ddrg/super_eurlex huggingface dataset:
The examination of the question referred for a preliminary ruling has not disclosed any issues capable of affecting the validity of Article 4(4) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 2(k) thereof, having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU.

In that context, it must be held that, by laying down the obligation to carry out ritual slaughter in an approved slaughterhouse, which satisfies the requirements of Regulation No 853/2004, Article 4(4) of Regulation No 1099/2009, read together with Article 2(k) thereof, simply aims to organise and manage, from a technical point of view, the freedom to carry out slaughter without prior stunning for religious purposes. That technical framework is not in itself of such a nature as to place a restriction on the right to freedom of religion of practising Muslims. First, it must be recalled that Article 4(4) of Regulation No 1099/2009, read together with Article 2(k) thereof, makes ritual slaughter subject to the same technical conditions as those which apply, in principle, to any slaughter of animals within the European Union, regardless of the method followed. Second, it must be stated that, having laid down such technical specifications, the EU legislature reconciles compliance with the specific methods of slaughter prescribed by religious rites with those of the essential rules laid down by Regulations No 1099/2009 and No 853/2004 with regard to the protection of the well-being of animals at the time of killing and the health of all consumers of meat

(see paras 58-60, 62, 84, operative part)
Case C‑590/16

European Commission

v

Hellenic Republic

(Failure of a Member State to fulfil obligations — Directive 2008/118/EC — Article 7 — General arrangements for excise duty — Supply of petroleum products, without charging excise duty — Filling stations at the border of the Hellenic Republic with third countries — Chargeability of excise duty — Concept of ‘release for consumption’ of excise goods — Concept of ‘departure from a duty suspension arrangement’)

Summary — Judgment of the Court (Sixth Chamber), 8 February 2018

Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 — Chargeability of excise duty — Time and place where the chargeability occurred — Supplies of petroleum products — National legislation authorising the sale of tax-exempted petroleum products by filling stations at the border of the Member State in question with third countries — Not permissible — Failure to fulfil obligations

(Council Directive 2008/118, Art. 7(1))

A Member State which adopts and retains in force legislation allowing the sale of tax-exempted petroleum products by filling stations at border posts situated in regions bordering third countries fails to fulfil its obligations under Article 7(1) of Council Directive 2008/118 concerning the general arrangements for excise duty.

Indeed, those petroleum products are excise goods. Their departure from the duty suspension arrangement at the time vehicles are re-fuelled on the territory of the Hellenic Republic results in their release for consumption. Since, in accordance with Article 7(1) of Directive 2008/118, excise duty becomes chargeable at that precise time, the national legislation allowing the supply of those products without levying excise duty is contrary to that provision.

The placing of excise goods, after their departure from a duty suspension arrangement, under a customs export arrangement, does not alter that finding. First, since the re-fuelling of vehicles must be characterised as a ‘departure’ and, consequently, as a ‘release for consumption’ within the meaning of Article 7 of Directive 2008/118, the fact that the fuels are subsequently or even concurrently placed under a ‘customs export procedure’ has no bearing on the chargeability of the excise duty. Second, the national rules at issue relating to the implementation of the sale of the petroleum products do not fulfil the requirements of Directive 2008/118, pursuant to which either the sale of excise goods may be exempted from excise duty or such products may be exported under a duty suspension arrangement.

(see paras 46, 47, 49, 51, 58, operative part)
Case C‑579/16 P

European Commission

v

FIH Holding A/S and FIH Erhvervsbank A/S

(Appeal — State aid — Definition of ‘aid’ — Definition of ‘economic advantage’ — Market economy operator principle — Conditions governing applicability and application — Financial crisis — Successive bank bail outs — Whether account to be taken, in the assessment of the second bail out, of the risks arising from commitments entered into by a Member State in the first bail out)

Summary — Judgment of the Court (Grand Chamber), 6 March 2018

State aid—Definition—Assessment according to the criterion of the private investor—Information needed for an assessment—Risks resulting from State aid previously granted and linked to the State’s actions as a public authority

State aid—Definition—Assessment according to the criterion of the private investor—Assessment of all factors relevant to the transaction at issue and its context—Obligation on the Member State to provide all of the relevant elements for the examination of the criterion of the private investor

