ddrg/super_eurlex huggingface dataset:
Case C‑584/14

European Commission

v

Hellenic Republic

‛Failure of a Member State to fulfil obligations — Environment — Directive 2006/12/EC — Directive 91/689/EEC — Directive 1999/31/EC — Waste management — Judgment of the Court establishing a failure to fulfil obligations — Non-implementation — Article 260(2) TFEU — Pecuniary penalties — Periodic penalty payment — Lump sum’

Summary — Judgment of the Court (Fifth Chamber), 7 September 2016

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Period for implementation — Reference date for assessing whether there has been a failure to fulfil obligations (Art. 260(2) TFEU)

Member States — Obligations — Implementation of directives — Failure to fulfil obligations — National system pleaded as justification — Unlawful (Art. 258 TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Imposition of a penalty payment — Condition — Failure to comply continuing up to the time of the Court’s examination of the facts (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Determination of the form to be taken and of the amount — Discretion of the Court — Criteria (Arts 258 TFEU and 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Calculation of the amount — Decreasing penalty payment (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Lump sum — Whether the two penalties should be cumulated — Lawfulness (Art. 260(2) TFEU)
19

In those circumstances, the Varhoven administrativen sad decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 193 of [the VAT Directive] be interpreted as meaning that either the taxable person who makes taxable supplies of goods or services, or the person who purchases the goods or receives the services, is exclusively liable for the VAT, where the taxable supply of goods or services is carried out by a taxable person who is not established in the Member State in which the VAT is payable, in so far as that is provided for by the Member State concerned, but not that both persons are simultaneously liable for that tax? (2) In so far as it is to be assumed that only one of the two persons is liable for the VAT — either the supplier/service provider or the purchaser/recipient — where that is provided for by the Member State concerned, is the rule in Article 194 of the [VAT Directive] also applicable to cases in which the recipient of the services wrongly applied the reverse charge procedure because it assumed that the service provider had not created a fixed establishment for the purposes of VAT in the territory of the Republic of Bulgaria, although the service provider had in fact created a fixed establishment in relation to the services supplied? (3) Must the principle of fiscal neutrality, which is of fundamental importance for the establishment and functioning of the common system of VAT, be interpreted as meaning that it permits a tax audit practice, such as that in the main proceedings, in accordance with which the VAT was also payable by the service provider despite the reverse charge procedure applied by the recipient of the supply of services, where account is taken of the fact that the recipient had already calculated the tax for the supply of services, that there is no risk of any loss of tax revenue and that the system for correction of tax documents provided for under national law is not applicable? (4) Must the principle of VAT neutrality be interpreted as meaning that it does not permit the tax authorities, on the basis of a national provision, to refuse to grant the provider of a service, in respect of which the recipient has calculated the VAT in accordance with Article 82(2) of the ZDDS, a refund of the VAT that has been paid twice, where the tax authorities have refused to grant the recipient the right to deduct the VAT paid twice on account of the absence of the corresponding tax document, but the system for correction provided for under national law on the basis of the present binding tax adjustment notice is no longer applicable?’
8

Article L. 162‑22‑7 of the Code de la sécurité sociale (French Social Security Code), in the version thereof applicable to the dispute in the main proceedings, is worded as follows: ‘The State shall establish the list of proprietary medicinal products authorised to be placed on the market and to be provided to inpatients in health establishments referred to in Article L. 162-22-6 which may be covered, upon presentation of invoices, by the compulsory health insurance schemes in addition to services relating to hospital treatment referred to in paragraph 1 therein, and the conditions under which certain products and services referred to in Article L. 165‑1 may be covered in addition to the abovementioned services relating to hospital treatment. Establishments which have joined the contract for proper use of medicinal products and services drawn up jointly by the director-general of the regional health agency and the health insurance scheme under terms defined by decree shall receive full reimbursement for the share covered by the compulsory health insurance schemes. Where the member establishment has not complied with the stipulations of that contract and has been put on formal notice to submit its observations, the reimbursement may be reduced by up to 30% of the share covered by the health insurance scheme, according to the breaches established. Establishments which have not joined the contract for proper use of medicinal products and services shall be reimbursed up to 70% of the share covered by the compulsory health insurance schemes. Under no circumstances may the difference between the reimbursable amount and the reimbursed amount be billed to patients. ...’
14

