ddrg/super_eurlex huggingface dataset:
Ascertaining which elements of a matter must be categorised as essential is not for the assessment of the European Union legislature alone, but must be based on objective factors amenable to judicial review. In that connection, it is necessary to take account of the characteristics and particularities of the domain concerned.

Since the adoption of rules essential to a matter of EU law is reserved to the legislature of the European Union, those rules must be laid down in the basic legislation and may not be delegated. Thus, provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature cannot be delegated. It follows from this that implementing measures cannot amend essential elements of basic legislation or supplement it by new essential elements.

Decision 2010/252 — which supplements the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union — must be annulled, given that paragraph 2.4 of Part I to the annex to that decision, which lays down the measures which border guards may take against ships detected and persons on board, allows, inter alia, ships to be stopped, boarded, searched and seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to another Member State, and thus enforcement measures to be taken against persons and ships which could be subject to the sovereignty of the State whose flag they are flying.

Since Decision 2010/252 is an implementing measure adopted on the basis of Article 12(5) of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as amended by Regulation No 296/2008, it cannot contain rules on the conferral of enforcement powers on border guards, as the adoption of such rules entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. In addition, those provisions on conferring powers of public authority on border guards mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.

(see paras 74, 76, 77, operative part 1)
Case C‑511/10

Finanzamt Hildesheim

v

BLC Baumarkt GmbH & Co. KG

(Reference for a preliminary ruling from the Bundesfinanzhof)

‛Sixth VAT Directive — Article 17(5), third subparagraph — Right to deduct input VAT — Goods and services used both for taxable transactions and exempt operations — Rental of a building for commercial and habitation purposes — Criteria for calculation prorata deduction of VAT’

Summary — Judgment of the Court (First Chamber), 8 November 2012

Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Goods and services used both for taxable transactions and exempt operations — Rental of a building for commercial and habitation purposes — Prorata deduction — Calculation — Allocation key other than that based on turnover — Lawfulness — Condition

(Council Directive 77/388, Arts 17(5), third para., and 19(1))

The third subparagraph of Article 17(5) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as allowing Member States, for the purposes of calculating the proportion of input value added tax deductible for a given operation, such as the construction of a mixed-use building, to give precedence, as the key to allocation, to an allocation key other than that based on turnover appearing in Article 19(1) of that directive, on condition that the method used guarantees a more precise determination of the said deductible proportion.

(see para. 26, operative part)

Case C‑511/10

Finanzamt Hildesheim

v

BLC Baumarkt GmbH & Co. KG

(Reference for a preliminary ruling from the Bundesfinanzhof)

‛Sixth VAT Directive — Article 17(5), third subparagraph — Right to deduct input VAT — Goods and services used both for taxable transactions and exempt operations — Rental of a building for commercial and habitation purposes — Criteria for calculation prorata deduction of VAT’

Summary — Judgment of the Court (First Chamber), 8 November 2012

Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Goods and services used both for taxable transactions and exempt operations — Rental of a building for commercial and habitation purposes — Prorata deduction — Calculation — Allocation key other than that based on turnover — Lawfulness — Condition

(Council Directive 77/388, Arts 17(5), third para., and 19(1))

The third subparagraph of Article 17(5) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as allowing Member States, for the purposes of calculating the proportion of input value added tax deductible for a given operation, such as the construction of a mixed-use building, to give precedence, as the key to allocation, to an allocation key other than that based on turnover appearing in Article 19(1) of that directive, on condition that the method used guarantees a more precise determination of the said deductible proportion.

(see para. 26, operative part)
Therefore, if, following a complaint concerning a number of measures taken by the government of a Member State, including public declarations made by that government, the Commission opens a formal investigation procedure only in relation to some of those complaints, the failure to express a view on the characterisation of the declarations not covered by that investigation as State aid cannot be regarded per se as a decision rejecting the claims of the complainant. Thus, in the absence of an additional decision that would have extended the subject matter of the administrative procedure to the issue of whether those declarations constitute, in themselves, State aid, the Commission does not, by its decision to open the formal investigation procedure, address those elements of the complaint.

