ddrg/super_eurlex huggingface dataset:
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Environment – Freedom of access to information – Directive 2003/4 – Exceptions

(European Parliament and Council Directive 2003/4, Art. 4(2))

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Article 4(2) of Directive 2003/4 on public access to environmental information must be interpreted as meaning that, when a public authority holds environmental information or such information is held on its behalf, it may, when weighing the public interests served by disclosure against the interests served by refusal to disclose, in order to assess a request for that information to be made available to a natural or legal person, take into account cumulatively a number of the grounds for refusal set out in that provision.

(see para. 32, operative part)
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Free movement of capital – Restrictions – Tax legislation – Inheritance tax

(Art. 63 TFEU)

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Article 63 TFEU must be interpreted as precluding legislation of a Member State which provides, as regards inheritance tax, for a limitation period of 10 years for the valuation of registered shares in a company in which the deceased was a shareholder and whose centre of effective management is established in another Member State, while the same limitation period is 2 years when the company’s centre of effective management is in the first Member State.

The application of a longer limitation period to heirs holding shares in a company whose centre of effective management is established in another Member State may have the effect of deterring residents of the first State from investing or maintaining investments in assets situated outside that Member State, given that their heirs will experience a longer period of uncertainty as to the possibility of being subject to a tax adjustment.

Such legislation is not justified by the need to guarantee the effectiveness of fiscal supervision or the objective of the prevention of tax evasion insofar as the general application of the 10-year limitation period is in no way based on the time needed to have effective recourse to mechanisms of mutual assistance or other alternative means of investigating the value of the shares concerned. A situation in which taxable items have been concealed from the national tax authorities, and those authorities do not have any evidence which would enable an investigation to be initiated, must be distinguished from the situation in which those authorities have evidence concerning those taxable items. When the tax authorities of a Member State have evidence enabling them to request the competent authorities of other Member States, whether by way of the mutual assistance provided for in Directive 77/799, concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, or of that provided for under bilateral conventions, to communicate to them the information necessary to establish the correct amount of tax due, the mere fact that the taxable items concerned are located in another Member State does not justify the general application of an additional recovery period which is in no way based on the time needed to have effective recourse to those mechanisms of mutual assistance.

(see paras 24, 30, 33, 36, 39-40, operative part)
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Privileges and Immunities of the European Union – Members of the European Parliament – Immunity in respect of opinions expressed and votes cast in the performance of their duties

(Protocol on Privileges and Immunities of the European Union, Art. 8)

Summary

Article 8 of the Protocol on the Privileges and Immunities of the European Union must be interpreted to the effect that a statement made by a Member of the European Parliament beyond the precincts of that institution and giving rise to prosecution in his Member State of origin for the offence of making false accusations does not constitute an opinion expressed in the performance of his parliamentary duties covered by the immunity afforded by that provision unless that statement amounts to a subjective appraisal having a direct, obvious connection with the performance of those duties. It is for the court making the reference to determine whether those conditions have been satisfied in the circumstances of this case.

(see para. 41, operative part)
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Transport – Road transport – Driving licences – Directive 91/439 – Mutual recognition of driving licences – Temporary suspension of a driving licence for vehicles in category B in one Member State, followed by withdrawal – Licence issued in another Member State during the temporary suspension period for the licence for category B – Failure by that Member State to observe the residence condition

(Council Directive 91/439, as amended by Directive 2000/56, Arts 1(2), 5(1)(a), 7(1)(b) and 8(2) and (4))

Summary

Articles 1(2), 5(1)(a), 7(1)(b) and 8(2) and (4) of Directive 91/439 on driving licences, as amended by Directive 2000/56, do not preclude a host Member State from refusing to recognise a driving licence for vehicles in categories B and D issued by another Member State, first, if the holder of that driving licence was granted the right to drive vehicles in category B in disregard of the normal residence condition and after his driving licence issued by the first Member State had been confiscated by the police authorities in that first Member State but before the right to drive was withdrawn by court order in that first Member State, and, second, if the holder of that driving licence was granted the right to drive vehicles in category D after that withdrawal by court order and after the expiry of the ban on the issue of a new driving licence.