In the light of the factors mentioned above, the Commission, by the decision at issue, notified the French Republic on 3 May 2013, held as follows ‘Article 1 The compensation awarded to SNCM and CMN under the Public Service Delegation Contract of 7 June 2007 constitutes State aid within the meaning of Article 107(1) TFEU. That aid was granted in breach of the obligations laid down in Article 108(3) TFEU. Article 2 1. The compensation paid to SNCM for implementing the additional capacity provided for under sections I(a)(2), I(b)(2) and I(d)(1.4) of the specifications of the above-mentioned Public Service Delegation Contract is incompatible with the internal market. 2. The compensation paid to SNCM and CMN for the operation of other services provided under the above-mentioned Public Service Delegation Contract is compatible with the internal market. Article 3 1. France is required to make the beneficiaries repay the aid referred to in Article 2(1). 2. The sums to be recovered shall bear interest from the date on which they were made available to the recipient until the date of their actual recovery. 3. The interest is to be calculated on a compound basis in accordance with Chapter V of [Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 (OJ 2004 L 140, p. 1)] and [Commission Regulation (EC) No 271/2008 of 30 January 2008 amending Regulation (EC) No 794/2004 (OJ 2008 L 82, p. 1)]. 4. France shall cancel all outstanding payments of the aid in Article 2(1) with effect from the date of adoption of this Decision. Article 4 1. The recovery of the aid specified in the second paragraph of Article 1 shall be immediate and effective. 2. France shall ensure that this Decision is implemented within four months of the date of its notification. Article 5 1. Within two months of the notification of this Decision France shall submit the following information to the Commission: (a) the total amount (principal and recovery interests) to be recovered from the beneficiary; (b) a detailed description of the measures already taken and planned to comply with this Decision; (c) documents demonstrating that the beneficiary has been ordered to repay the aid; (d) the date and the exact amount of monthly instalments and annual adjustments made from the entry into force of the contract until the date of adoption of this Decision. 2. France shall keep the Commission informed of the progress of the national measures adopted pursuant to this Decision until the recovery of the aid specified in the second paragraph of Article 1 has been concluded. At the Commission’s request, it shall immediately submit information on the measures already adopted and planned for the purpose of complying with this Decision. It shall also provide detailed information concerning the amount of aid and interest already recovered from the beneficiary. Article 6 This Decision is addressed to the French Republic.’
30

In those circumstances the Korkein oikeus decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 1(2) of … Regulation [No 44/2001] to be interpreted as meaning that cases concerning the enforcement of a penalty payment (astreinte) imposed to ensure compliance with the principal obligation in a case concerning child custody or rights of access are outside the scope of the regulation? (2) If the cases set out in the preceding paragraph fall within the scope of … Regulation [No 44/2001], is Article 49 of [that] regulation to be interpreted as meaning that a periodic penalty payment which is enforceable as such in the amount stated in the State in which judgment was given, but whose final amount may be changed on the application or arguments of the party subject to the penalty payment, is enforceable in a[nother] Member State only if its amount has been separately determined in the State in which judgment was given? (3) If cases such as those identified above are outside the scope of … Regulation [No 44/2001], is Article 47(1) of … Regulation [No 2201/2003] to be interpreted as meaning that penalties and protective measures concerning child custody and rights of access fall within the enforcement procedure referred to in that provision which is governed by the legislation of the Member State of enforcement, or can they form part of the judgment concerning child custody and rights of access which is enforceable in another Member State under … Regulation [No 2201/2003]? (4) When enforcement of a penalty payment is sought in another Member State, is it a requirement that the amount of the penalty payment to be enforced has been finally determined separately in the Member State in which judgment was given, even if … Regulation [No 44/2001] does not apply in the enforcement proceedings? (5) If a periodic penalty payment imposed as a means to ensure compliance with rights of access is enforceable in another Member State without the amount of the penalty payment to be enforced having separately been finally determined: (a) does the enforcement of the penalty payment nevertheless require a review of whether the failure to comply with rights of access was based on obstacles which it was essential to take into consideration on account of the rights of children, and (b) which court has jurisdiction to examine such factors, more specifically, (i) is the jurisdiction of the court of the State of enforcement always limited solely to an examination of whether the alleged failure to comply with rights of access has occurred for reasons which are expressly set out in the judgment in the main proceedings, or (ii) does it follow from the protection of the rights of children in the Charter of Fundamental Rights of the European Union that the court of the State of enforcement has a more extensive right or obligation to examine whether the failure to comply with rights of access was based on grounds which it was essential to take into consideration in order to safeguard the rights of children?’
6