Under the terms of Articles 4(4), 6(1) and 13(1) of Regulation No 659/1999 laying down detailed rules for the application of Article 88 EC, a decision to initiate the formal procedure to investigate State aid and an invitation to the interested parties to present their observations are necessary in order both to determine the subject matter of the administrative procedure and to ensure that the Commission is as fully informed as possible.

Only advantages granted directly or indirectly through State resources or constituting an additional burden on the State are to be regarded as aid within the meaning of Article 107(1) TFEU. Thus, for the purposes of establishing the existence of State aid within the meaning of that provision, the Commission must establish a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget. However, it is not necessary that such a reduction, or even such a risk, should correspond or be equivalent to that advantage, or that the advantage has as its counterpoint such a reduction or such a risk, or that it is of the same nature as the commitment of State resources from which it derives.

Moreover, in the case of a number of interventions, as State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 107(1), be regarded as a single intervention. That could be the case in particular where consecutive interventions, especially having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely linked to each other that they are inseparable from one another.

(see paras 99, 100, 103, 104, 109, 110)
Judgment of the Court (Seventh Chamber) of 7 October 2010 – Commission v Greece

(Case C‑127/10)

Failure of a Member State to fulfil obligations – Directive 2006/42/EC on machinery – Failure to transpose within the prescribed period

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para. 10)

2. Member States – Obligations – Implementation of directives – Failure to fulfil obligations – Justification – Not permissible (Art. 258 TFEU) (see para. 12)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (recast).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC, the Hellenic Republic has failed to fulfil its obligations under that directive;
Judgment of the Court (Eighth Chamber) of 14 April 2011 – Commission v Spain

(Case C-343/10)

Failure of a Member State to fulfil obligations – Directive 91/271/EEC – Pollution and nuisances – Treatment of urban waste water – Articles 3 and 4

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU; Council Directive 91/271, Arts 3 and 4) (see paras 54, 64)

Re:

Failure of a Member State to fulfil obligations – Infringement of Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ L 135, p. 40).

Operative part

The Court:

1. Declares that, by failing to ensure that:

– urban waste water from the agglomerations with a population equivalent of more than 15 000 of Valle de Güimar, Noreste (Valle Guerra), Valle de la Orotava, Arenys de Mar, Alcossebre and Cariño is collected in accordance with Article 3 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, and

– urban waste water from the agglomerations with a population equivalent of more than 15 000 of Arroyo de la Miel, Arroyo de la Víbora, Estepota (San Pedro de Alcántara), Alhaurín el Grande, Coín, Barbate, Chipiona, Isla Cristina, Matalascañas, Nerja, Tarifa, Torrox Costa, Vejer de la Frontera, Gijón-Este, Llanes, Valles de Güimar, Noreste (Valle Guerra), Los Llanos de Aridane, Arenys de Mar, Pineda de Mar, Ceuta, Alcossebre, Benicarló, Elx (Arenales), Peñíscola, Teulada Moraira (Rada Moraira), Vinaròs, A Coruña, Cariño, Tui, Vigo, Aguiño-Carreira-Ribeira, Baiona, Noia, Santiago, Viveiro and Irán (Hondarribia) is treated in accordance with Article 4(1), (3) and, where applicable (4), of Directive 91/271,

the Kingdom of Spain has failed to fulfil its obligations under those provisions of Directive 91/271/EEC;
Judgment of the Court (Sixth Chamber) of 21 July 2011 – Freistaat Sachsen and Land Sachsen-Anhalt v Commission

(Case C-459/10 P)

Appeal – State aid – Aid for a training project concerning certain jobs in the new DHL centre at Leipzig-Halle airport – Action for annulment against the decision declaring part of the aid incompatible with the common market – Examination of the need for the aid – Failure to take into account the incentive effects of the aid and its positive external effects on the choice of the site

1. State aid – Prohibition – Derogations – Categories of aid, defined by legislation, that may be regarded as compatible with the internal market – Regulation No 68/2001 on training aid – Criteria for assessment – Individual examination of training aid ineligible for the exemption from notification – Taking into account the criterion of the necessity of the aid – Whether permissible (Art. 107(3)(c) TFEU; Commission Regulation No 68/2001, Art. 5) (see paras 30-31, 33)

