ddrg/super_eurlex huggingface dataset:
Keywords

Summary



Keywords

1. Agriculture – Common organisation of the markets – Export refunds – Advance payment – Goods placed under the customs warehousing procedure – Obligation to keep stock records

(Council Regulations No 565/80 and No 2913/92; Commission Regulation No 3665/87, as amended by Commission Regulations No 1708/93 and No 2454/93)

2. Agriculture – Common organisation of the markets – Export refunds – Advance payment – Goods placed under the customs warehousing procedure – Failure to fulfil the obligation to keep stock records

(Council Regulations No 565/80 and No 2913/92; Commission Regulation No 3665/87, as amended by Commission Regulations No 1708/93 and No 2454/93)

Summary

1. The provisions of European Union law on the advance financing of export refunds and, in particular, those of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended in particular by Regulation No 1708/93, read in conjunction with those of Regulation No 565/80 on the advance payment of export refunds in respect of agricultural products, must be interpreted as meaning that the maintenance, in accordance with the European Union customs legislation, of stock records in respect of products placed under the customs warehousing procedure constitutes a condition of advance payment of an export refund with regard to those products. However, any remaining doubts as to the accuracy of certain entries or as to discrepancies in those stock records may be resolved by reference to other additional documents, on condition that those documents are deemed satisfactory by the competent national authorities.

(see para. 39, operative part 1)

2. The provisions of Union law on the advance financing of export refunds and, in particular, those of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended in particular by Regulation No 1708/93, read in conjunction with those of Regulation No 565/80 on the advance payment of export refunds in respect of agricultural products, must be interpreted to the effect that:

– to the extent to which, and on condition that, there has been a failure to comply with the obligation to maintain, in accordance with the Union customs legislation, stock records in respect of products placed under the customs warehousing procedure, proof that products similar in quantity and type to those referred to in the advance payment declaration have been exported is not sufficient for the exporter to be regarded as having properly obtained the amount of the export refund relating to those products;

– in the case in which, by reason of a failure to comply with the obligation to maintain stock records in respect of products placed in a customs warehouse, the exporter must repay all or part of the sums received as advance payment of an export refund, the surcharge of 20% provided for in the second subparagraph of Article 33(1) of Regulation No 3665/87 is to be applied to the amount unduly received.

(see paras 47, 55, operative part 2)
Keywords

Subject of the case

Operative part



Keywords

Union law

–

Rights conferred on individuals

–

Infringement by a Member State

–

Obligation to make good damage caused to individuals

–

Conditions in the case of infringement ascribable to a supreme court

–

Whether the infringement is obvious

–

National legislation under which liability is incurred only in cases of intentional fault or serious misconduct

–

Unlawful (see paras 40-42, 46, 48 and operative part

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Infringement of the general principle that Member States are liable for the infringement of European Union law by one of their courts adjudicating at last instance – Liability limited to cases of intentional fault or serious misconduct.

Operative part

Operative part

The Court:

1. Declares that,

– by excluding all liability of the Italian State for damage caused to individuals through an infringement of European Union law on the part of a court adjudicating at last instance when that infringement results from an interpretation of the rules of law or an assessment of the facts and evidence carried out by that court and

– by limiting that liability to cases of intentional fault or serious misconduct,

pursuant to Article 2(1) and (2) of Law No 117 on the reparation of damage caused in the exercise of judicial functions and the civil liability of judges [legge n. 117 (sul) risarcimento dei danni cagionati nell’ esercizio delle funzioni giudiziarie e responsabilità civile dei magistrati], of 13 April 1988 the Italian Republic has failed to fulfil its obligations under the general principle that Member States are liable for the infringement of European Union law by one of their courts adjudicating at last instance;

2. Orders the Italian Republic to pay the costs.
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Summary



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Customs union – Customs debt incurred through unlawful introduction of goods – Meaning of ‘debtor’

(Council regulation No 2913/92, Art. 202(3))

Summary

The second indent of Article 202(3) of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that a person who, without being directly involved in the introduction of goods, participated in that introduction as intermediary in the conclusion of contracts of sale relating to those goods must be considered to be a debtor of a customs debt incurred through the unlawful introduction of goods into the customs territory of the European Union where that person was aware, or should reasonably have been aware, that that introduction was unlawful, which it is a matter for the national court to determine.