The classification of a measure as ‘State aid’ for the purposes of Article 107(1) TFEU requires all of the conditions set out in that provision to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition. As regards the third condition concerning selective advantage, interventions that, whatever their form, are likely directly or indirectly to favour certain undertakings, or fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions, are regarded as State aid. (see paras 43, 44)

Having regard to the objective of Article 107(1) TFEU of ensuring undistorted competition, including between public and private undertakings, the definition of ‘aid’, within the meaning of that provision, cannot cover a measure granted to an undertaking through State resources where it could have obtained the same advantage in circumstances which correspond to normal market conditions. The assessment of the conditions under which such an advantage was granted is therefore made, in principle, by applying the private operator principle. That principle is one of the factors that the Commission is required to take into account for the purposes of establishing the existence of aid and is not, therefore, an exception that applies only if a Member State so requests, when it has been found that the constituent elements of ‘State aid’, as laid down in Article 107(1) TFEU, exist. Consequently, when it appears that the private operator principle might be applicable, it is for the Commission to ask the Member State concerned to provide it with all the relevant information enabling it to determine whether the conditions for applying that test are satisfied. (see paras 45-47)
Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entails interference with their fundamental rights, enshrined in those articles of the Charter of Fundamental Rights, which is not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime.

In that regard, the sole purpose of the request at issue in the main proceedings, by which the police seeks, for the purposes of a criminal investigation, a court authorisation to access personal data retained by providers of electronic communications services, is to identify the owners of SIM cards activated over a period of 12 days with the IMEI code of the stolen mobile telephone. As noted in paragraph 40 of the present judgment, that request seeks access to only the telephone numbers corresponding to those SIM cards and to the data relating to the identity of the owners of those cards, such as their surnames, forenames and, if need be, addresses. By contrast, those data do not concern, as confirmed by both the Spanish Government and the Public Prosecutor’s Office during the hearing, the communications carried out with the stolen mobile telephone or its location. Without those data being cross-referenced with the data pertaining to the communications with those SIM cards and the location data, those data do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned. In those circumstances, access to only the data referred to in the request at issue in the main proceedings cannot be defined as ‘serious’ interference with the fundamental rights of the persons whose data is concerned.

As stated in paragraphs 53 to 57 of this judgment, the interference that access to such data entails is therefore capable of being justified by the objective, to which the first sentence of Article 15(1) of Directive 2002/58 refers, of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally, without it being necessary that those offences be defined as ‘serious’.

(see paras 59-63, operative part)
2.

Appeal—Grounds—Incorrect assessment of the facts and evidence—Review by the Court of the findings of fact—Possible only where the clear sense of the evidence has been distorted—Review of the legal classification given to the facts of the dispute—Included (Art. 256 TFEU) (see paras 79, 80)
3.

Agreements, decisions and concerted practices – Adverse effect on competition – Amicable agreement on patents – Agreement concluded between an originator company and a generic medicine undertaking – Agreement to delay the entry of the manufacturer of generic medicines into the relevant market – Consideration consisting in transfers of value – Characterisation of a restriction by object – Criteria – Assessment of whether transfers of value act as an incentive to refraining from entering the market (Art. 101(1) TFEU) (see paras 69-74)
The case in the main proceedings concerns, in essence, the validity of the contested decision in that it classified the cap on the EEG-surcharge as ‘State aid’ within the meaning of Article 107 TFEU. The Commission, relying on the judgment of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), submits that the request for a preliminary ruling is inadmissible on the ground that the applicants in the main proceedings did not bring an action for annulment against the contested decision before the General Court of the European Union.

It should be noted that, in paragraph 17 of that judgment, delivered in a case bearing similarities to the case in the main proceedings, the Court in essence held that, in particular for reasons of legal certainty, it is not possible for a recipient of State aid — which was the subject of a Commission decision that was directly addressed solely to the Member State from which that recipient comes — who could undoubtedly have challenged that decision on the basis of Article 263 TFEU and who allowed the mandatory period provided for in the sixth paragraph of that provision to lapse, effectively to call into question the legality of that decision before the national courts, in an action brought against the national measures implementing that decision (see, also, judgment of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 28).