2. State aid – Prohibition – Derogations – Aid eligible for the derogation laid down in Article 107(3)(c) TFEU – Operating aid – Excluded – Training aides – Criterion of the necessity of the aid – Positive effects for certain economic areas or sectors – Irrelevant (Art. 107(3)(c) TFEU) (see paras 34-36, 61)

3. State aid – Prohibition – Derogations – Aid that may be regarded as compatible with the internal market – Assessment in the light of Article 107(3)(c) TFEU – Taking into account previous practice – Excluded – No breach of the principle of equal treatment (Art. 107(3)(c) TFEU) (see paras 38, 50)

4. State aid – Examination by the Commission – Training aid – Incentive effect of the aid on the choice of the site where an undertaking is to be installed – Irrelevant (Art. 107(3)(c) TFEU) (see para. 42)

5. State aid – Examination by the Commission – Elements to be taken into consideration – Taking account of factors linked to the recipient’s practice or business strategy – Whether permissible (Arts 107(3) TFEU and 108(2) and (3) TFEU) (see paras 48-49)

6. State aid – Prohibition – Derogations – Aid eligible for the derogation laid down in Article 107(3)(c) TFEU – Conditions – Training aid – Criterion of the necessity of the aid – Taking account of the existence of national legislation requiring staff to be trained – Whether permissible (Art. 107(3)(c) TFEU) (see para. 56)

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 8 July 2010 in Case T‑396/08 Freistaat Sachsen and Land Sachsen-Anhalt v Commission , by which that court dismissed the action seeking partial annulment of Decision 2008/878/EC of 2 July 2008 regarding the State aid which Germany intends to grant to DHL (OJ 2008 L 312, p. 31) – Aid for training – Decision declaring part of the aid incompatible with the common market – Incorrect examination of the necessity of the aid – Disregard of the positive external effects of the aid and of its incentive effects on the choice of the site.

Operative part

The Court:

1. Dismisses the appeal;
Judgment of the Court (Eighth Chamber) of 8 September 2011 – Commission v Portugal

(Case C-220/10)

Failure of a Member State to fulfil obligations – Directive 91/271/EEC – Pollution and nuisances – Treatment of urban waste water – Articles 3, 5 and 6 – Failure to identify sensitive areas – Failure to introduce more stringent treatment of discharges in sensitive areas

1. Environment – Urban waste-water treatment – Directive 91/271– Derogations – Less stringent treatment of less sensitive areas – Conditions – Carrying out of studies indicating that there will be no adverse effect on the environment – Communication to the Commission of all relevant information on that subject (Council Directive 91/271, Arts 2 and 6(1) and (2), second indent) (see paras 43-44)

2. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para. 45)

3. Environment – Urban waste-water treatment – Directive 91/271 – More stringent treatment of discharges of urban waste water from agglomerations of more than 10 000 population equivalent – Lack – Partial collection and treatment – Failure to fulfil obligations (Council Directive 91/271, Arts 3(2), 4 and 5(2)) (see paras 49-50, 52)

Re:

Failure of a Member State to fulfil obligations – Infringement of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40).

Operative part

The Court:

1. Declares that,

– by identifying as less sensitive areas all the coastal waters of the Island of Madeira and of the Island of Porto Santo;

– by subjecting to treatment less stringent than that prescribed in Article 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, urban waste water from agglomerations with a population equivalent of more than 10 000, such as the agglomerations of Funchal and Câmara de Lobos, discharged into the coastal waters of the Island of Madeira;

– by failing to ensure, with regard to an agglomeration along the estuary of the River Tagus, namely, Quinta do Conde, the provision of collecting systems for urban waste water in accordance with Article 3 of the directive;

– by failing to ensure, with regard to the agglomerations of Albufeira/Armação de Pêra, Beja, Chaves and Viseu and four agglomerations discharging on the left bank of the Tagus estuary, Barreiro/Moita, Corroios/Quinta da Bomba, Quinta do Conde and Seixal, treatment more stringent than that prescribed in Article 4 of the directive;

the Portuguese Republic has failed to fulfil its obligations under Articles 3, 5 and 6 of Directive 91/271;
Judgment of the Court (Fourth Chamber) of 21 December 2011 – Haltergemeinschaft LBL v Hauptzollamt Düsseldorf

(Case C-250/10)

