ddrg/super_eurlex huggingface dataset:
24

In those circumstances, the Rechtbank van eerste aanleg te Brugge decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Was Belgium entitled to amend its legislation by taxing an exempt service – in this case, journeys outside the European Union – at a point in time (1 December 1977) just before the introduction of the Sixth VAT Directive (1 January 1978) and thus circumvent the standstill provision in Article 28(3) of the Sixth Directive (now Article 370 of the [VAT] Directive), which provides that the journeys referred to may continue to be taxed only if they were already taxed prior to the adoption of the Sixth Directive? (2) Should Belgium have refrained from taxing journeys outside the European Union as of 13 June 1977 (date of publication of the Sixth Directive)? (3) Is Belgium in breach of Article 309 of the [VAT] Directive by not treating travel agents, as regards their services outside the [European Union], as intermediaries and continuing nevertheless to tax those services? (4) Do Articles 309, 153 and 370 of, and Annex X to, the [VAT] Directive infringe the general principles of Community law, the principles of equality and proportionality and the provisions concerning the free movement of persons, goods and services, inter alia, Articles 43 and 56 of the EC Treaty, by giving Member States the right to choose whether or not to tax services relating to journeys outside [the European Union]? (5) Is it contrary to the principles of Community law, in particular the principles of equality and proportionality and the principle of fiscal neutrality with regard to VAT, for the Belgian State, by Royal Decree of 28 November 1999, to have made only travel agents, but not intermediaries, taxable with regard to journeys outside the European Union?’
18

In those circumstances, the Augstākās tiesas Senāts decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. May the first subparagraph of Article 70(1) of [the Customs Code] be interpreted as meaning that it is possible to apply the results of the examination of part of the goods in a customs declaration also to goods included in earlier declarations which were not the subject of the partial examination, but which had been declared with the same Combined Nomenclature code, came from the same manufacturer and which, according to information concerning the name and composition of the goods on that manufacturer’s certificates, were identical to the goods in the declaration in respect of which samples had been taken for partial examination? In other words: Does the concept of “declaration” within the meaning of the first subparagraph of Article 70(1) of [the Customs Code] also include declarations [relating to goods] in respect of which samples have not been taken for examination, but in which identical goods have been declared (that is, the goods are declared under the same Combined Nomenclature code, come from the same manufacturer and on the manufacturer’s certificates the same name and composition of goods are given)? 2. If the first question is answered in the affirmative, may the results of the partial examination of the goods under the first subparagraph of Article 70(1) of [the Customs Code] be applied also to declarations in respect of which, for objective reasons, the declarant is unable to request a further examination under the second subparagraph of Article 70(1) of Regulation No 2913/92 since it is not possible to produce the goods for examination pursuant to Article 78(2) of [that code]?’
16

Article 22(1), (2), (4), (5) and (7) of the Prospectus Regulation state: 1. A base prospectus shall be drawn up by using one or a combination of schedules and building blocks provided for in Articles 4 to 20 according to the combinations for various types of securities set out in Annex XVIII. A base prospectus shall contain the information items required in Annexes I to XVII depending on the type of issuer and securities involved, provided for in the schedules and building blocks set out in Articles 4 to 20. A competent authority shall not request that a base prospectus contains information items which are not included in Annexes I to XVII. In order to ensure conformity with the obligation referred to in Article 5(1) of [the Prospectus Directive], the competent authority of the home Member State, when approving a base prospectus in accordance with Article 13 of that Directive, may require that the information provided by the issuer, the offeror or the person asking for admission to trading on a regulated market be completed, for each of the information items, on a case by case basis. 2. The issuer, the offeror or the person asking for admission to trading on a regulated market may omit information items which are not known when the base prospectus is approved and which can only be determined at the time of the individual issue. ... 4. The final terms attached to a base prospectus shall only contain the information items from the various securities note schedules according to which the base prospectus is drawn up. 5. In addition to the information items set out in the schedules and building blocks referred to in Articles 4 to 20 the following information shall be included in a base prospectus: (1) indication on the information that will be included in the final terms; (2) the method of publication of the final terms; if the issuer is not in a position to determine, at the time of the approval of the prospectus, the method of publication of the final terms, an indication of how the public will be informed about which method will be used for the publication of the final terms; ... 7. Where an event envisaged under Article 16(1) of [the Prospectus Directive] occurs between the time that the base prospectus has been approved and the final closing of the offer of each issue of securities under the base prospectus or, as the case may be, the time that trading on a regulated market of those securities begins, the issuer, the offeror or the person asking for admission to trading on a regulated market shall publish a supplement prior to the final closing of the offer or the admission of those securities to trading.’
30

