ddrg/super_eurlex huggingface dataset:
13

Article 14 of that directive, headed ‘Personal interview’, provides: ‘1. Before a decision is taken by the determining authority, the applicant shall be given the opportunity of a personal interview on his or her application for international protection with a person competent under national law to conduct such an interview. Personal interviews on the substance of the application for international protection shall be conducted by the personnel of the determining authority. This subparagraph shall be without prejudice to Article 42(2)(b). Where simultaneous applications for international protection by a large number of third-country nationals or stateless persons make it impossible in practice for the determining authority to conduct timely interviews on the substance of each application, Member States may provide that the personnel of another authority be temporarily involved in conducting such interviews. In such cases, the personnel of that other authority shall receive in advance the relevant training … … 2. The personal interview on the substance of the application may be omitted where: (a) the determining authority is able to take a positive decision with regard to refugee status on the basis of evidence available; or (b) the determining authority is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his or her control. When in doubt, the determining authority shall consult a medical professional to establish whether the condition that makes the applicant unfit or unable to be interviewed is of a temporary or enduring nature. Where a personal interview is not conducted pursuant to point (b) or, where applicable, with the dependant, reasonable efforts shall be made to allow the applicant or the dependant to submit further information. 3. The absence of a personal interview in accordance with this Article shall not prevent the determining authority from taking a decision on an application for international protection. 4. The absence of a personal interview pursuant to paragraph 2(b) shall not adversely affect the decision of the determining authority. 5. Irrespective of Article 28(1), Member States, when deciding on an application for international protection, may take into account the fact that the applicant failed to appear for the personal interview, unless he or she had good reasons for the failure to appear.’
Judgment of the Court of Justice (First Chamber) of 15 May 2019 — CJ v ECDC

(Case C‑170/18 P) ( 1 )

(Appeal — Civil service — Contract staff — European Centre for Disease Prevention and Control — Fixed-term contract — Termination of the contract — Compliance with a judgment of the European Union Civil Service Tribunal — Res judicata by means of a judgment annulling a decision — Limits)

1. Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 23, 39, 41 and 67)

2. Judicial proceedings — Res judicata — Scope — Limits (see paras 49-55)

3. Appeal — Grounds — Pleas against a ground of the judgment not necessary to support the operative part — Invalid plea in law (Art. 256(1), TFEU; Statute of the Court of Justice, Art. 56, first para.) (see paras 56)

Operative part

The Court:

1. Dismisses the appeal;

2. Orders CJ to pay the costs.

( 1 ) OJ C 301, 27.8.2018.
Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Requirement that the distortion be obvious from the documents in the file

(Art. 256(1), second paras. (d), TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 38-49, 80)
Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Ground of appeal alleging distortion of the clear sense of the evidence — Need to indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to that distortion

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see para. 66)
Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures taken having regard to the situation in Ukraine – Restrictions on access to the EU capital market – Obligation to identify in the statement of reasons the specific and concrete elements justifying the said measure – Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him – Whether summary statement of reasons sufficient

(Art. 296, second para. TFEU, Council Decision 2014/512/CFSP, as amended by Decision 2014/659/CFSP; Council Regulation No 833/2014, as amended by Regulation No 960/2014)

(see paras 35-37, 41, 42)
2.

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the public interest — International relations — Scope — Refusal to divulge documents serving as a basis for the Commission’s proposal in the context of current negotiations on an international agreement — Whether permissible (European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), 3rd indent) (see paras 20, 21, 50, 61, 68)
3

Article 7 TEU provides: ‘1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply. 2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations. 3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State. …’
3