In that regard, it should be noted that the phrase ‘should reasonably have been aware’ in the second indent of Article 202(3) of the Customs Code relates to the conduct of a reasonably circumspect and diligent trader. Moreover, it is important to know whether the intermediary undertook all the steps that could reasonably be expected of him to ensure that the goods concerned would not be unlawfully introduced, in particular, whether he informed the supplier of its obligation to declare the goods to customs. The information available to the intermediary or of which he should reasonably have been aware, particularly because of his contractual obligations, must also be taken into account. In that respect, it is also important to know whether the import duties to be paid were indicated on the contracts of sale or on other documentation available to the intermediary, which would suggest that the introduction of the goods into the territory of the European Union would be carried out in a lawful manner. Finally, the period during which the intermediary provided his services to the seller of the goods concerned may be taken into account.

(see paras 22, 24-27, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Recovery of VAT paid but not due

(Council Directive 77/388)

Summary

The principle of effectiveness does not preclude national rules governing the recovery of sums paid but not due, under which the time-limits for a civil law action for recovery of sums paid but not due, brought by the recipient of services against the supplier, a taxable person for the purposes of VAT, are more generous than the specific time-limits for a fiscal law action for a tax refund, brought by the supplier against the tax authority, provided that it is possible for that taxable person effectively to claim reimbursement of the VAT from the tax authority. That condition is not satisfied where the application of such rules has the effect of totally depriving the taxable person of the right to obtain from the tax authority a refund of the VAT paid but not due, which the taxable person has himself had to pay back to the recipient of his services.

(see para. 42, operative part)
Case C-218/10

ADV Allround Vermittlungs AG, in liquidation

v

Finanzamt Hamburg-Bergedorf

(Reference for a preliminary ruling from the Finanzgericht Hamburg)

‛VAT — Sixth Directive — Articles 9, 17 and 18 — Determination of the place where services are supplied — Concept of ‘supply of staff’ — Self-employed persons — Need to ensure that a provision of services is assessed identically in relation to the provider and in relation to the recipient’

Summary of the Judgment

On a proper construction of the sixth indent of Article 9(2)(e) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, the ‘supply of staff’ referred to in that provision also includes the supply of self-employed persons not employed by the trader providing the service. In so far as that interpretation confines the place where the services concerned are deemed to have been supplied to a single place, it makes it possible precisely to prevent double taxation of the supply of services or the latter’s escaping all charging of value added tax. Likewise, this interpretation is of such a kind as to make it easier to give effect to that conflict-of-laws rule, by making it possible simply to operate, at the place where the services are supplied, the rules governing the collection of taxes and the prevention of tax avoidance, since the recipient of the services has no need to enquire as to the legal nature of the relations between the supplier and the ‘staff’ being supplied. Furthermore, that interpretation is consistent with the principle of legal certainty for, by making more predictable the determination of the place where the service is deemed to be supplied, it simplifies the application of the provisions of the Sixth Directive and contributes to ensuring accurate and reliable collection of value added tax. (see paras 29-32, operative part 1)

For want of any Union legislation, it is for the domestic legal system of every Member State, in particular, to designate the competent authorities and to lay down detailed procedural rules for safeguarding the rights that individuals derive from Union law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Union legal order (principle of effectiveness). As regards the principle of effectiveness, there being no specific rules in national procedural law, the right of the service provider and that of the recipient of the service, consisting in being treated identically with regard to taxability and liability to value added tax in respect of one and the same service, would in practice be rendered totally ineffective. (see paras 35, 37)
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Approximation of laws – Directives concerning approximation of laws – Common rules for the internal market in electricity – Directive 2003/54

(European Parliament and Council Directive 2003/54, Art. 3(2) and 11(2) and (6))

Summary

Directive 2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92 and, in particular, Article 3(2) and Article 11(2) and (6) of that directive must be interpreted as not precluding national legislation which, for the purposes of reducing the price of electricity in the interests of the end consumer and of ensuring the security of the electricity system, imposes on operators which own installations or groups of installations which are considered, on the basis of the criteria laid down by the national regulatory authority, to be essential in order to meet the requirements of the demand for electricity of dispatching services, the obligation to submit bids on the national electricity markets in accordance with conditions pre-determined by that authority, provided that that legislation does not go beyond what is necessary in order to attain the objective which it pursues. It is for the referring court to ascertain whether that condition is met.

