ddrg/super_eurlex huggingface dataset:
Case C‑30/17

Dyrektor Izby Celnej w Poznaniu

v

Kompania Piwowarska S.A. w Poznaniu

(Request for a preliminary ruling from the Naczelny Sąd Administracyjny)

(Reference for a preliminary ruling — Tax provisions — Excise duties — Directive 92/83/EEC — Article 3(1) — Alcohol and alcoholic beverages — Beer — Flavoured beer — Degree Plato — Method of calculation)

Summary — Judgment of the Court (Fourth Chamber), 17 May 2018

Tax provisions — Harmonisation of laws — Excise duties — Directive 92/83 — Alcohol and alcoholic beverages — Calculation of the amount of excise duty — Assessment according to the Plato scale — Method of calculation

(Council Directive 92/83, Art. 3(1))

Article 3(1) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages must be interpreted as meaning that in order to determine the basis of assessment for flavoured beers according to the Plato scale, the dry extract of the original wort must be taken into consideration but not the aromatic substances or sugar syrup added after the completion of fermentation.

In that connection, first, it is common ground that, according to its usual meaning in brewing, the Plato scale enables the calculation of the percentage of dry extract in the mass of the original wort, one degree Plato being equivalent to 1 g of dry extract per 100 g of original wort. It follows that, as is commonly understood in brewing, the degree Plato is calculated without taking into account the aromatic substances and sugar syrup added in flavoured beer after the fermentation process.

Second the contextual analysis confirms that, within the framework of Directive 92/83, the calculation of the degrees Plato of flavoured beer cannot take account of the aromatic substances and sugar syrup added after the fermentation process has been completed.

(see paras 28, 31, 43, operative part)
Approximation of laws — Procedures for the award of public service, public supply and public works contracts and public contracts in the water, energy, transport and telecommunications sectors — Directives 2004/17 and 2004/18 — Temporal application — Decision of the contracting authority selecting the type of procedure to be followed for the award adopted after the repeal of the directives — Inapplicability of the directives

(European Parliament and Council Directives 2004/17, 2004/18, 2014/24, Arts 90 and 91, and 2014/25, Arts 106 and 107)
Appeal—Grounds—Mistaken assessment of the facts—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), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 33-35)
1.

By failing to adopt the measures necessary: – to close, by 16 July 2009 at the latest, in accordance with Article 7(g) and Article 13 of Council Directive 1999/31/EC or 26 April 1999 on the landfill of waste, the landfill sites of Dragonja, Dvori, Rakek-Pretržje, Bukovžlak-Cinkarna, Suhadole, Lokovica, Mislinjska Dobrava, Izola, Mozelj, Dolga Poljana, Dolga vas, Jelšane, Volče, Stara gora, Stara vas, Dogoše, Mala gora, Tuncovec-Steklarna, Tuncovec-OKP and Bočna-Podhom, which have not obtained operation permits in accordance with Article 8 of that directive, and – to ensure, by 16 July 2009 at the latest, that the Ostri vrh landfill site complies with the requirements of Directive 1999/31, with the exception of those set out in point 1 of Annex I thereto, the Republic of Slovenia has failed to fulfil its obligations under Article 14(b) and Article 14(c) of Directive 1999/31.
Transport — Road transport — Social provisions — Regulation No 561/2006 — Administrative penalty for an infringement committed in the Member State of the seat of an undertaking imposed by the authorities of another Member State who detected the infringement in that State — Lawfulness

(European Parliament and Council Regulation No 561/2006, Art. 19(2), first subpara.)
Case C‑238/17

UAB ‘Renerga’

v

AB ‘Energijos skirstymo operatorius’ and AB ‘Lietuvos energijos gamyba’

(Request for a preliminary ruling from the Vilniaus miesto apylinkės teismas)

(Reference for a preliminary ruling — Directive 2009/72/EC — Article 3(2), (6) and (15) and Article 36(f) — Internal market in electricity — Hypothetical nature of the questions referred for a preliminary ruling — Inadmissibility of the request for a preliminary ruling)

Summary — Judgment of the Court (Third Chamber), 14 November 2018

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Request for an interpretation of provisions of EU law that are manifestly inapplicable in the dispute in the main proceedings — Inapplicability of Directive 2009/72 with regard to an electricity producer that is not subject to public service obligations — Inadmissibility

(Art. 267 TFEU; European Parliament and Council Directive 2009/72, Art. 3(2))

The request for a preliminary ruling from the Vilniaus miesto apylinkės teismas (District Court, City of Vilnius, Lithuania), made by decision of 11 April 2017, is inadmissible.