Recitals 40, 43 and 48 of Directive 2007/64 state: ‘(40) It is essential, for the fully integrated straight-through processing of payments and for legal certainty with respect to the fulfilment of any underlying obligation between payment service users, that the full amount transferred by the payer should be credited to the account of the payee. … … (43) In order to improve the efficiency of payments throughout the [European Union], all payment orders initiated by the payer and denominated in euro or the currency of a Member State outside the euro area, including credit transfers and money remittances, should be subject to a maximum one-day execution time. … In view of the fact that national payment infrastructures are often highly efficient and in order to prevent any deterioration in current service levels, Member States should be allowed to maintain or set rules specifying an execution time shorter than one business day, where appropriate. … (48) It should be possible for the payment service provider to specify unambiguously the information required to execute a payment order correctly. On the other hand, however, in order to avoid fragmentation and jeopardising the setting-up of integrated payment systems in the [European Union], Member States should not be allowed to require a particular identifier to be used for payment transactions. However, this should not prevent Member States from requiring the payment service provider of the payer to act in due diligence and verify, where technically possible and without requiring manual intervention, the coherence of the unique identifier, and where the unique identifier is found to be incoherent, to refuse the payment order and inform the payer thereof. The liability of the payment service provider should be limited to the correct execution of the payment transaction in accordance with the payment order of the payment service user.’
6

Article 14 of the Statute of the ESCB and of the ECB, entitled ‘National central banks’, provides: ‘14.1. In accordance with Article 131 of the Treaty on the Functioning of the European Union, each Member State shall ensure that its national legislation, including the statutes of its national central bank, is compatible with these Treaties and this Statute. 14.2. The statutes of the national central banks shall, in particular, provide that the term of office of a Governor of a national central bank shall be no less than five years. A Governor may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct. A decision to this effect may be referred to the Court of Justice by the Governor concerned or the Governing Council on grounds of infringement of these Treaties or of any rule of law relating to their application. Such proceedings shall be instituted within two months of the publication of the decision or of its notification to the plaintiff or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. 14.3. The national central banks are an integral part of the ESCB and shall act in accordance with the guidelines and instructions of the ECB. The Governing Council shall take the necessary steps to ensure compliance with the guidelines and instructions of the ECB, and shall require that any necessary information be given to it. 14.4. National central banks may perform functions other than those specified in this Statute unless the Governing Council finds, by a majority of two thirds of the votes cast, that these interfere with the objectives and tasks of the ESCB. Such functions shall be performed on the responsibility and liability of national central banks and shall not be regarded as being part of the functions of the ESCB.’
37

In the light of all of the foregoing, the answer to the question referred is that point (c) of the first paragraph of Article 66 of the VAT Directive must be interpreted as not precluding, if an invoice relating to the performance of the service supplied is not issued or is issued late, the formal acceptance of that service from being regarded as the time when that service was supplied, where, as in the case in the main proceedings, the Member State provides that VAT is to become chargeable on expiry of a time limit running from the day when the service was supplied, provided, first, that the formality of acceptance was stipulated by the parties in the contract that binds them according to contractual terms reflecting the economic and commercial realities in the field in which the service is supplied and, second, that that formality constitutes the actual completion of the service and determines the amount of consideration due, which is for the referring court to ascertain.
52

That conclusion is not invalidated by the interpretation of the principle of proportionality in point 2 of the operative part of the judgment of 26 March 2015, Macikowski (C‑499/13, EU:C:2015:201), which underlies the referring court’s second question. It must be recalled that, according to point 2 of that operative part, the Court held that the principle of proportionality does not preclude a provision of national law under which a court enforcement officer must be liable with his entire assets for the amount of VAT due on the proceeds of the sale of immovable property effected through enforcement where he does not discharge his obligation to collect and pay that tax, provided that he actually has all legal means to discharge that obligation. That answer must be read in the light of the circumstances of the case in which judgment was given on 26 March 2015, Macikowski (C‑499/13, EU:C:2015:201), which differ from those of the present case. The case in which that judgment was given, in contrast to the main proceedings in the present case, concerned the situation of a court enforcement officer not as a taxable person for VAT purposes but as a person liable for that tax on behalf of another taxable person and unable, until the competent national court gives its consent, to dispose of the sum obtained in the enforcement in question and pay the VAT on that sum within the periods prescribed by national law. Furthermore, in the dispute in the main proceedings in the present case, it does not appear from the information provided to the Court that the court enforcement officer was deprived of the legal means of complying with her tax obligation as a taxable person for VAT purposes.
29