(see para. 89, operative part)
The term ‘date of filing of a Community trade mark application’ used in Article 27 of Regulation No 40/94 on the Community trade mark, as amended by Regulation No 1992/2003, implies taking account of the calendar day of filing of an application for a Community trade mark, but not of the hour and minute of filing.

The obligation to state the date or the day, depending on the language version, does not imply, according to the ordinary meaning, that it is necessary to state the hour or, a fortiori, the minute. Therefore, there being no express reference in Article 27 of Regulation No 40/94 to the hour and minute of filing of a Community trade mark application, it is apparent that that information was not considered by the Community legislature to be necessary in order to determine the time of filing of a Community trade mark application and hence its priority over another trade mark application.

That interpretation also follows from the context of Article 27 of Regulation No 40/94. In particular, Rule 5 of Regulation No 2868/95 implementing Regulation No 40/94, which details the formalities to be completed by the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM), by the central industrial property office of a Member State or by the Benelux Trade Mark Office upon the filing of an application for a Community trade mark, establishes only the obligation to indicate in the application the date of receipt of that application and not the hour and minute.

If the Community legislature had considered that the hour and minute of filing of a Community trade mark application had to be taken into account as constituent elements of the ‘date of filing’ of that application within the meaning of Article 27 of Regulation No 40/94, that information would have had to be included in Regulation No 2868/95.

(see paras 47-49, 54)
Article 1(2) of Directive 91/250 on the legal protection of computer programs must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.

To accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

With respect to the programming language and the format of data files used in a computer program to interpret and execute application programs written by users and to read and write data in a specific format of data files, these are elements of that program by means of which users exploit certain functions of that program.

However, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction within the meaning of Article 4(a) of Directive 91/250.

Lastly, the programming language and the format of data files may be protected, as works, by copyright under Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society if they are their author’s own intellectual creation.

(see paras 40, 42, 43, 45, 46, operative part 1)
By virtue of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 38(1)(c) of its Rules of Procedure, the Commission must, in any application made under Article 258 TFEU, indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based. However, if the Commission claims that national legislation is contrary to the system, scheme or spirit of a directive, without relating the resultant breach of EU law to any specific provisions of that directive, its application cannot, on that ground alone, be held to be inadmissible.

In the context of an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, of fulfilling its obligations under EU law and, on the other, of availing itself of its right to defend itself properly against the objections formulated by the Commission. The subject-matter of proceedings under Article 258 TFEU is therefore delimited by the pre-litigation procedure prescribed by that provision.

A Member State which applies (i) to third-country nationals seeking long-term resident status in that Member State, (ii) to those who, having acquired that status in another Member State, are seeking to exercise the right to reside in that Member State, and (iii) to members of their families seeking authorisation to accompany or join them, excessive and disproportionate charges liable to create an obstacle to the exercise of the rights conferred by Directive 2003/109 concerning the status of third-country nationals who are long-term residents, fails to fulfil its obligations under that directive.

While it is open to that Member State to make the issue of residence permits under Directive 2003/109 subject to the levying of charges, the level at which those charges are set must not have either the object or the effect of creating an obstacle to the obtaining of the long-term resident status conferred by that directive, lest both the objective and the spirit of that directive be compromised and the directive itself rendered redundant.

Furthermore, the discretion enjoyed by that Member State in setting the amount of the charges that may be levied on third-country nationals for the issue of residence permits under Chapters II and III of Directive 2003/109 is not unlimited and does not therefore permit the levying of charges that would be excessive in the light of their significant financial impact on those nationals.