In that regard, Article 3(2) of Directive 2009/72 provides that, having full regard to the relevant provisions of the EC Treaty, in particular Article 86 thereof, Member States may impose on undertakings operating in the electricity sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and environmental protection, including energy efficiency, energy from renewable sources and climate protection.

In its response, the referring court stated that Lithuanian legislation did not impose a mandatory obligation on Renerga to produce and supply electricity from renewable energy sources. According to that court, Renerga was not included on the list of public service providers that was adopted by the Lithuanian Government, but voluntarily undertook to generate electricity and to sell it to the defendants in the main proceedings. The referring court also stated that the legal relations between Renerga and the defendants in the main proceedings were defined by the contracts concluded by them on 7 January and 19 June 2013 and were governed by civil law, and that these contracts could be terminated, so that it would be incorrect to state that Renerga was obliged to provide public services. Thus, the response provided by the referring court must be understood as meaning that the Member State concerned did not impose any public service obligation within the meaning of Article 3(2) of Directive 2009/72 on Renerga.

It follows that the provisions of EU law whose interpretation is sought are not applicable, either directly or indirectly, to the circumstances of the case in the main proceedings and that, consequently, all of the questions referred in the context of that case are hypothetical.

(see paras 23, 26-28, operative part)
In an action for annulment, an interest in bringing proceedings must continue until the end of the proceedings and the Court hearing the case may raise of its own motion and at any stage of the proceedings the objection that a party has no interest in maintaining its application, by reason of the occurrence of a fact subsequent to the date on which the document instituting the proceedings was lodged. In that regard, if the Courts of the European Union may raise of their own motion and at any stage of the proceedings a question relating to the lack of a continuing interest of an applicant in bringing proceedings, it may also examine such a question when it has been raised during the proceedings by a party who relies for that purpose on sufficiently serious evidence. In the context of that examination, it is for the Courts of the European Union to invite the applicant to express its views on that question and to afford it the opportunity of submitting material such as to show in a relevant manner its continuing interest in bringing proceedings.

(see paras 38-40)
EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Scope — Application to administrative files relating to procedures for reviewing State aid — General presumption that the exception applies to the right of access to all the documents in the administrative file — Request concerning only some of the documents in that file — Irrelevant

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)

(see para. 31)
18

As regards the first plea in law raised by the applicants in the main proceedings, the referring court has indicated that it intends to reject it, confirming the view taken by the Tribunale amministrativo regionale per la Sardegna (Regional Administrative Court, Sardinia) that, since it is functionally linked to special sectors, the contract at issue in the main proceedings is covered by the provisions of Legislative Decree No 163/2006 applicable to those sectors. The referring court states that it also intends to reject the second plea raised by the applicants in the main proceedings, on the grounds that those provisions, which are mandatory in nature, take precedence over Article 1664 of the Civil Code, that the parties in the main proceedings provided a special rule derogating from that article and that the condition relating to ‘unforeseeable circumstances’ referred to in that article was not satisfied in the present case. The referring court nonetheless considers, since it is a court of last instance and the applicants in the main proceedings have made a submission to that effect, that it is its duty to verify the compliance with EU law of, in particular, Article 206 of Legislative Decree No 163/2006, in so far as it precludes the application of Article 115 of that decree not only to contracts in the special sectors but also, as a result of judicial interpretation, service contracts which, even if they are not covered by special sectors, are functionally linked to these sectors. In addition, the referring court considers that it is required, according to the case-law of the Court, to refer the question of the validity of Directive 2004/17 raised by the applicants in the main proceedings.
4