Failure to observe the normal residence condition laid down in Article 7(1)(b) of Directive 91/439 is liable in itself to justify the refusal by a Member State to recognise a driving licence issued by another Member State. In addition, since that licence was obtained during a period in which a licence issued in the first Member State was suspended and both the suspension and the later withdrawal by court order are based on grounds existing when the second driving licence was issued, Articles 1(2) and 8(2) and (4) of that directive do not preclude that first Member State from refusing to recognise, in its territory, a right to drive under that driving licence.

Moreover, it follows from both the wording and the structure of Directive 91/439 that the driving licence for vehicles in category B is an indispensable prior basis for obtaining a driving licence for vehicles in category D. It would therefore be contrary to the objective of road safety mentioned in the first and fourth recitals in the preamble to that directive not to allow a host Member State to refuse to recognise a driving licence for vehicles in category D issued on the basis of a driving licence for vehicles in category B which is vitiated by a defect justifying the non-recognition of that latter licence.

(see paras 31, 34, 46-47, 50, operative part)
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International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Workers – Access of Turkish nationals duly registered as belonging to the labour market of a Member State to employment in that Member State and the corresponding right of residence

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 6(1))

Summary

The first indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council must be interpreted as precluding the competent national authorities from withdrawing the residence permit of a Turkish worker with retroactive effect from the date when that ground ceased to exist, on satisfaction of which national law had made the grant of his residence permit conditional, if there is no question of fraudulent conduct on the part of that worker and that withdrawal occurs after the expiry of the one-year period of legal employment provided for in the first indent of Article 6(1) of Decision No 1/80.

First, that provision cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host Member State’s labour force. Secondly, not to accept that such a worker has been legally employed in the host Member State for more than one year would be contrary to the general principle of respect for acquired rights, according to which, in the case where a Turkish national may legitimately rely on rights pursuant to a provision of Decision No 1/80, those rights are no longer dependent on the continuing existence of the circumstances which gave rise to them, as no condition of that nature is laid down by that decision.

(see paras 42, 50, 53, operative part)
A contract by which a contracting party, pursuant to the rules of public law and the terms of the contract which govern the provision of the services in question, does not bear a significant share of the risk run by the contracting authority is to be regarded as a ‘service contract’ within the meaning of Article 1(2)(d) of Directive 2004/17 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. It is for the national court to assess whether the transaction at issue in the main proceedings must be regarded as a service concession or a public service contract, taking account of all the characteristics of that transaction.

In that regard, it is clear from the comparison of the definitions of service contract and service concession, in Article 1(2)(a) and (d) and Article 1(3) of Directive 2004/17 respectively, that the difference between a service contract and a service concession lies in the consideration for the provision of services. A service contract involves consideration that is paid directly by the contracting authority to the service provider while, for a service concession, the consideration for the provision of services consists in the right to exploit the service, either alone, or together with payment. In the case of a contract for the supply of services, the fact that the supplier is not remunerated directly by the contracting authority, but is entitled to collect payment from third parties, meets the requirement of consideration laid down in Article 1(3)(b) of Directive 2004/17.

Furthermore, the service concession implies that the service supplier takes the risk of operating the services in question. The absence of a transfer to the service provider of the risk connected with operating the service shows that the transaction concerned is a public service contract and not a service concession. While it is true that that risk may, at the outset, be very limited, for classification as a service concession it is necessary for the contracting authority to transfer to the concession holder all or, at least, a significant share of the risk which it faces.

The risk linked to such an operation must be understood as the risk of exposure to the vagaries of the market, which may, in particular, consist in the risk of competition from other operators, the risk that supply of the services will not match demand, the risk that those liable will be unable to pay for the services provided, the risk that the costs of operating the services will not be met by revenue or yet the risk of liability for harm or damage resulting from an inadequacy of the service. By contrast, risks such as those linked to bad management or errors of judgment by the economic operator are not decisive for the purposes of classification as a public service contract or a service concession, those risks being inherent in every contract, whether it be a public service contract or a service concession.