In those circumstances the Fővárosi Törvényszék decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. May Article 2(c) of the Framework Directive … be interpreted as meaning that a service by which a service provider supplies, for consideration, conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite is to be classified as an electronic communications service? 2. May the [FEU Treaty] be interpreted as meaning that the principle of the free movement of services is applicable to the service described in the first question, in the case of a service supplied from Luxembourg to Hungary? 3. May the [FEU Treaty] be interpreted as meaning that, in the case of the service described in the first question, the country of destination, to which the service is sent, is entitled to limit the supply of that type of services by requiring that the [supplier of the] service has to be registered in that Member State and has to be established as a branch or separate legal entity, and allowing this type of services to be supplied only through the establishment of a branch or separate legal entity? 4. May the [FEU Treaty] be interpreted as meaning that administrative proceedings relating to the services described in the first question, regardless of the Member State in which the undertaking supplying that service operates or is registered, will be subject to the administrative authority of the Member State which has jurisdiction on the basis of the place in which the service is supplied? 5. May Article 2(c) of the [Framework Directive] be interpreted as meaning that the service described in the first question must be classified as an electronic communications service, or must such a service be classified as a conditional access service supplied using the conditional access system defined in Article 2(f) of the Framework Directive? 6. On the basis of all the foregoing, may the relevant provisions be interpreted as meaning that the service provider described in the first question must be classified as a provider of electronic communications services pursuant to [EU] law?’
2

Recitals 6 to 15 and 17 in the preamble to Directive 2005/29 are worded as follows: ‘(6) This Directive … approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers’ economic interests and thereby indirectly harm the economic interests of legitimate competitors. ... It neither covers nor affects the national laws on unfair commercial practices which harm only competitors’ economic interests or which relate to a transaction between traders; taking full account of the principle of subsidiarity, Member States will continue to be able to regulate such practices, in conformity with Community law, if they choose to do so. ... ... (15) Where Community law sets out information requirements in relation to commercial communication, advertising and marketing that information is considered as material under this Directive. Member States will be able to retain or add information requirements relating to contract law and having contract law consequences where this is allowed by the minimum clauses in the existing Community law instruments. A non-exhaustive list of such information requirements in [the Community acquis, which is applicable to commercial practices harming consumers’ economic interests] is contained in Annex II. Given the full harmonisation introduced by this Directive only the information required in Community law is considered as material for the purpose of Article 7(5) thereof. Where Member States have introduced information requirements over and above what is specified in Community law, on the basis of minimum clauses, the omission of that extra information will not constitute a misleading omission under this Directive. By contrast Member States will be able, when allowed by the minimum clauses in Community law, to maintain or introduce more stringent provisions in conformity with Community law so as to ensure a higher level of protection of consumers’ individual contractual rights. ... (17) It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9. The list may only be modified by revision of the Directive.’
3

Article 14 of Regulation No 659/1999, entitled ‘Recovery of aid’, provides: ‘1. Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary (hereinafter referred to as a “recovery decision”). The Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law. 2. The aid to be recovered pursuant to a recovery decision shall include interest at an appropriate rate fixed by the Commission. Interest shall be payable from the date on which the unlawful aid was at the disposal of the beneficiary until the date of its recovery. 3. Without prejudice to any order of the Court of Justice of the [European Union] pursuant to Article [278 TFEU], recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to Community law.’
Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State under which a resident parent company can form a single tax entity with a resident sub-subsidiary where it holds that sub-subsidiary through one or more resident companies, but cannot where it holds that sub-subsidiary through non-resident companies which do not have a permanent establishment in that Member State.