Article 3 of the Royal Decree of 14 October 1983 implementing Article 10a of Royal Decree No 50 (Moniteur Belge of 27 October 1983, p. 13650), in the version applicable to the facts of the case in the main proceedings (‘the Royal Decree of 14 October 1983’), provides as follows: ‘Each of the fractions referred to in the first paragraph of Article 10a … shall be multiplied by the denominator of the fraction taken into consideration in order to calculate the pension of the employed person. Where that pension is calculated on the basis of fractions with different denominators, those fractions shall be converted beforehand to the highest of those denominators and added together. The number of years to be deducted from the occupational record is equal to the positive difference, rounded down to the lower [occupational record] unit, between the sum of the products obtained pursuant to the previous paragraph and the denominator or the highest of the denominators on the basis of which the pension as an employed person is calculated. The number of years to be deducted may not exceed 15, nor the result rounded up to the next unit, obtained by dividing the difference between the converted amount and the standard amount by an amount equal to 10[%] of that standard amount. … The reduction in the occupational record is to be applied first to the least advantageous years in terms of pension entitlement.’
28

In those circumstances, the Raad van State decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is the transport of passengers by open sloop on the internal waterways of Amsterdam, with the main purpose of providing, for payment, tours and rentals for festive occasions, as in the case in the present proceedings, a service to which the provisions of Directive 2006/123 … apply, regard being had to the exception in Article 2(2)(d) of [that directive] in respect of services in the field of transport? (2) If the answer to Question 1 is in the affirmative: Does Chapter III of Directive 2006/123 … apply to purely internal situations, or is the assessment of the question as to whether that chapter applies subject to the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in purely internal situations? (3) If the answer to Question 2 is that the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in a purely internal situation applies to the assessment of the question as to whether Chapter III of Directive 2006/123 … is applicable: (a) Should the national courts apply the provisions laid down in Chapter III of Directive 2006/123 … in a situation such as that in the present case, in which the service provider has not established himself on a cross-border basis and does not offer services on a cross-border basis, but nevertheless relies on those provisions? (b) Is it relevant to the answer to that question that the services are expected to be provided mainly to residents of the Netherlands? (c) In order to answer that question, must it be determined whether undertakings established in other Member States have shown or will show genuine interest in providing the same or comparable services? (4) Does it follow from Article 11(1)(b) of Directive 2006/123 … that, if the number of authorisations is limited by an overriding reason relating to the public interest, the duration of the validity of the authorisations must also be limited, regard being had also to the objective pursued by [that directive] of securing free access to the market for services, or is this a matter which lies within the discretion of the competent authority of the Member State?’
37

In those circumstances, the Helsingin hovioikeus (Helsinki Court of Appeal), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the permissibility of the Finnish system of beverage packaging duty, under which beverage packaging duty is levied if the packaging is not part of a return system, to be examined in the light of Article 110 TFEU instead of Article 34 TFEU? The return system in question must be a deposit-based system under which the packer of the alcoholic beverages or the importer alone or in accordance with the provisions laid down in the Law on Waste or in the corresponding legislation of the Åland Islands [Finland] takes care of the reuse or recycling of beverage packagings so that the packaging is refilled or recovered as raw material. (2) If the answer to Question 1 is affirmative, is that system compatible with Articles 1(1), 7 and 15 of Directive 94/62/EC when examined in combination with Article 110 TFEU? (3) If the answer to Question 1 is negative, is that system compatible with Articles 1(1), 7 and 15 of Directive 94/62/EC when examined in combination with Article 34 TFEU? (4) If the answer to Question 3 is negative, is the Finnish beverage packaging duty system to be regarded as authorised on the basis of Article 36 TFEU? (5) May the requirement that a person using alcoholic beverages for commercial or other business purposes needs a separate retail sale licence for his activity relating to imported alcoholic beverages, in a situation in which a Finnish buyer has purchased via the internet or another method of distance selling from a vendor in another Member State alcoholic beverages which the vendor transports to Finland, be regarded as concerning the existence of a monopoly or as part of the operation of a monopoly, so that the provisions of Article 34 TFEU are not therefore an impediment to it, but it is to be evaluated in the light of Article 37 TFEU? (6) If the answer to Question 5 is affirmative, is that licence requirement in such a case compatible with the conditions laid down for State monopolies of a commercial character in Article 37 TFEU? (7) If the answer to Question 5 is negative and Article 34 TFEU is applicable to the case, is the Finnish system, under which, where alcoholic beverages are ordered from abroad via the internet or another means of distance selling, their import for personal consumption is permitted only if the person ordering the goods or a person unconnected to the vendor transported the alcoholic beverages into Finland, and under which a licence in accordance with the Law on Alcohol is otherwise required for the import, a quantitative restriction on imports or a measure having equivalent effect contrary to Article 34 TFEU? (8) If the answer to the preceding question is affirmative, can the system be considered justified and proportionate in order to protect the health and life of humans?’
10