(see paras 41-42, 44-45, 48-49, 59, operative part 1)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services effected for consideration – Meaning

(Council Directive 77/388, Arts 2(1) and 4)

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Articles 2(1) and 4 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that an operator who, at his own risk, purchases defaulted debts at a price below their face value does not effect a supply of services for consideration within the meaning of Article 2(1) and does not carry out an economic activity falling within the field of application of that directive when the difference between the face value of those debts and their purchase price reflects the actual economic value of the debts at the time of their assignment.

In such circumstances, the assignee of the debts receives no consideration from the assignor, the difference between the face value of the assigned debts and the purchase price of those debts constituting a reflection of the actual economic value of the debts at the time of their assignment, which results from the fact that they are doubtful and from the increased risk of default of the debtors.

(see paras 22, 25-26, operative part)
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Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Communication to the public – Meaning

(European Parliament and Council Directive 2001/29, Art. 3(1))

Summary

Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society and, more specifically, Article 3(1) thereof, must be interpreted as referring only to communication to a public which is not present at the place where the communication originates, to the exclusion of any communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work.

(see para. 41, operative part)
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1. Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000 – International jurisdiction to open insolvency proceedings – Opening of territorial proceedings before the opening of the main proceedings – Conditions

(Council Regulation No 1346/2000, Art. 3(4)(a))

Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000 – International jurisdiction to open insolvency proceedings – Opening of territorial proceedings before the opening of the main proceedings – Conditions (Council Regulation No 1346/2000, Art. 3(4)(b))

Summary

1. The impossibility of opening main insolvency proceedings under Article 3(4)(a) of Regulation No 1346/2000 on insolvency proceedings must be objective and cannot vary according to the specific circumstances in which the opening of such proceedings is requested. Although that impossibility may arise from characteristics relating to the capacity of the debtor, it cannot however be the result purely of the fact that a given person, such as the representative of the public prosecution service of a Member State within the territory in which the debtor has an establishment, does not, in accordance with the law of the Member State in which the debtor has the centre of its main interests, have capacity to request the opening of main proceedings in that Member State.

(see paras 21, 23-24, 26, operative part 1)

2. Consequently, the expression ‘conditions laid down’ in Article 3(4)(a), which refers to conditions which, under the law of the Member State in which the debtor has the centre of its main interests, prevent the opening of main insolvency proceedings in that State, must be interpreted as not referring to conditions excluding particular persons from the category of persons empowered to request the opening of such proceedings.

3. The objective pursued by Regulation No 1346/2000 on insolvency proceedings is, as is apparent from recital 17 thereto, that cases in which the opening of secondary proceedings may be requested before that of the main insolvency proceedings are limited to what is absolutely necessary. Therefore, the conditions for opening territorial insolvency proceedings under Article 3(4)(b) of the regulation must be interpreted strictly.

Thus the term ‘creditor’ in that provision, which is used to designate the persons empowered to request the opening of territorial insolvency proceedings, must be interpreted as not including an authority of a Member State whose task under the national law of that State is to act in the public interest, but which does not intervene as a creditor, or in the name or on behalf of those creditors.

(see paras 22, 29, 34, operative part 2)
It follows from the wording of Article 6(2) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations that it was the legislator’s intention to establish a hierarchy of the criteria to be taken into account for the determination of the law applicable to the contract of employment. It follows that, on a proper construction of Article 6(2) of that convention, the national court seised of the case must first establish whether the employee, in the performance of his contract, habitually carries out his work in any one country, which is that in which or from which, in the light of all the aspects characterising that activity, the employee performs the main part of his duties to his employer.

For that purpose, the aspects characterising the employment relationship, namely, the place of actual employment, the place where the employee receives instructions or where he must report before discharging his tasks, are relevant for the determination of the law applicable to that employment relationship in that, when those places are situated in the same country, the court seised may take the view that the situation falls within the case provided for by Article 6(2)(a) of the Rome Convention.

Thus, the factor of the country in which the employee ‘habitually carries out his work’, in Article 6(2)(a) of that convention, must be given a broad interpretation, while the factor of ‘the place of business through which [the employee] was engaged’, set out in Article 6(2)(b) thereof, can apply only if the court seised is not in a position to determine the country in which the work is habitually carried out.

