreeing to mutual waivers, designed to bring an end to a dispute the outcome of which is uncertain, which arose from the difficulties encountered in the performance of that contract. The position would be different only if the contract documents provided for the possibility of adjusting certain conditions, even material ones, after the contract had been awarded and fixed the detailed rules for the application of that possibility.

In that regard, neither the fact that a material amendment of the terms of a contract results not from the deliberate intention of the contracting authority and the successful tenderer to renegotiate the terms of that contract, but from their intention to reach a settlement in order to resolve objective difficulties encountered in the performance of the contract, nor the objectively unpredictable nature of the performance of certain aspects of the contract can provide justification for the decision to carry out that amendment without respecting the principle of equal treatment from which all operators potentially interested in a public contract must benefit. Furthermore, the very fact that, because of their subject matter, certain public contracts may immediately be categorised as being unpredictable in nature means that there is a foreseeable risk that difficulties may occur at the implementation stage. Accordingly, in respect of such a contract, it is for the contracting authority not only to use the most appropriate procurement procedures, but also to take care when defining the subject matter of that contract. Furthermore, the contracting authority may retain the possibility of making amendments, even material ones, to the contract, after it has been awarded, on condition that this is provided for in the documents which governed the award procedure.

(see paras 32, 36, 40, operative part)
12

Among the measures for ‘fostering employment of indefinite duration and other measures to promote job creation’, Article 4 of Law 3/2012 provided for the ‘employment contract of indefinite duration to support entrepreneurs’. Under Article 4(1), (2) and (3): ‘1. In order to facilitate employment stability while fostering the spirit of enterprise, undertakings with fewer than 50 workers may conclude employment contracts to support entrepreneurs governed by the present Article. 2. The contract shall be concluded for an indefinite duration and on a full-time basis and shall be set out in writing in accordance with a model to be established. 3. The legal framework for the contract and the related rights and obligations shall in general be governed by the consolidated version of the Workers’ Statute approved by Royal Legislative Decree 1/1995 of 24 March and by collective agreements in the case of employment contracts of indefinite duration, with the sole exception of the probationary period referred to in Article 14 of the Workers’ Statute, which shall in all circumstances be of one year’s duration. A probationary period may not be fixed where the worker has already discharged the same duties within the undertaking, whatever the form of the employment contract.’
12

Article 561(1) of the LEC concerns orders ruling on the objection on substantive grounds and is worded as follows: ‘1. After hearing the parties on an objection to enforcement not based on procedural defects and after any hearing that may be held, the court shall adopt, by order, for the purposes of enforcement only, one of the following decisions: (1) to order the enforcement to proceed in respect of the amount ordered, if the objection is rejected in its entirety. If the objection was based on an excessive claim and was dismissed in part, enforcement shall be ordered only for the corresponding sum. An order dismissing the objection in its entirety shall also order the defendant to the enforcement to pay the costs thereof, pursuant to the provisions of Article 394 as regards orders for costs at first instance. (2) to declare that the enforcement shall not proceed if one of the grounds of objection set out in Articles 556 and 557 is upheld or if the objection that the claim is excessive is upheld in accordance with Article 558 and held to be well founded in its entirety. (3) if one or more clauses are held to be unfair, the order to be made shall determine the consequences of such unfairness, directing either that enforcement is unavailable or ordering enforcement without application of the clauses considered unfair. 2. If the objection to enforcement is upheld, the enforcement shall be deprived of effect and the attachments and the measures adopted to secure the charge shall be lifted, and the defendant to the enforcement shall be restored to his situation before the enforcement order, in accordance with the provisions of Articles 533 and 534. The party seeking enforcement shall be ordered to pay the costs of the objection. 3. The order giving a ruling on the objection may be subject to an appeal, which shall not suspend enforcement if the decision under appeal rejected the objection. If the decision under appeal upheld the objection, the party seeking enforcement may request the maintenance of the attachments and measures adopted as security and the adoption of measures pursuant to Article 697 of the present law. The court shall rule on these matters by way of order, provided that the party seeking enforcement provides sufficient security, fixed in the decision itself, to guarantee the compensation to which the defendant to the enforcement would be entitled if the decision in favour of the defendant were upheld.’
45