Article 365 of the implementing regulation, in force until 30 June 2009, provided: ‘1. If copy No 5 of the transit declaration is not returned to the customs authorities of the Member State of departure within two months of the date of acceptance of the declaration, those authorities shall inform the principal and ask him to furnish proof that the procedure has ended. 1a. Where the provisions of Section 2 subsection 7 apply and the customs authorities of the Member States of departure have not received the “Arrival Advice” message by the time limit within which the goods must be presented at the office of destination those authorities shall inform the principal and ask him to furnish proof that the procedure has ended. 2. The proof referred to in paragraph 1 may be furnished to the satisfaction of the customs authorities in the form of a document certified by the customs authorities of the Member State of destination identifying the goods and establishing that they have been presented at the office of destination or, where Article 406 applies, to the authorised consignee. 3. The Community transit procedure shall also be considered as having ended where the principal presents, to the satisfaction of the customs authorities, a customs document issued in a third country entering the goods for a customs-approved treatment or use, or a copy or photocopy thereof, identifying the goods. Copies or photocopies must be certified as being true copies by the body which certified the original documents, by the authorities of the third countries concerned or by the authorities of one of the Member States.’
6

The second to sixth recitals in the preamble to Directive 90/425 are worded as follows: ‘Whereas the harmonious operation of the common organisation of the market in animals and products of animal origin implies the dismantling of zoo technical and veterinary barriers to the development of intra-Community trade in the animals and products concerned; whereas, in this respect, the free movement of animals and agricultural products is a fundamental feature of the common organisation of markets and should facilitate the rational development of agricultural production and the optimum use of the factors of production; Whereas, in the veterinary field, frontiers are currently being used for carrying out checks aimed at safeguarding public health and animal health; Whereas the ultimate aim is to ensure that veterinary checks are carried out at the place of dispatch only; whereas the attainment of this objective implies the harmonisation of the basic requirements relating to the safeguarding of animal health; Whereas, with a view to the completion of the internal market, pending the attainment of this objective, emphasis should be placed on the checks to be carried out at the place of dispatch and in organising those that could be carried out at the place of destination; whereas such a solution would entail the suspension of veterinary checks at the Community’s internal frontiers and whereas, in this context, there is good reason for retaining a health certificate or an identification document, as provided for in Community rules; …’
3

The first to fourth sentences of Paragraph 2a(3) of the Law on income tax (Einkommensteuergesetz, ‘the EStG’), in the version applicable to the tax years 1997 and 1998, provide: ‘If the revenue from the industrial or commercial activities of an establishment situated in a foreign State is exempt from income tax under a double taxation convention, any loss relating to that revenue in accordance with the provisions of national tax law must, at the request of the taxpayer, be deducted in the calculation of the total amount of the revenue, in so far as the taxpayer could offset or deduct the loss if the revenue was not exempt from income tax and provided that such loss exceeds the positive revenue from the industrial or commercial activities of other establishments situated in the same foreign State exempt under that convention. In so far as the loss is not thereby offset, the deduction of losses is permitted if the conditions of Paragraph 10d are satisfied. If, in a subsequent tax assessment period, the total amount of revenue from the industrial or commercial activities of permanent establishments situated in that foreign State which is exempt from income tax under the convention is positive, the loss deducted pursuant to the first and second sentences must be reincorporated into the total amount of the revenue calculated for that tax assessment period. The third sentence shall not apply if the taxpayer demonstrates that it is not generally permitted under the provisions of the foreign State applicable to it to carry forward the deduction of losses to a tax assessment period other than the tax assessment period in which the losses were incurred.’