(see paras 34-35, 40-41, operative part 1)
In anti-dumping investigations concerning imports from, inter alia, China, normal value is to be determined in accordance with Article 2(1) to (6) of the basic anti-dumping Regulation No 384/96, if it is shown that market economy conditions prevail for the producer or producers subject to an investigation, in respect of the manufacture and sale of the like product concerned. In that connection, the burden of proof lies with the producer wishing to claim market economy treatment (‘MET’). Consequently, there is no obligation on the EU institutions to prove that the producer does not satisfy the conditions laid down for the recognition of such status. On the contrary, it is for the EU institutions to assess whether the evidence supplied by the producer concerned is sufficient to show that the criteria laid down in the first subparagraph of Article 2(7)(c) of the basic regulation are satisfied in order to grant it MET and it is for the EU judicature to examine whether that assessment is vitiated by a manifest error.

In anti-dumping investigations concerning imports from, inter alia, China, the Commission is required to examine, in the course of a sampling exercise under Article 17 of the basic anti-dumping Regulation No 384/96, individual MET claims from traders who are not included in the sample.

First, that obligation is apparent from Article 17 of that regulation — on sampling — which is one of the provisions relating to, inter alia, the methods available for determining the dumping margin. That provision has a content and purpose different from those of Article 2(7) of that regulation, which is one of the provisions concerned solely with the determination of normal value.

Second, the obligation [to adjudicate upon a claim from a trader wishing to claim MET] is clear from the very wording of Article 2(7)(b) of the basic regulation. The obligation, which concerns the recognition of the economic conditions under which each producer operates, in respect of the manufacture and sale of the like product concerned, is not affected by the manner in which the dumping margin is to be calculated and must be fulfilled within three months of the initiation of the investigation.

Consequently, Regulation No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam must be annulled, since it is not inconceivable that, had the applications of the traders concerned been examined individually, a lower definitive anti-dumping duty might have been imposed on those traders than that applicable to them pursuant to Regulation No 1472/2006.

(see paras 36-39, 42)
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1. Agriculture – Approximation of laws – Protection of animals during transport – General conditions applicable – Internal height of compartments

(Council Regulation No 1/2005)

2. Agriculture – Approximation of laws – Protection of animals during transport – General conditions applicable – Regular checks on the welfare conditions of animals during transport

(Council Regulation No 1/2005)

3. Agriculture – Approximation of laws – Protection of animals during transport – General conditions applicable – Floor area available per animal

(Council Regulation No 1/2005)

Summary

1. Regulation No 1/2005 on the protection of animals during transport and related operations does not preclude the adoption, by a Member State, of standards applicable to the transport by road of pigs which, in order to strengthen legal certainty, define, in accordance with the objective of protecting the welfare of animals and without laying down any excessive criteria in that regard, the requirements provided for by that regulation as regards the minimum internal height of compartments intended for animals, provided that those standards do not result in additional costs or technical difficulties which disadvantage either producers in the Member State which has adopted those standards or producers from other Member States who wish to export their goods to or via that first Member State, that being a matter for the national court to determine taking into account the criteria generally accepted, in accordance with Regulation No 1/2005, by Member States other than that which laid down the standards in question. More stringent transitional standards relating to the minimum internal height of compartments for journeys of more than eight hours of pigs weighing over 40 kg cannot, however, be regarded as proportionate since the same Member State has adopted less restrictive standards under the system of general law.

(see paras 59-60, 68, operative part)

2. Regulation No 1/2005 on the protection of animals during transport and related operations precludes the adoption, by a Member State, of standards applicable to the transport by road of pigs defining in greater detail the requirements provided for by that regulation in respect of access to animals in order to check regularly their welfare conditions, which relate only to journeys of more than eight hours’ duration.

Unlike the position under the system established by Directive 91/628 and Regulation No 411/98, the provisions of Regulation No 1/2005 relating to the inspection of animals during a journey are applicable to all means of transport, irrespective of the journey time.

(see paras 62, 68, operative part)

3. Regulation No 1/2005 on the protection of animals during transport and related operations does not preclude the adoption, by a Member State, of standards according to which, when pigs are transported by road, the animals must have a minimum surface area which varies according to their weight, that surface area being, for a 100 kg animal, 0.42 m 2 where the journey time is less than eight hours and 0.50 m 2 for journeys of more than eight hours.

(see para. 68, operative part)