However, the exception referred to in paragraph 14 above is also justified where the recipient of the aid relies, before a national court, on the invalidity of the Commission decision before the expiry of the time limit for challenging that decision, provided for in the sixth paragraph of Article 263 TFEU.

Thus, the possibility for a person to rely, in an action brought before a national court, on the invalidity of provisions contained in a measure of the European Union, which constitutes the basis of a national decision taken concerning him, presupposes either that he has also brought, pursuant to the fourth paragraph of Article 263 TFEU, an action for annulment of that EU measure within the prescribed time limits, or that he has not done so, as a result of not having the right to bring such an action (see, to that effect, judgments of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 46 and 48; of 17 February 2011, Bolton Alimentari, C‑494/09, EU:C:2011:87, paragraphs 22 and 23; and of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 67 and the case-law cited).

(see paras 12-14, 16, 17)
15

In those circumstances, the Handelsgericht Wien (Commercial Court, Vienna, Austria), seised of the dispute between AKM and Zürs.net, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling. ‘Are Article 3(1) or Article 5 of Directive [2001/29] and Article 11bis(1)(ii) of the Berne Convention to be interpreted as meaning that a rule which provides that the transmission of broadcasts by “communal antenna installations”, such as those of the defendant in the main proceedings, (a) does not constitute a new broadcast when no more than 500 subscribers are connected to the installation, and/or (b) constitutes part of the original broadcast when it involves the simultaneous, full and unaltered transmission of broadcasts of the Österreichischer Rundfunk using cable services within the country (Austria), and these uses are also not covered by any other exclusive right of communication to the public at a distance within the meaning of Article 3(1) of Directive 2001/29, and are therefore not subject to authorisation by the author and are also not subject to the obligation to pay a fee, is contrary to EU law or to the law of the Berne Convention as an international agreement which forms part of EU law?’
38

In those circumstances, the Augstākās tiesas Administratīvo lietu departaments (Supreme Court, Administrative Cases Division) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Must Article 203(1) of [the Customs Code] be interpreted as meaning that it is applicable provided that the complete cargo is not presented at the customs office of destination of the external Community transit procedure, even if it is proven to a satisfactory standard that the goods have been destroyed or irretrievably lost? (2) If the reply to the first question is in the negative, may sufficient proof of the destruction of the goods and, consequently, the fact that the goods are excluded from entering the economic channels of the Member State, justify application of Article 204(1)(a) and Article 206 of [the Customs Code], so that the amount of the goods destroyed during external transit is not included in the calculation of the customs debt? (3) If Article 203(1), Article 204(1)(a) and Article 206 of [the Customs Code] must be interpreted as meaning that customs duty on importation is payable on the amount of goods destroyed during external transit, must Article 2(1)(d), Article 70 and Article 71 of [the VAT Directive] be interpreted as meaning that [VAT] must be paid together with import duties, even if actual entry of the goods into the economic network of the Member State is excluded? (4) Must Article 96 of [the Customs Code] be interpreted as meaning that the principal is always liable for payment of that customs debt, as stated in the external Community transit procedure, irrespective of whether the carrier has fulfilled its obligations under Article 96(2)? (5) Must Article 94(1), Article 96(1) and Article 213 of [the Customs Code] be interpreted as meaning that the customs authority of the Member State is required to declare jointly and severally liable all those persons who, in the specific circumstances, may be regarded as liable for the customs debt together with the principal, in accordance with the provisions of the Customs Code? (6) If the reply to the previous question is in the affirmative and if the laws of the Member State link the obligation to pay value added tax on importation of goods, in general, to the procedure under which goods may be released for free circulation, are Articles 201, 202 and 205 of [the VAT Directive] to be interpreted as meaning that the Member State is required to declare jointly and severally liable for payment of value added tax all those persons who, in the specific circumstances, may be regarded as liable for the customs debt under [the Customs Code]? (7) If the reply to questions 5 or 6 is in the affirmative, may Article 96(1) and Article 213 of [the Customs Code], and Articles 201, 202 and 205 of [the VAT Directive] be interpreted as meaning that if the customs authority of the Member State has, because of error, failed to hold any of the persons responsible together with the principal jointly and severally liable for the customs debt, this fact alone may justify releasing the principal from liability for the customs debt?’
17