In that order, the President of the Civil Service Tribunal ruled as follows: ‘29 According to settled case-law, the decisions taken following a competition organised in order to create a reserve list are not such as to cause irreparable harm to a candidate who is disadvantaged by an irregularity occurring during that competition, since where, in the course of such a competition, a test is judged to be unlawful, a candidate’s rights are adequately protected if the selection board and the [Appointing Authority (‘AA’)] reconsider their decisions and seek a fair resolution for that candidate, and it is unnecessary to call the competition results into question in their entirety, or to annul the appointments made following the competition (order of 1 February 2007, Bligny v Commission, F‑142/06 R, EU:F:2007:20, paragraph 24, and the case-law cited). 30 The case-law referred to in the preceding paragraph, however, concerns action taken following general competitions, as opposed to more limited selection tests such as that in which [Mr Galocha] participated. Moreover, although, in his application in the main proceedings, Mr Galocha requested the annulment of the reserve list and of the appointments made, it is clear from the facts of the case that the selection procedure at issue merely led to the creation of two reserve lists containing the names of a total of eight successful candidates, and to the appointment of one of those candidates, with a second appointment in progress at the time the present application was lodged. Furthermore, the unlawfulness identified prima facie does not concern only [Mr Galocha’s] situation, but affects the selection procedure as a whole. Therefore, the case-law [established by the order of 1 February 2007, Bligny v Commission (F‑142/06 R, EU:F:2007:20)], which is based on the principle of proportionality, does not apply here and cannot lead to the rejection of the application for a suspension of operation on grounds of lack of urgency. 31 That being so, a body which recommences or resumes a selection procedure following a judgment annulling the appointments made as a result of that procedure cannot, in assessing the qualifications and merits of the candidates, take account of the experience those candidates have acquired carrying out the duties attaching to their annulled appointments. In such cases, the seniority and experience acquired by the successful candidates who are appointed, but whose appointments are subsequently annulled, is deemed never to have existed. Where the selection procedure is resumed, it is, on the other hand, incumbent on those bodies, when assessing the applicants’ merits, to ensure that they do not grant the interested parties an undue advantage. As regards the “potential risk” that the AECE might give preferential treatment to the agents appointed following the selection procedure at issue, it is a mere assertion and it cannot be presumed that the AECE would act unlawfully by taking into account the experience acquired by the candidates whose appointments have been annulled.’
9

Article 221(1) and (3) of the code provided: ‘1. As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures. 2. Where the amount of duty payable has been entered, for guidance, in the customs declaration, the customs authorities may specify that it shall not be communicated in accordance with paragraph 1 unless the amount of duty indicated does not correspond to the amount determined by the authorities. Without prejudice to the application of the second subparagraph of Article 218(1), where use is made of the possibility provided for in the preceding subparagraph, release of the goods by the customs authorities shall be equivalent to communication to the debtor of the amount of duty entered in the accounts. 3. Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243 is lodged, for the duration of the appeal proceedings.’
11

In those circumstances, the juge de paix du troisième canton de Charleroi (Magistrate’s Court for the Third Canton of Charleroi) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) … Does the circumstance at issue in the present proceedings, that is to say, the spillage of petrol on a runway which caused that runway to be closed, fall to be classified under the notion of an “event” within the meaning of paragraph 22 of the judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771), or under that of “extraordinary circumstances” within the meaning of recital 14 of [Regulation No 261/2004], as interpreted by the judgment of 31 January 2013, McDonagh (C‑12/11, EU:C:2013:43), or do those two concepts merge? (2) … Must Article 5(3) of [Regulation No 261/2004] be interpreted as meaning that an event such as that at issue in the present proceedings, that is to say, the spillage of petrol on a runway which caused that runway to be closed, must be found to be an event inherent in the normal exercise of the activity of an air carrier and, accordingly, cannot be classified as an “extraordinary circumstance” capable of exonerating the air carrier from its obligation to compensate passengers in the case where a flight operated by that carrier is subjected to a significant delay? (3) If [an] event such as that at issue in the present proceedings, that is to say, the spillage of petrol on a runway which caused that runway to be closed, must be found to be an “extraordinary circumstance”, must it be inferred from this that, for the air carrier, this is an “extraordinary circumstance” that could not have been avoided even if all reasonable measures had been taken?’
24