Recitals 11, 12, 18, 40, 41 and 42 of Directive 2013/32 state: ‘(11) In order to ensure a comprehensive and efficient assessment of the international protection needs of applicants within the meaning of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [(OJ 2011 L 337, p. 9)], the Union framework on procedures for granting and withdrawing international protection should be based on the concept of a single procedure. (12) The main objective of this Directive is to further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Union. … (18) It is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out. … (40) A key consideration for the well-foundedness of an application for international protection is the safety of the applicant in his or her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he or she presents counter-indications. (41) Given the level of harmonisation achieved on the qualification of third-country nationals and stateless persons as beneficiaries of international protection, common criteria should be established for designating third countries as safe countries of origin. (42) The designation of a third country as a safe country of origin for the purposes of this Directive cannot establish an absolute guarantee of safety for nationals of that country. By its very nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in that country. For that reason, it is important that, where an applicant shows that there are valid reasons to consider the country not to be safe in his or her particular circumstances, the designation of the country as safe can no longer be considered relevant for him or her.’
24

In those circumstances, the Varhoven administrativen sad (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: (1) Are Articles 151 and 153 TFEU and Articles 3, 4, 11 and 12 of Directive [2008/94] to be interpreted as permitting a national provision such as Article 4(1) of the [Law on employees’ guaranteed claims], under which persons whose employment was terminated prior to the three-month period provided for before registration of the decision initiating insolvency proceedings in respect of the employer are excluded from the protection of outstanding wage claims? (2) If the first question is answered affirmatively, is the procedural autonomy of the Member States, in the light of the principles of equivalence, effectiveness and proportionality in the context of the social objective underpinning Articles 151 and 153 TFEU and Directive 2008/94, to be construed as permitting a national measure, such as Article 25 of the [Law on employees’ guaranteed claims], which provides that, on expiry of a period of two months from the date of registration of the judicial decision initiating insolvency proceedings, the rights to assert and obtain satisfaction of guaranteed claims are extinguished if the domestic law of the Member State contains a provision, such as Article 358(1)(3) of the Employment Code, under which the period for asserting outstanding wage claims is three years from the date on which the claim ought to have been met and payments made after expiry of this period are not deemed to have been made without a legal basis? (3) Is Article 20 of the [Charter] to be interpreted as permitting such a distinction to be made, on the one hand, between employees with outstanding claims whose employment was terminated before the three-month period before registration of the judicial decision initiating insolvency proceedings in respect of the employer and employees whose employment was terminated during the three-month period laid down and, on the other hand, between those employees and employees who, under Article 358(1)(3) of the Employment Code, are entitled on the termination of their employment to protection of their outstanding claims during a period of three years commencing at the time when the claim ought to have been met? (4) Is Article 4, read with Article 3, of Directive 2008/94 and with the principle of proportionality, to be interpreted as permitting a provision, such as Article 25 of the [Law on employees’ guaranteed claims], under which the rights to assert and to obtain satisfaction of guaranteed claims are automatically extinguished, without any possibility of an individual assessment of the relevant factors, on expiry of a two-month period from the date of registration of the judicial decision initiating insolvency proceedings?’
12

Article 395 of Regulation No 575/2013, entitled ‘Limits to large exposures’, provides, in paragraphs 1 and 5 thereof: ‘1. An institution shall not incur an exposure, after taking into account the effect of the credit risk mitigation in accordance with Articles 399 to 403, to a client or group of connected clients the value of which exceeds 25% of its eligible capital. Where that client is an institution or where a group of connected clients includes one or more institutions, that value shall not exceed 25% of the institution’s eligible capital or EUR 150 million, whichever the higher, provided that the sum of exposure values, after taking into account the effect of the credit risk mitigation in accordance with Articles 399 to 403, to all connected clients that are not institutions does not exceed 25% of the institution’s eligible capital. Where the amount of EUR 150 million is higher than 25% of the institution’s eligible capital the value of the exposure, after taking into account the effect of credit risk mitigation in accordance with Articles 399 to 403, shall not exceed a reasonable limit in terms of the institution’s eligible capital. That limit shall be determined by the institution in accordance with the policies and procedures referred to in Article 81 of [Directive 2013/36], to address and control concentration risk. This limit shall not exceed 100% of the institution’s eligible capital. Competent authorities may set a lower limit than EUR 150 million and shall inform [the European Banking Authority (EBA)] and the Commission thereof. … 5. The limits laid down in this Article may be exceeded for the exposures on the institution’s trading book if the following conditions are met: (a) the exposure on the non-trading book to the client or group of connected clients in question does not exceed the limit laid down in paragraph 1, this limit being calculated with reference to eligible capital, so that the excess arises entirely on the trading book; (b) the institution meets an additional own funds requirement on the excess in respect of the limit laid down in paragraph 1 which is calculated in accordance with Articles 397 and 398; (c) where ten days or less have elapsed since the excess occurred, the trading-book exposure to the client or group of connected clients in question shall not exceed 500% of the institution’s eligible capital; (d) any excesses that have persisted for more than 10 days do not, in aggregate, exceed 600% of the institution’s eligible capital. In each case in which the limit has been exceeded, the institution shall report the amount of the excess and the name of the client concerned and, where applicable, the name of the group of connected clients concerned, without delay to the competent authorities.’
34

