ddrg/super_eurlex huggingface dataset:
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive – Banking transactions covered by Article 13B(d)(3)

(Council Directive 77/388, Art. 13B(d)(3))

Summary

Article 13B(d)(3) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that the exemption from value added tax provided for by that provision does not cover a supply of services which consist, in essence, in requesting a third party’s bank to transfer to the service supplier’s account, via the direct debit system, a sum due from that party to the service supplier’s client, in sending to the client a statement of the sums received, in making contact with the third parties from whom the service supplier has not received payment and, finally, in giving instructions to the service supplier’s bank to transfer the payments received, less the service supplier’s remuneration, to the client’s bank account.

In fact, such a service comes within the meaning of ‘debt collection and factoring’ in Article 13B(d)(3) and is therefore excluded from the list of exemptions, for it is intended to obtain the payment of sums of money due to the service supplier’s clients from those third parties and is therefore intended to obtain the payment of debts. By undertaking the recovery of debts for the account of those entitled to them, the service supplier frees its clients of tasks which, without its intervention, those clients, as creditors, would have to perform themselves, tasks consisting in requesting the transfer of the sums due to them, via the direct debit system.

(see paras 28, 32-33, 36, operative part)
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European Union – Police and judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant

(Council Framework Decision 2002/584, Arts 4(6) and 5(1) and (3))

Summary

Article 4(6) and 5(3) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that, when the executing Member State concerned has implemented Article 5(1) and Article 5(3) of that framework decision in its domestic legal system, the execution of a European arrest warrant issued for the purposes of execution of a sentence imposed in absentia within the meaning of Article 5(1) of the framework decision may be made subject to the condition that the person concerned, who is a national or resident of the executing Member State, should be returned to the executing Member State in order, as the case may be, to serve there the sentence passed against him, following a new trial arranged in his presence in the issuing Member State.

Given that the situation of a person who was sentenced in absentia and to whom it is still open to apply for a retrial is comparable to that of a person who is the subject of a European arrest warrant for the purposes of prosecution, there is no objective reason precluding an executing judicial authority which has applied Article 5(1) of Framework Decision 2002/584 from applying the condition contained in Article 5(3) of that framework decision.

(see paras 57, 61, operative part)
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Common Customs Tariff – Customs duties – Community tariff quotas

(Council Regulation No 2658/87, Annex I; Commission Regulations No 1864/2004 and No 1719/2005)

Summary

The specific customs duty of EUR 222 per 100 kilograms of net drained weight, applicable under Regulation No 1719/2005 amending Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and charged on imports of preserved mushrooms of the genus Agaricus coming under subheading 2003 10 30 of the Combined Nomenclature in that annex and effected outside the quota opened by Regulation No 1864/2004 opening and providing for the administration of tariff quotas for preserved mushrooms imported from third countries, as amended by Regulation No 1995/2005, is valid in the light of the principle of proportionality.

In order to assess the validity of the amount of that specific customs duty, which pursues both common commercial policy objectives and common agricultural policy objectives, it is important to examine whether that amount constitutes a manifestly disproportionate measure for achieving those objectives. In that regard, in view of the inherent complexity in deciding, at the outset, in the negotiations within the World Trade Organisation (WTO), upon the level of the specific customs duty at which the imports in question would become economically of little advantage, it cannot be claimed that the institutions of the Union concerned exceeded the limits of their broad discretion in the matter by fixing the amount of the maximum Union customs duty at EUR 222 per 100 kilograms of net drained weight. That amount cannot therefore be regarded as being manifestly disproportionate. Likewise, it cannot be inferred from the fact that the amount of the specific customs duty would have the effect of depriving imports, outside tariff quotas, of any prospect of economic profitability that that amount is manifestly disproportionate in relation to the objectives pursued because, in accordance with the most-favoured nation principle referred to in Article 1 of the 1994 General Agreement on Tariffs and Trade, it is not permitted to set the specific customs duty at a level which differs each time with regard to each member of the WTO. Therefore, the argument that the level of the specific customs duty prevents the sale, in the Union, of mushrooms from a particular third country, in view of the cost of production of those mushrooms, cannot establish that the Union legislature exceeded its broad discretion when it fixed the amount of the specific customs duty at EUR 222 per 100 kilograms of net drained weight, which is applicable to imports, outside tariff quotas, from all the Member States of the WTO.

(see paras 27, 31-35, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive – Exemption regarding the provision of medical care in the medical and paramedical professions – Scope

(Council Directive 77/388, Art. 13(A)(1)(c))

Summary

Article 13(A)(1)(c) of Sixth [Council] Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, must be interpreted as meaning that the removal of joint cartilage cells from cartilage material taken from a human being and the subsequent multiplication of those cells for reimplantation for therapeutic purposes constitute ‘provision of medical care’ in accordance with that provision.