The possibility granted by that law to resident companies constitutes a cash-flow advantage for the companies concerned. That scheme allows, in particular, the profits and losses of the companies constituting the tax entity to be consolidated at the level of the parent company and the transactions carried out within the group to remain neutral for tax purposes.

The legislation accordingly creates a difference in treatment since the ability to elect for the tax entity regime is dependent on whether the parent company holds its indirect stakes through a subsidiary established in that State or in another Member State.

Accordingly, inasmuch as, from a taxation perspective, they put cross-border situations at a disadvantage compared with domestic situations, the provisions of that legislation thus constitute a restriction which is, in principle, prohibited by the provisions of the TFEU relating to freedom of establishment.

In that regard, in order for such a difference in treatment to be compatible with those provisions, it must either relate to situations which are not objectively comparable — in which case the comparability of a cross-border situation with an internal situation must be examined having regard to the aim pursued by the national provisions at issue — or be justified by an overriding reason in the public interest.

As regards comparability, the national legislation aims to treat, as far as possible, a group constituted by a parent company with its subsidiaries and its sub-subsidiaries in the same way as an undertaking with a number of establishments, by enabling the results of all those companies to be consolidated for tax purposes. Holding resident sub-subsidiaries either through a resident subsidiary or a non-resident subsidiary are therefore objectively comparable to the extent that the benefit of the advantages of the tax entity regime is sought in both situations for the group formed by the parent company and the sub-subsidiaries.

Furthermore, that restriction cannot be regarded as justified by an overriding reason in the public interest based on preserving the coherence of the tax system. Although the need to preserve the coherence of a tax system may justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty, no direct link can be established between the granting of the tax advantage linked to the formation of a tax entity and the offsetting of that advantage by a particular tax.

(see paras 21, 24, 27-29, 31, 33, 40, 41, 43, operative part 1)
Judgment of the Court (Seventh Chamber) of 27 March 2014 — Consejería de Infraestructuras y Transporte de la Generalitat Valenciana and Iberdrola Distribución Eléctrica

(Case C‑300/13)

‛Reference for a preliminary ruling — Directive 85/337/EEC — Assessment of the effects of certain projects on the environment — Construction of certain overhead electrical power lines — Extension of an electrical substation — Project not made subject to an environmental assessment’

Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Scope — Extension of an electrical substation — Not included except in the case of an extension forming part of the construction of overhead electrical power lines — Verification by the national court (Council Directive 85/337, as amended by Directive 97/11, Annexes I, point 20, and II, point 3(b)) (see paras 21, 25-30, operative part)

Re:

Request for a preliminary ruling — Tribunal Superior de Justicia de la Comunidad Valenciana — Interpretation of point 20 of Annex I and section 3(b) of Annex II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 97/11/EC (OJ 1997 L 73, p. 5) — Construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km — Concept — Project to extend an electrical substation independently of the existing overhead power line — National legislation which does not provide for the submission of that project to an environmental assessment.

Operative part:

The provisions of point 20 of Annex I and section 3(b) of Annex II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, must be interpreted as meaning that a project such as that at issue in the main proceedings, which relates only to the extension of an electrical voltage transformer substation, is not, as such, among the projects covered by those provisions, unless that extension is part of the construction of overhead electrical power lines, which it is for the national court to ascertain.
Case C‑242/13

Commerz Nederland NV

v

Havenbedrijf Rotterdam NV

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Reference for a preliminary ruling — Competition — State aid — Article 107(1) TFEU — Definition of aid — Guarantees provided by a public undertaking to a bank to facilitate lending to third party creditors — Guarantees deliberately provided by the director of that public undertaking in disregard of that undertaking’s statutes — Presumption of opposition by the public body that owns that undertaking — Whether the guarantees may be imputed to the State’