As concerns the causal link, the General Court found, in paragraph 73 of the judgment under appeal, that even if all the damage the appellant claimed to have suffered were proven, the existence of a direct causal link could not, in any event, be established between that damage and the Commission’s unlawful conduct. In that regard, the General Court, in the first place, considered: ‘74. … It should be noted that Broncho-Air Medizintechnik had informed the German authorities, by letter of 22 May 1997, of its intention to voluntarily cease the sale of the Inhaler device until further trials and studies on the conformity of that device with Directive 93/42 became available. Furthermore, according to that letter, the Inhaler device had not, by decision of the distributing company, been placed on the market since 1 January 1997 and had not been marketed in any Member State other than [the Federal Republic of Germany]. The letter stated in conclusion that the German authorities and the Federal Institute for Medicinal Products and Medical Devices would be contacted again as soon as new information concerning the safety of the device became available. 75 It follows that cessation of placing on the market and selling of the Inhaler device took place, as noted by the Commission and the Federal Republic of Germany, before adoption, on 23 September 1997, of the decision prohibiting marketing of that device and before the Commission was informed of that decision, in accordance with Article 8(1) of Directive 93/42, on 7 January 1998. The damage alleged by the applicant, which inter alia consists, according to him, in loss of sales of the Inhaler device and other claims arising from that loss of sales, therefore resulted from the decision taken, on its own initiative, by Broncho-Air Medizintechnik and not from the Commission’s alleged failure to act. Furthermore, it must be held, contrary to the submissions of the applicant, that it is irrelevant in that regard that the Commission only became aware of that cessation of sales at a later stage in the procedure. 76 Moreover, although the applicant claims that the Inhaler device was not distributed from 1997 onwards due to the prohibition decision [of 23 September 1997] and to the Commission’s failure to act, it is clear that such an argument is contradicted by atmed’s statements in the email it sent to the Commission on 18 December 2006, which confirms cessation of distribution of the Inhaler device was voluntary. It should be noted that, in that email, atmed explained that “[the safeguard clause procedure of 1998] became devoid of purpose shortly after the letter of [7 January 1998] since the then manufacturer had stated that it would no longer market the device until additional studies had proved it was safe”. That email also noted that a statement to that effect had been made “orally before the German authorities in January 1997 and confirmed in writing on 22 May 1997”.’
23

It is on that basis that the Consiglio di Stato (Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Do the EU rules on the award of public works contracts, public service contracts and public supply contracts, and in particular Articles 1 and 2 of [Directive 2004/18], also include within their scope complex operations whereby a public contracting authority means to award directly to a given economic operator specific-purpose funding, the sole purpose of which is the manufacture of products intended to be supplied free of charge, without any subsequent tendering procedure, to various authorities which are not required to make any payment to the supplier; and, consequently, do the abovementioned rules of EU law preclude national rules which permit the direct award of specific-purpose funding for the manufacture of products intended to be supplied free of charge, without any subsequent tendering procedure, to various authorities which are not required to make any payment to the supplier? (2) Do the EU rules on the award of public works contracts, public service contracts and public supply contracts, and in particular Articles 1 and 2 of [Directive 2004/18] and Articles 49, 56 and 105 [TFEU et seq.], preclude national rules which treat private “classified” hospitals as the equivalent of public hospitals, by bringing them within the system of national public healthcare planning, governed by special agreements that are distinct from ordinary accreditation relationships with other private parties that participate in the system of provision of healthcare services, in the absence of the requirements for recognition as a body governed by public law and the requirements for direct awards in accordance with the “in-house provision” model, and thereby take them outside the scope of national and EU rules on public contracts, including in cases where such classified hospitals are entrusted with the manufacture and supply, free of charge, to public healthcare establishments of specific products which are necessary for the provision of healthcare services and where, at the same time, they receive specific-purpose public funding for the purpose of providing such supplies?’