The concept of ‘provision of medical care’ is intended to cover services having as their purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders. Whilst the provision of medical care must have a therapeutic purpose, it does not necessarily follow that the therapeutic purpose of a service must be confined within a particularly narrow compass. In that regard, the fact that the services are carried out by laboratory staff who are not qualified medical practitioners is irrelevant, inasmuch as it is not necessary for every aspect of therapeutic care to be provided by medical staff. Moreover, whether the multiplied cells are reimplanted into the patient from whom they were originally removed or another patient has no bearing on the classification of a service as ‘the provision of medical care’.

(see paras 24, 28-29, 32, operative part)
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Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 267 TFEU)

Summary

It is essential that the Court have available to it the factual and legislative background to the main proceedings, for the information furnished in orders for reference serves not only to enable the Court to give helpful answers, but also to enable the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties. Therefore, whilst the Court of Justice must be able to place as much reliance as possible upon the assessment by the national court of the extent to which the questions submitted are necessary, it must be in a position to make any assessment inherent in the performance of its own duties in particular in order to determine, as all courts must, whether it has jurisdiction.

In relation to a question referred for a preliminary ruling on the interpretation of Directive 2003/55 concerning common rules for the internal market in natural gas and repealing Directive 98/30, submitted in proceedings relating to the annulment of a decision setting tariffs for the transportation of gas contrary to national legislation, the Court is no longer in a position to give a ruling on the question referred to it, if, following the lodging of the order for reference, first, that legislation has been annulled by the constitutional court of the Member State concerned and therefore the background of national law against which the dispute in the main proceedings is set is no longer that described by the referring court in its order for reference, and if, second, the applicant has withdrawn its pleas claiming an infringement of the national legislation at issue.

(see paras 30-31, 33-34)
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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Sixth Directive – Transactions constituting an abusive practice – Meaning

(Council Directive 77/388)

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Sixth Directive – Transactions constituting an abusive practice

(Council Directive 77/388)

Summary

1. The tax advantage accruing from an undertaking’s recourse to asset leasing transactions, instead of the outright purchase of those assets, does not constitute a tax advantage the grant of which would be contrary to the purpose of the relevant provisions of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, and of the national legislation transposing it, provided that the contractual terms of those transactions, particularly those concerned with setting the level of rentals, correspond to arm’s length terms and that the involvement of an intermediate third party company in those transactions is not such as to preclude the application of those provisions, a matter which it is for the national court to determine.

The fact that the undertaking does not engage in leasing transactions in the context of its normal commercial operations is irrelevant in that regard. A finding that there was an abusive practice is inferred, not from the nature of the commercial operations usually engaged in by the party which made the transactions, but from the object, purpose and effects of those transactions.

(see paras 44-45, operative part 1)

2. If certain contractual terms of leasing transactions to which an undertaking has recourse and/or the intervention of an intermediate third party company in those transactions constitute an abusive practice, those transactions must be redefined so as to re-establish the situation that would have prevailed in the absence of the elements of those contractual terms which are abusive and/or in the absence of the intervention of that company. In that context, the redefinition must go no further than is necessary for the correct charging of the value added tax and the prevention of tax evasion.

(see paras 52-53, operative part 2)
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Social security for migrant workers – Old-age and survivor’s insurance – Periods to be taken into consideration

(Council Regulation No 1408/71, Art. 45(1))

Summary

Article 45(1) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that, in the determination of the minimum insurance period required by national law for the purpose of the acquisition by a migrant worker of entitlement to a retirement pension, the competent institution of the Member State concerned must take into consideration, for the purposes of determining the limit which non-contribution periods may not exceed in relation to contribution periods, as provided for by the legislation of that Member State, all insurance periods completed in the course of the migrant worker’s career, including those completed in other Member States.

(see para. 39, operative part)
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Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Member States under an obligation to require assessment of projects likely to have a significant effect on the environment – Concept of ‘project’ or ‘construction’

(Council Directive 85/337, as amended by Directive 97/11, Art. 1(2), first indent, and Annexes I, point 7, and II, point 13, first indent)

Summary

The second indent of Article 1(2) of and point 7 of Annex I to Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11, must be interpreted as meaning that the renewal of an existing permit to operate an airport cannot, if there are no works or interventions involving alterations to the physical aspect of the site, be classified as a ‘project’ or ‘construction’, respectively, within the meaning of those provisions.

However, it is for the national court to determine, on the basis of the national legislation applicable and taking account, where appropriate, of the cumulative effect of a number of works or interventions carried out since the entry into force of Directive 85/337, whether that permit forms part of a consent procedure carried out in several stages, the ultimate purpose of which is to enable activities which constitute a project within the meaning of the first indent of point 13 of Annex II, read in conjunction with point 7 of Annex I, to the directive to be carried out. If no assessment of the environmental effects of such works or interventions was carried out at the earlier stage of the consent procedure, it would be for the national court to ensure that the directive was effective by satisfying itself that such an assessment was carried out at the very least at the stage at which the operating permit was to be granted.