(see paras 69, 70, 73, 74, 79, operative part)
Legislation of a Member State under which payments made by a resident taxpayer to a non-resident company for supplies or services are not to be regarded as deductible business expenses where the non-resident company is not subject, in the Member State of establishment, to tax on income or is subject, as regards the relevant income, to a tax regime which is appreciably more advantageous than the applicable regime in the former Member State, unless the taxpayer proves that such payments relate to genuine and proper transactions and do not exceed the normal limits, whereas, under the general rule, such payments are to be regarded as deductible business expenses if they are necessary for acquiring or retaining taxable income and if the taxpayer demonstrates the authenticity and amount of those expenses constitutes a restriction on the freedom to provide services within the meaning of Article 49 EC.

A special rule which lays down stricter conditions for being allowed to deduct business expenses paid to a non-resident company than those laid down in the general rule and the scope of which has not been delimited with precision beforehand because the assessment concerning the applicability of the special rule is carried out on a case-by-case basis by the tax authority is liable both to dissuade resident taxpayers in that Member State from exercising their right to the freedom to provide services and from making use of the services of providers established in another Member State and to dissuade those providers from offering their services to recipients established in the former State.

Moreover, although such a rule is suitable for attaining the objectives of preventing tax evasion and avoidance and of preserving both the effectiveness of fiscal supervision and the balanced allocation between Member States of the power to impose taxes, it cannot be regarded as justified, as it is not proportionate to those objectives. Since it is not possible, at the outset, to determine its scope with sufficient precision and its applicability remains a matter of uncertainty, such a rule does not meet the requirements of the principle of legal certainty, in accordance with which rules of law must be clear, precise and predictable as regards their effects, in particular where they may have unfavourable consequences for individuals and undertakings.

(see paras 26-29, 48, 57-60, operative part)
The first subparagraph of Article 28c(A)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 98/80, must be interpreted as not precluding the tax authority of a Member State from making the exemption from VAT of an intra-Community supply subject to the provision by the supplier of the VAT identification number of the person acquiring the goods, with the proviso that the grant of that exemption should not be refused on the sole ground that that requirement was not fulfilled where the supplier, acting in good faith and having taken all the measures which can reasonably be required of him, is unable to provide that identification number but provides other information which is such as to demonstrate sufficiently that the person acquiring the goods is a taxable person acting as such in the transaction at issue.

Apart from the requirements relating to the capacity of the taxable person, to the transfer of the right to dispose of goods as owner and to the physical movement of the goods from one Member State to another, no other conditions can be placed on the classification of a transaction as an intra-Community supply or acquisition of goods. Thus, in order to be exempt under the first subparagraph of Article 28c(A)(a) of the Sixth Directive, a supplier cannot be required to provide evidence of the taxation of the intra-Community acquisition of the goods in question.

(see paras 55, 58, operative part)
Where an undertaking has been given by an exporter to the Commission following a determination of dumping and injury in accordance with Article 8 of basic anti-dumping Regulation No 384/96, the accomplishment of the Commission’s task of monitoring such undertakings is dependent on the accuracy of the documents provided in the performance of the undertaking entered into by the exporter concerned. By failing to comply with the reporting obligation attaching to undertakings, the exporter breaches the trust that is necessary to the relationship based on cooperation established by such an undertaking. Accordingly, such a breach may render the undertaking ineffective. In those circumstances, the reporting obligations must be regarded as primary obligations for the purpose of the proper functioning of the system of undertakings by which it is possible to avoid the imposition of anti-dumping duties.

Consequently, where an exporter has failed to comply with its undertaking as regards both its obligation to submit quarterly reports on sales of the product concerned not covered by the undertaking and its obligation not to issue Undertaking Invoices for products not covered by the undertaking, the Commission is entitled to withdraw acceptance of the undertaking given by the exporter, without infringing the principle of proportionality. In such a case, the Commission is also required, under Article 8(9) of the basic regulation, to impose a definitive anti‑dumping duty on the exporter.

(see paras 35, 39)