Thus, in a case such as that at issue in the main proceedings, which, according to the information provided at the hearing, concerns the letting of a large number of immovable properties intended to be used for various purposes ranging from a hangar to use as housing by a tenant, it is important to ascertain in the context of each letting whether, with respect to utilities, the tenant is free to determine his own levels of consumption. In that regard, the existence of individual meters and billing according to the amount of the goods used is a factor of importance which suggests that the provision of utilities should be regarded as constituting separate supplies from the letting. So far as concerns refuse collection, if the tenant has the choice of supplier or may conclude a contract directly with the supplier, even if, for reasons of convenience, he does not exercise that choice or option, but obtains the service from the supplier designated by the landlord on the basis of a contract concluded between the landlord and the supplier, that circumstance points to the existence of a supply separate to the letting. If, in addition, the amount due for refuse collection and that due under the letting are itemised separately on the invoice, it must be considered that the landlord does not provide a single supply consisting of the letting and that supply.
5

Article 2 of that directive states as follows: ‘1. For the purposes of this Directive, the term “energy products” shall apply to products: (a) falling within CN codes 1507 to 1518, if these are intended for use as heating fuel or motor fuel; (b) falling within CN codes 2701, 2702 and 2704 to 2715; (c) falling within CN codes 2901 and 2902; (d) falling within CN code 2905 11 00, which are not of synthetic origin, if these are intended for use as heating fuel or motor fuel; (e) falling within CN code 3403; (f) falling within CN code 3811; (g) falling within CN code 3817; (h) falling within CN code 3824 90 99 if these are intended for use as heating fuel or motor fuel. 2. This Directive shall also apply to: Electricity falling within CN code 2716. 3. When intended for use, offered for sale or used as motor fuel or heating fuel, energy products other than those for which a level of taxation is specified in this Directive shall be taxed according to use, at the rate for the equivalent heating fuel or motor fuel. In addition to the taxable products listed in paragraph 1, any product intended for use, offered for sale or used as motor fuel, or as an additive or extender in motor fuels, shall be taxed at the rate for the equivalent motor fuel. In addition to the taxable products listed in paragraph 1, any other hydrocarbon, except for peat, intended for use, offered for sale or used for heating purposes shall be taxed at the rate for the equivalent energy product. 4. This Directive shall not apply to: … (b) the following uses of energy products and electricity: — energy products used for purposes other than as motor fuels or as heating fuels, — dual use of energy products. … 5. References in this Directive to codes of the combined nomenclature shall be to those of Commission Regulation (EC) No 2031/2001 of 6 August 2001, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff [(OJ 2001 L 279, p. 1; “the combined nomenclature”)]. A Decision to update the codes of the combined nomenclature for the products referred to in this Directive shall be taken once every year in accordance with the procedure laid down in Article 27. The Decision must not result in any changes in the minimum tax rates applied in this Directive or to the addition or removal of any energy products and electricity.’
30

With regard to the Commission’s argument that the transposing acts invoked by the Republic of Poland in its defence do not constitute mandatory provisions, that Member State replies that it is necessary to distinguish between, on the one hand, administrative practice, which may be freely amended and is not always properly disseminated, and, on the other hand, the procedures defined by means of medical rules, which function as a body of written rules based on scientific foundations and the application and validity of which are widely acknowledged by the medical profession and by patients. Those rules, the Republic of Poland submits, constitute a written frame of reference for procedures applicable to all persons involved in the provision of health care services and may, in principle, be amended only in accordance with developments in medical science. Thus, contrary to what is claimed by the Commission, those rules could not be treated as amounting to a mere administrative practice and regarded as lacking, in themselves, all binding character. Moreover, the programme of the Minister for Health entitled ‘Treatment of infertility by in vitro fertilisation for the period 2013–2016’ has an express legislative basis and provides for the organisation of actions in line with a defined plan setting priorities in the context of the development of solutions in the field of health protection.
3