(see paras 24, 30, 32, 34, 36, 38, operative part)
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1. Actions for failure to fulfil obligations – Failure to comply with a Commission decision concerning State aid – Duty to recover the aid granted – Reference period

(Art. 88(2), second para., EC)

2. State aid – Recovery of unlawful aid – Application of national law – Conditions and limits

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(3))

3. Actions for failure to fulfil obligations – Failure to fulfil the obligation of recovering unlawful aid – Defences – Fulfilment absolutely impossible – Criteria for assessment – Difficulties in fulfilling obligation

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(3))

Summary

1. The relevant date for the assessment of an action for failure to fulfil obligations brought pursuant to the second paragraph of Article 88(2) EC is that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission.

However, in order to establish the date on which the period prescribed for fulfilment of the obligation expired, any suspension of the operation of the Commission’s decision ordered by the President of the General Court must be taken into account.

(see paras 50, 52)

2. In accordance with Article 14(3) of Regulation No 659/1999 on the application of Article 88 of the EC Treaty, recovery of unlawful aid imposed by a Commission decision is to 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 decision.

In the case of bankrupt undertakings that have received aid declared incompatible with the common market, restoration of the previous situation and elimination of the distortion of competition arising from the unlawfully paid aid may, in principle, be achieved by registration of the liability relating to the repayment of the aid in question in the schedule of liabilities.

(see paras 59-60)

3. In an action for failure to fulfil obligations brought by the Commission on the basis of Article 88(2) EC, the only defence that a Member State may rely on is to plead that it was absolutely impossible to give proper effect to the decision to recover. The condition that it should be absolutely impossible to give effect to such a decision is not met when the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in carrying out the decision, but does not take any real steps to recover the aid from the undertakings concerned, or propose to the Commission any alternative arrangements for carrying out the decision which could have enabled those difficulties to be overcome. In addition, fear of internal difficulties in connection with giving effect to a decision on State aid cannot justify failure by a Member State to fulfil its obligations under Union law.

(see paras 69-70, 72)
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The Union’s own resources

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Establishment and making available by the Member States

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Crediting the amount to the Commission’s account

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Delay in crediting the amount

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Failure to fulfil obligations

–

Obligation to pay interest (Council Regulations No 1552/89, Arts 2, 6 and 9 to 11, No 2913/92, Art. 220, and No 1150/2000, Arts 2, 6 and 9 to 11) (see paras 35-39, 41, 49-51, operative part

)
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1. Free movement of capital – Provisions of the Treaty – Territorial scope – Overseas countries and territories – Whether they are included as non‑Member States

(Art. 63 TFEU)

2. Free movement of capital – Restrictions on movements of capital to and from non-Member States – Restrictions existing on 31 December 1993 – Tax on the market value of immovable property

(Arts 63 and 64(1) TFEU)

Summary

1. In view of the unlimited territorial scope of Article 63 TFEU, it must be regarded as necessarily applying to movements of capital to and from overseas countries and territories (OCTs).

However, OCTs are subject to the special association arrangements set out in Part Four of the Treaty, with the result that, failing express reference, the general provisions of the Treaty, whose territorial scope is in principle confined to the Member States, do not apply to them. OCTs therefore benefit from the provisions of Union law in a similar manner to the Member States only when Union law expressly provides that OCTs and Member States are to be treated in such a manner.

The EU and FEU Treaties do not contain any express reference to movements of capital between Member States and OCTs. It follows that OCTs benefit from the liberalisation of the movement of capital provided for in Article 63 TFEU in their capacity as non‑Member States.

(see paras 20, 29-31)

2. Article 64(1) TFEU must be interpreted as meaning that Article 63 TFEU is without prejudice to the application of national legislation in force on 31 December 1993 which exempts from the tax on the market value of immovable property located in the territory of a Member State of the European Union companies having their registered office in the territory of that State and makes entitlement to that exemption, for a company whose registered office is in an overseas country or territory, conditional either on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between that Member State and that territory or on there being a requirement, under a treaty containing a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than companies established in the territory of that Member State.

(see para. 38, operative part)
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Preliminary rulings – Reference to the Court – National court or tribunal for the purposes of Article 267 TFEU

(Art. 267 TFEU)

Summary

The Court of Justice has no jurisdiction to rule on a reference for a preliminary ruling from the Complaints Board of the European Schools.

In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU, which is a question governed by European Union law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.

Although, as all the parties intervening in this case observed, the Complaints Board meets all those criteria and must, therefore, be deemed to be a ‘court or tribunal’ within the meaning of Article 267 TFEU, it falls within the remit, not of ‘a Member State’ but of the European Schools, which constitute, as the first and second recitals of the European Schools’ Convention state, a ‘sui generis’ system, which achieves, by means of an international agreement, a form of cooperation between the Member States and between those States and the European Union. It is thus a body of an international organisation which, despite the functional links which it has with the Union, remains formally distinct from it and from those Member States. In those circumstances, the mere fact that the Complaints Board is required to apply the general principles of Union law when it has a dispute before it is not sufficient to make the Board fall within the definition of ‘court or tribunal of a Member State’ and thus within the scope of Article 267 TFEU.

(see paras 37-39, 42-43, 46, operative part)