Summary — Judgment of the Court (Second Chamber), 17 September 2014

Judicial procedure — Request to have the oral procedure reopened — Request to lodge observations on the points of law raised by the Advocate General’s opinion — Conditions for the reopening (Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 83) State aid — Concept — Guarantees provided by a public undertaking — Whether imputable to the public authority controlling that undertaking — Set of indicators to be taken into consideration (Art. 107(1) TFEU)
Keywords

Summary



Keywords

1. Customs union — Common Customs Tariff — Tariff heading — Substance producing, by chemical reaction and exposure to a laser light, a fluorescent effect intended for the analysis of white blood cells — Classification of a product having two possible uses in theory — Classification in headings 3204, 3212 or 3822 of the Combined Nomenclature — Classification according to the only possible use in practice — Classification under heading 3822

(Council Regulation No 2658/87, Annex I; Commission Regulation No 1810/2004)

2. Customs union — Common Customs Tariff — Tariff heading — Substance producing, by chemical reaction and exposure to a laser light, a fluorescent effect intended for the analysis of white blood cells — Classification of a product with two possible uses in theory

(Commission Regulation No 827/2011)

Summary

1. The Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1810/2004, must be interpreted as meaning that a product, composed of solvents and of a polymethine-based substance, which, although it may have a weak and non-permanent dyeing effect on textiles, is not in practice used for its dyeing properties and is intended exclusively for the analysis of white blood cells, by means of the deposition of ions in defined components of those blood cells, which, when exposed to laser light, become fluorescent for a limited period, comes under heading 3822 of the Combined Nomenclature relating to laboratory reagents.

With regard to a product having two possible uses, as one of those uses is no more than a purely theoretical possibility, that product is, on the basis of its objective characteristics and properties, naturally intended for the other use and therefore comes under the tariff heading relating to that use. Likewise, in order to be classified under the tariff heading relating to a use, the product to be classified need not be solely or exclusively intended for that use. It suffices that that use is the main use for which the product is intended.

Indeed, it is apparent from the Harmonised System Explanatory Notes on heading 3822 that the colouring matter referred to in heading 3204 is excluded from heading 3822, even if it is put up in a form allowing its use as diagnostic or laboratory reagents. However, it is also apparent from the HS Explanatory Notes on heading 3204 that the products which are not in practice used for their colouring properties are excluded from that heading. In practice, the product at issue is not likely to be used as colouring matter.

(see paras 32, 41-43, 45, operative part)

2. See the text of the decision.

(see para. 44)
Keywords

Summary



Keywords

Freedom of movement for persons — Freedom of establishment — Tax legislation — Corporation tax — National legislation providing for reincorporation of losses deducted previously in the event that an establishment is transferred to a non-resident company in the same group — Not permissible — Justification — Balanced allocation of the power to impose taxes between Member States — No such justification

(Arts 49 TFEU and 54 TFEU; Agreement on the European Economic Area, Arts 31 and 34)

Summary

Articles 49 TFEU and 54 TFEU and Articles 31 and 34 of the Agreement on the European Economic Area (EEA) preclude legislation of a Member State under which, in the event of transfer by a resident company to a non-resident company in the same group of a permanent establishment situated in another Member State or in another State that is party to the EEA Agreement, the losses previously deducted in respect of the establishment transferred are reincorporated into the transferring company’s taxable profit, in so far as the first Member State taxes both the profits made by that establishment before its transfer and those resulting from the gain made upon the transfer.

Such legislation goes beyond what is necessary to attain the objective relating to the need to safeguard the balanced allocation of the power to impose taxes, which is intended to safeguard the symmetry between the right to tax profits and the right to deduct losses.

This conclusion is not altered by the fact that it may be difficult in the event of an intragroup transfer to verify the market value of the business transferred in another Member State.

Moreover, the national tax authorities in any event always have the power to request from the transferring company the documents that appear to them necessary in order to verify whether the value of the business adopted for the purpose of calculating the gain on transfer of a foreign establishment is the same as the market value.

(see paras 32, 36, 37, 39, 40, operative part)