Recitals 1 to 3, 5, 6 and 13 in the preamble to Regulation No 1889/2005 are worded as follows: ‘(1) One of the Community’s tasks is to promote harmonious, balanced and sustainable development of economic activities throughout the Community by establishing a common market and an economic and monetary union. To that end the internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. (2) The introduction of the proceeds of illegal activities into the financial system and their investment after laundering are detrimental to sound and sustainable economic development. Accordingly, Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering [OJ 1991 L 166, p. 77] introduced a Community mechanism to prevent money laundering by monitoring transactions through credit and financial institutions and certain types of professions. As there is a risk that the application of that mechanism will lead to an increase in cash movements for illicit purposes, Directive 91/308 … should be supplemented by a control system on cash entering or leaving the Community. (3) At present such control systems are applied by only a few Member States, acting under national legislation. The disparities in legislation are detrimental to the proper functioning of the internal market. The basic elements should therefore be harmonised at Community level to ensure an equivalent level of control on movements of cash crossing the borders of the Community. Such harmonisation should not, however, affect the possibility for Member States to apply, in accordance with the existing provisions of the Treaty, national controls on movements of cash within the Community. … (5) Accordingly, cash carried by any natural person entering or leaving the Community should be subject to the principle of obligatory declaration. This principle would enable the customs authorities to gather information on such cash movements and, where appropriate, transmit that information to other authorities. … (6) In view of its preventive purpose and deterrent character, the obligation to declare should be fulfilled upon entering or leaving the Community. However, in order to focus the authorities’ action on significant movements of cash, only those movements of EUR 10000 or more should be subject to such an obligation. Also, it should be specified that the obligation to declare applies to the natural person carrying the cash, regardless of whether that person is the owner. … (13) The powers of the competent authorities should be supplemented by an obligation on the Member States to lay down penalties. However, penalties should be imposed only for failure to make a declaration in accordance with this Regulation.’
Articles 2(1) and 4(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that, in circumstances such as those of the case in the main proceedings — where a taxable person has acquired plots of land, some of which have been assigned to his private assets and others to his business and, where he has built, in his capacity as a taxable person, upon all of those plots of land, a shopping centre which was then sold together with the plots of land on which the building was erected — the sale of the plots of land which were assigned to that taxable person’s private assets must be subject to value added tax since that person, at the time of that transaction, acted as such.
21

With regard to the second criterion, Article 2(1)(a) of Regulation No 1223/2009 sets out, in the definition of ‘cosmetic product’, the parts of the human body with which such a product is intended to be placed in contact. It gives an exhaustive list, as is abundantly clear from the detailed, precise wording of that provision, and from the fact that the EU legislature refrained in the drafting of that provision from adding any terms such as ‘as’, ‘for example’, ‘including’ or ‘etc.’, which would have indicated that the items listed were given merely by way of example. The lenses at issue are placed on the eye’s cornea, which is not referred to in that exhaustive list and does not appear in any other provision of Regulation No 1223/2009. It follows that the lenses at issue do not satisfy the second criterion.
7

Article 8 of the said directive, headed ‘Removal’, provides: ‘1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7. 2. If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period. 3. Member States may adopt a separate administrative or judicial decision or act ordering the removal. 4. Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned. 5. In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC 6. Member States shall provide for an effective forced-return monitoring system.’
3

Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), makes the following provision in Article 7(1) to (5), which forms part of Chapter II, entitled ‘Procedure regarding notified aid’: ‘1. Without prejudice to Article 8, the formal investigation procedure shall be closed by means of a decision as provided for in paragraphs 2 to 5 of this Article. 2. Where the Commission finds that, where appropriate following modification by the Member State concerned, the notified measure does not constitute aid, it shall record that finding by way of a decision. 3. Where the Commission finds that, where appropriate following modification by the Member State concerned, the doubts as to the compatibility of the notified measure with the common market have been removed, it shall decide that the aid is compatible with the common market (hereinafter referred to as a “positive decision”). The decision shall specify which exception under the [FEU] Treaty has been applied. 4. The Commission may attach to a positive decision conditions subject to which an aid may be considered compatible with the common market and may lay down obligations to enable compliance with the decision to be monitored (hereinafter referred to as a “conditional decision”). 5. Where the Commission finds that the notified aid is not compatible with the common market, it shall decide that the aid shall not be put into effect (hereinafter referred to as a “negative decision”).’
6

Article 2c of that directive, entitled ‘Time-limits for applying for review’, is worded as follows: ‘Where a Member State provides that any application for review of a contracting authority’s decision taken in the context of, or in relation to, a contract award procedure falling within the scope of [Directive 2004/18] must be made before the expiry of a specified period, this period shall be at least 10 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, this period shall be either at least 15 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate or at least 10 calendar days with effect from the day following the date of the receipt of the contracting authority’s decision. The communication of the contracting authority’s decision to each tenderer or candidate shall be accompanied by a summary of the relevant reasons. In the case of an application for a review concerning decisions referred to in Article 2(1)(b) of this Directive that are not subject to a specific notification, the time period shall be at least 10 calendar days from the date of the publication of the decision concerned.’
5

Article 6 of Directive 76/207 was amended as follows by Directive 2002/73: ‘1. Member States shall ensure that judicial and/or administrative procedures, including, where they deem it appropriate, conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended. 2. Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation as the Member States so determine for the loss and damage sustained by a person injured as a result of discrimination contrary to Article 3, in a way which is dissuasive and proportionate to the damage suffered; such compensation or reparation may not be restricted by the fixing of a prior upper limit, except in cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of this Directive is the refusal to take his/her job application into consideration. …’
4

Under Article 29(1) and (2) of the Customs Code: ‘1. The customs value of imported goods shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted, where necessary, in accordance with Articles 32 and 33, provided: … (d) that the buyer and seller are not related, or, where the buyer and seller are related, that the transaction value is acceptable for customs purposes under paragraph 2. (a) In determining whether the transaction value is acceptable for the purposes of paragraph 1, the fact that the buyer and the seller are related shall not in itself be sufficient grounds for regarding the transaction value as unacceptable. Where necessary, the circumstances surrounding the sale shall be examined and the transaction value shall be accepted provided that the relationship did not influence the price. If, in the light of information provided by the declarant or otherwise, the customs authorities have grounds for considering that the relationship influenced the price, they shall communicate their grounds to the declarant and he shall be given a reasonable opportunity to respond. If the declarant so requests, the communication of the grounds shall be in writing. (b) In a sale between related persons, the transaction value shall be accepted and the goods valued in accordance with paragraph 1 wherever the declarant demonstrates that such value closely approximates to one of the following occurring at or about the same time: (i) the transaction value in sales, between buyers and sellers who are not related in any particular case, of identical or similar goods for export to the Community; (ii) the customs value of identical or similar goods, as determined under Article 30(2)(c); (iii) the customs value of identical or similar goods, as determined under Article 30(2)(d). In applying the foregoing tests, due account shall be taken of demonstrated differences in commercial levels, quantity levels, the elements enumerated in Article 32 and costs incurred by the seller in sales in which he and the buyer are not related and where such costs are not incurred by the seller in sales in which he and the buyer are related. (c) The tests set forth in subparagraph (b) are to be used at the initiative of the declarant and only for comparison purposes. Substitute values may not be established under the said subparagraph.’