In those circumstances, the Tribunalul Bacău (Regional Court, Bacău, Romania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the amount of EUR 400 provided for in Article 7(1)(b) of Regulation No 261/2004 intended to compensate primarily for the material damage, with the non-material damage being assessed pursuant to Article 12 thereof, or does Article 7(1)(b) of Regulation No 261/2004 primarily cover the non-material damage, with the material damage being subject to Article 12 thereof? (2) Does an amount corresponding to a loss of salary which exceeds the amount of EUR 400 established by Article 7(1)(b) of that regulation fall within the concept of “further compensation” referred to in Article 12 thereof? (3) Under the second sentence of Article 12(1) of Regulation No 261/2004, “the compensation granted under this Regulation may be deducted from such compensation”. Must that provision be interpreted as leaving to the national court’s discretion the decision to deduct from the further compensation the amount awarded under Article 7(1)(b) of that regulation, or is that deduction compulsory? (4) In the event that the deduction of that amount is not compulsory, what are the elements on the basis of which the national court is to decide whether to deduct from the further compensation the amount referred to in Article 7(1)(b)? (5) Must the damage caused as a result of the non-payment of salary, owing to the fact that an employee had been unable to be present at work by reason of his delayed arrival at his destination as a result of re-routing, be analysed from the perspective of fulfilment of the obligations provided for in Article 8 of Regulation No 261/2004, or Article 12 of that regulation, read in conjunction with Article 4 thereof? (6) Does an airline operator’s fulfilment of the obligation to provide assistance under Articles 4(3) and 8 of Regulation No 261/2004 mean presenting a passenger with comprehensive information regarding all that passenger’s re-routing options as provided for in Article 8(1)(a) to (c) of that regulation? (7). On whom does the burden of proving that the re-routing was done at the earliest opportunity under Article 8 of Regulation No 261/2004 rest? (8) Does Regulation No 261/2004 impose an obligation on passengers to carry out searches to identify other routes to their destination and to ask a company to find seats on those routes, or is the airline obliged to look, of its own motion, for the most advantageous option whereby those passengers may be transported to their destination? (9). Is the fact that passengers accepted an airline’s proposal offering them a flight on 11 September 2016, even though they could assume that they would not be paid for the period during which they were absent from work, relevant for determining the damage suffered by those passengers?’
13

Paragraph 312d of the BGB provides: ‘1. In the case of a distance contract the consumer has a right of withdrawal under Paragraph 355. … 2. Notwithstanding the first sentence of Paragraph 355(2), the withdrawal period does not begin before the information requirements under Paragraph 312c(2) have been fulfilled by the seller or supplier … and, in the case of services, not before the day on which the contract is concluded. 3. In the case of services, the right of withdrawal is also extinguished in the following cases: (1) In the case of financial services, where performance of the contract has been fully completed by both parties at the consumer’s express request before the consumer exercises his right of withdrawal … … 5. In addition, there is no right of withdrawal in the case of distance contracts in respect of which the consumer already has, on the basis of Paragraph 495 and Paragraphs 499 to 507, a right of withdrawal or right of repayment under Paragraph 355 or Paragraph 356. In the case of such contracts, the second subparagraph applies mutatis mutandis. 6. In the case of distance contracts in relation to financial services, notwithstanding Paragraph 357(1), the consumer must pay compensation for the value of the service provided in accordance with the governing termination on grounds of non-performance only if he has been informed of this legal effect before he accepts the contract and if he has expressly agreed to the supplier beginning performance of the service before the end of the withdrawal period.’