Directive 2003/96/EC – Taxation of energy products and electricity – Article 14(1)(b) – Exemption of energy products used as fuel for air navigation – Fuel provided by the owner of an aircraft used by the charterers of that aircraft for their flights for purposes other than the provision of a service for consideration

Tax provisions – Harmonisation of laws – Taxation of energy products and electricity – Exemption of energy products supplied for use as fuel for the purposes of air navigation other than private tourism – Extent – Leasing or chartering of an aircraft by an undertaking for its own commercial purposes other than the provision of a service for consideration – Excluded (Council Directive 2003/96, Art. 14(1)(b)) (see paras 25-26, operative part)

Re:

Reference for a preliminary ruling – Finanzgericht Düsseldorf – Interpretation of Article 14(1)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) – Extent of the exemption envisaged for energy products supplied for use as fuel for the purpose of air navigation – Exemption of fuel provided by the owner or lessor of an aircraft, not being an airline, used by the charterers of the aircraft for their flights for commercial purposes.

Operative part

The Court:

Declares that Article 14(1)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as meaning that the tax exemption of energy products supplied for use as fuel for the purpose of air navigation other than private tourism provided for by that provision cannot apply in the case of a company, such as the applicant in the main proceedings, when it leases or hires out under a charter an aircraft belonging to it with fuel to undertakings whose air navigation operations are not directly used for the supply, by those undertakings, of air services for consideration.
Judgment of the Court (Sixth Chamber) of 1 March 2012 —

Commission v Greece



(Case C-354/10)

Failure to fulfil obligations — State aid — Tax-exempt reserve fund — Incompatibility with the common market — Recovery — Failure to execute

1. Procedure — Rules on languages — Production of procedural documents in a language other than that of the case — Conditions for admissibility (Rules of Procedure of the Court of Justice, Art. 29(2)(a)(3) (see paras 33, 34)

2. State aid — Recovery of unlawful aid — Obligation — Duty to execute, immediately and effectively, the Commission’s decision (Arts 108(2) TFEU and 288 TFEU; Council Regulation 659/1999, Art. 14(3)) (see paras 56-61, 65)

3. Actions for failure to fulfil obligations — Failure to comply with a Commission decision concerning State aid — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Duty of the Commission and the Member State to work together in seeking a solution consistent with the Treaty (Arts 4(3) TFEU and 108(2) TFEU) (see paras 68-70, 73)

4. State aid — Recovery of unlawful aid — Application of national law — Conditions — Putting in hand a procedure ensuring immediate, effective execution of the Commission’s decision (Arts 108(2) TFEU and 288 TFEU; Council Regulation No 659/1999, Art. 14(3) (see paras 75, 77)

Re:

Failure of a Member State to fulfil obligations — Failure to take, within the period prescribed, the measures necessary for recovery of the aid found to be unlawful and incompatible with the internal market by Article 1(1) (excepting the aid referred to in Article 1(2) and Articles 2 and 3) of the Commission decision of 18 July 2007 (C(2007) 3251) concerning the tax-exempt reserve fund (State aid C 37/05).

Operative part

The Court:

1. Declares that, by failing to adopt, within the period prescribed, all the measures necessary for recovery, in accordance with Article 1(1) of Commission Decision 2008/723/EC of 18 July 2007 on State aid C 37/05 (ex NN 11/04) implemented by Greece — tax-exempt reserve fund, of the aid held unlawful and incompatible with the internal market, excepting the aid referred to in Article 1(2) and Articles 2 and 3 of that decision, the Hellenic Republic has failed to fulfil its obligations under Articles 4 to 6 of that decision;
19

Article 19 of that directive, entitled ‘Burden of proof’, is worded as follows: ‘1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. 3. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case. 4. Paragraphs 1, 2 and 3 shall also apply to: (a) the situations covered by Article 141 of the [EC] Treaty and, insofar as discrimination based on sex is concerned, by Directives 92/85/EEC and 96/34/EC; (b) any civil or administrative procedure concerning the public or private sector which provides for means of redress under national law pursuant to the measures referred to in (a) with the exception of out-of-court procedures of a voluntary nature or provided for in national law. 5. This article shall not apply to criminal procedures, unless otherwise provided by the Member States.’