The referring court also takes the view that, in order to determine whether the amount charged by the provider of the transport services must be taken into account in determining the customs value, a distinction should be made according to the contract which was concluded by the importer. Accordingly, in the context of a contract for the carriage of goods within the meaning of Article 8:20 of the Civil Code, such a service provider may undertake to the buyer to transport goods to the territory of the European Union, without the buyer knowing whether that transport will be carried out by that service provider or by another operator. In that case, according to the referring court, the entirety of the amounts charged to the buyer by the service provider should be classified as costs of transport and should be added to the purchase price of the imported goods. By contrast, in the case of a freight forwarding contract within the meaning of Article 8:60 of the Civil Code, under which the service provider undertakes to act as an intermediary or to organise the transport, fees in payment for that activity may not constitute a ‘cost of transport’ within the meaning of Article 32(1)(e)(i) of the Customs Code.
27

In those circumstances, the cour d’appel de Mons (Court of Appeal of Mons) decided, on similar grounds in both cases, to stay the proceedings and to refer the same question in both cases to the Court of Justice for a preliminary ruling: ‘Is the fact that a company issuing a share option may recognise as income the grant date price of that option in the course of the accounting year in which that option is exercised or at the end of its period of validity, in order to take into account the risk borne by the option issuer which results from the commitment he makes, [rather than] in the course of the accounting year in which the grant of the option is made and the price definitively received — the liability borne by the issuer being valued separately by the recording of a provision — compatible with the accounting rules concerning balance sheets laid down by [Directive 78/660], according to which: — the annual accounts are to give a true and fair view of the company’s assets, liabilities, financial position and profit or loss (Article 2(3) of Directive 78/660); — provisions for liabilities and charges are intended to cover losses or debts the nature of which is clearly defined and which at the date of the balance sheet are either likely to be incurred, or certain to be incurred but uncertain as to amount or as to the date on which they will arise (Article 20(1) of Directive 78/660); — the principle of prudence must in all circumstances be observed, and in particular: — only profits made at the balance sheet date may be included; — account must be taken of all foreseeable liabilities and potential losses arising in the course of the financial year concerned or of a previous one, even if such liabilities or losses become apparent only between the date of the balance sheet and the date on which it is drawn up (Article 31(1)(c)(aa) and (bb) of Directive 78/660); — account must be taken of income and charges relating to the financial year to which the accounts relate, irrespective of the date of receipt or payment of such income or charges (Article 31(1)(d) of Directive 78/660); — the components of asset and liability items are to be valued separately (Article 31(1)(e) of Directive 78/660)?’
8

Article 34 of Legislative Decree No 276/2003 was repealed by decreto legislativo n. 81 (Legislative Decree No 81) of 15 June 2015 (Ordinary Supplement to GURI No 144 of 24 June 2015). However, its provisions were repeated, in essence, in Article 13 of the latter legislative decree, pursuant to which: ‘1. An on-call employment contract is a contract, also a fixed-term contract, under which a worker makes himself available to an employer to perform services of a discontinuous or intermittent nature in accordance with the requirements specified in the collective agreements, also for predetermined periods in the course of a week, month or year, In the absence of a collective agreement, a decree of the Minister for Employment and Social Policy shall determine the situations where on-call work may be used. 2. An on-call employment contract may, in all circumstances, be concluded with persons under 24 years of age, with the proviso that the contractual services must be performed before the age of 25 is reached, and persons over 55 years of age. 3. In any event, with the exception of the tourism, public venue and performance sectors, on-call employment contracts are permitted, for any worker with the same employer, for a total period not exceeding 400 days actually worked within three calendar years. If that period is exceeded, the contractual relationship becomes one of full-time employment for an indefinite period. 4. During the periods not worked, an on-call worker is not entitled to remuneration or any other right derived from the employment relationship unless he has given an undertaking to the employer to remain available to it on call, in which case he shall receive an availability payment provided for in Article 16. 5. The provisions of this section shall not apply to employment relationships within public administrations.’