ddrg/super_eurlex huggingface dataset:
12

Article 8 of the regulation, headed ‘Refusal to accept a document’, provides: ‘1. The receiving agency shall inform the addressee, using the standard form set out in Annex II, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected. 2. Where the receiving agency is informed that the addressee refuses to accept the document in accordance with paragraph 1, it shall immediately inform the transmitting agency by means of the certificate provided for in Article 10 and return the request and the documents of which a translation is requested. 3. If the addressee has refused to accept the document pursuant to paragraph 1, the service of the document can be remedied through the service on the addressee in accordance with the provisions of this Regulation of the document accompanied by a translation into a language provided for in paragraph 1. In that case, the date of service of the document shall be the date on which the document accompanied by the translation is served in accordance with the law of the Member State addressed. However, where according to the law of a Member State, a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be the date of the service of the initial document determined pursuant to Article 9(2). 4. Paragraphs 1, 2 and 3 shall also apply to the means of transmission and service of judicial documents provided for in Section 2. 5. For the purposes of paragraph 1, the diplomatic or consular agents, where service is effected in accordance with Article 13, or the authority or person, where service is effected in accordance with Article 14, shall inform the addressee that he may refuse to accept the document and that any document refused must be sent to those agents or to that authority or person respectively.’
8

Article 46 of that directive, entitled ‘The right to an effective remedy’, states: ‘1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following: (a) a decision taken on their application for international protection, including a decision: (i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status; … 3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU [of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9)], at least in appeals procedures before a court or tribunal of first instance. … 5. Without prejudice to paragraph 6, Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy. 6. In the case of a decision: (a) considering an application to be manifestly unfounded in accordance with Article 32(2) or unfounded after examination in accordance with Article 31(8), except for cases where these decisions are based on the circumstances referred to in Article 31(8)(h); (b) considering an application to be inadmissible pursuant to Article 33(2)(a), (b) or (d); (c) rejecting the reopening of the applicant’s case after it has been discontinued according to Article 28; or (d) not to examine or not to examine fully the application pursuant to Article 39, a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon the applicant’s request or acting ex officio, if such a decision results in ending the applicant’s right to remain in the Member State and where in such cases the right to remain in the Member State pending the outcome of the remedy is not provided for in national law. …’
52

That being so, in order to provide a useful answer to the referring court, it must be noted that it is clear from the information put before the Court that the harm suffered by the applicant in the main proceedings as a result of the alleged discrimination, as compared with permanent workers, appears to relate to the fact that her salary grade was calculated not on the basis of the national legislation applicable on the date she was hired permanently, namely 1 September 2011, but on the basis of subsequent provisions in force on the date of the authority’s decision to reconstruct her career, namely 8 September 2014. Despite the fact that the applicant, at the date she was engaged on a permanent basis, had completed a period of service of more than three years, making her eligible for classification in Grade 2 of the pay scale in force at the time, she did not benefit from application of the transitional provisions relating to the amendment of that pay scale as from 1 January 2012, despite the fact that those transitional provisions were intended to ensure that workers in Grade 2 at that date maintained that grade. Since the referring court did not question the Court on that point, it is for the former to verify, if appropriate, whether such retroactive application of the new pay scale complies with the principles of legal certainty and protection of legitimate expectations.
8

Article 527 et seq. of the ustawa Kodeks cywilny (Law on the Civil Code) of 23 April 1964 (Dz. U. of 1964, No 16, position 93), in the version applicable to the case in the main proceedings (Dz. U. of 2017, position 459) (‘the Civil Code’) governing the so-called actio pauliana, which may render a transaction whereby the debtor has effected a disposition in fraud of the creditor’s rights ineffective in relation to the creditor. Article 527 of the Civil Code states: ‘(1) If, as a result of a legal act of a debtor done to the detriment of creditors, a third party has obtained an economic advantage, any of the creditors may request that that act be declared ineffective in respect of him, where the debtor knowingly acted to the detriment of the creditor, and the third party knew or, in the exercise of due diligence, could have known, about it. (2) A legal act of a debtor is done to the detriment of creditors if, as a result of such act, the debtor has become insolvent or insolvent to a greater degree than he was before the act was done. (3) If, as a result of a legal act of a debtor done to the detriment of creditors, a person who is in a close relationship with the debtor has obtained an economic advantage, it shall be presumed that such person knew that the debtor knowingly acted to the detriment of the creditors. (4) If, as a result of a legal act of a debtor done to the detriment of creditors, an undertaking in a permanent commercial relationship with the debtor has obtained an economic advantage, it shall be presumed that it was aware that the debtor knowingly acted to the detriment of the creditors.’
6

Article 15 of Directive 2006/123, entitled ‘Requirements to be evaluated’, provides: ‘1. Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3. Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions. 2. Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements: … (d) requirements, other than those concerning matters covered by Directive 2005/36/EC [of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22)] or provided for in other [EU] instruments, which reserve access to the service activity in question to particular providers by virtue of the specific nature of the activity; … 3. Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions: (a) non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of the registered office; (b) necessity: requirements must be justified by an overriding reason relating to the public interest; (c) proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result. 4. Paragraphs 1, 2 and 3 shall apply to legislation in the field of services of general economic interest only in so far as the application of these paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them. …’
15

In those circumstances the Tribunal de première instance de Liège (Court of First Instance, Liège) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Does Article 15(1) of the [Belgium-Luxembourg] Convention, interpreted (i) as allowing a restriction on the power of taxation of the source State in respect of the remuneration of an employee residing in Belgium and performing his activity for a Luxembourgish employer in proportion to the activity performed on Luxembourgish territory, (ii) as allowing a power of taxation to be attributed to the State of residence in respect of the amount of remuneration relating to the activity performed outside Luxembourgish territory, (iii) as requiring the employee to be permanently and every day physically present at the seat of his employer when it is not disputed that he regularly travels there as the result of a judicial assessment, conducted with flexibility, on the basis of objective and verifiable evidence and (iv) as requiring courts and tribunals to evaluate the existence and relevance of the services provided there and elsewhere, day by day, with a view to establishing a proportion over 220 business days, infringe Article 45 [TFEU] in that it constitutes a tax hindrance which discourages cross-border activities and breaches the general principle of legal certainty in that it does not provide for a stable and secure regime of exemption of the entirety of the remuneration received by a Belgian resident employed by an employer whose place of effective management is situated in the Grand Duchy of Luxembourg and places him at risk of double taxation of all or part of his income and subjects him to an unpredictable, legally uncertain regime?’
7

Paragraph 7m of the AVRAG provides: ‘1. Where there is reasonable suspicion of an administrative offence under Paragraph 7b(8), 7i or 7k(4), and if it is to be presumed on the basis of certain facts that prosecution or enforcement of penalties will be impossible or substantially more difficult for reasons connected with the person of the employer (contractor) or the person hiring out workers, the tax authorities in connection with investigations under Paragraph 7f and the construction workers’ leave and employment termination payment fund may require in writing the person commissioning the works, or in the case of hiring out of workers the employer, not to pay the price still owed for the works or the remuneration still owed for hiring out workers, or parts thereof (suspension of payments). … … 3. Where there is reasonable suspicion of an administrative offence under Paragraph 7b(8), 7i or 7k(4), and if it is to be presumed on the basis of certain facts that prosecution or enforcement of penalties will be impossible or substantially more difficult for reasons connected with the person of the employer (contractor) or the person hiring out workers, the district administrative authority may, by a decision, order the person commissioning the works, or in the case of hiring out of workers the employer, to pay the price still owed for the works or the remuneration still owed for hiring out workers, or parts thereof, as security within a reasonable time. … … 5. Payment under subparagraph 3 shall have the effect, for the person commissioning the works or the employer, of releasing him from his debt as against the contractor or the person hiring out workers, to the extent of the payment. …’
5

Paragraph 1 of the Grunderwerbsteuergesetz (the Law on real property transfer tax), in the version applicable to the dispute in the main proceedings (‘the GrEStG’), provides: ‘(1) The following legal transactions shall be subject to real property transfer tax in so far as they concern properties located within Germany: 1. a purchase agreement or another legal act establishing the right to transfer ownership; 2. the conveyance agreement where there has been no prior legal act establishing the right to transfer ownership; 3. the transfer of ownership where there has been no prior legal act establishing the right to transfer ownership and nor is a conveyance agreement required … … (2) Legal transactions which, without establishing a right to transfer ownership, enable another person legally or financially to make use, for its own account, of property located in Germany, shall also be subject to real property transfer tax. (2a) If a property located within Germany forms part of the assets of a partnership and the list of partners changes directly or indirectly within five years in such a way that at least 95% of the shares in the partnership assets are transferred to new partners, this shall qualify as a legal act transferring ownership of a property to a new partnership. (3) If a property located within Germany forms part of the assets of a company, the following legal transactions shall also be subject to tax, provided that taxation pursuant to subparagraph 2a is excluded: 1. a legal act establishing the right to transfer one or more shares in a company if, following the transfer, at least 95% of the shares in the company would be exclusively held, directly or indirectly, by the purchaser or by controlling and dependent undertakings or dependent persons, or by dependent undertakings or dependent persons; 2. the consolidation, directly or indirectly, of at least 95% of the shares in the company, where there has been no prior contractual transaction within the meaning of point 1; 3. a legal act establishing the right to transfer, directly or indirectly, at least 95% of the shares in the company; 4. the transfer, directly or indirectly, of at least 95% of the shares in the company to another person, where that transfer is not preceded by a contractual transaction within the meaning of point 3.’
8

Article 31 of the Real Decreto 1624/1992 por el que se aprueba el Reglamento del Impuesto sobre el Valor Añadido (Royal Decree 1624/1992 adopting regulations on value added tax), of 29 December 1992, entitled ‘Refunds for certain traders or professional practitioners not established within the area of application of [VAT] or within the Community, or in the Canary Islands, Ceuta or Melilla’, in the version applicable at the time of the facts in the main proceedings, provides: ‘… 7. ... Where there is doubt concerning the validity or accuracy of the information contained in a refund application or in the electronic copy of the invoices or import documents referred to therein, the body processing the application may, where necessary, use the procedure for obtaining additional or subsequent information referred to in Article 119(7) of Law 37/1992 to call upon the applicant to produce the originals of such documents. Such original documents shall be made available to the tax authority until the expiry of the limitation period applying to the tax. The addressee of a request for additional or subsequent information shall respond within one month from the date such request was received. 8. Refund requests shall be decided and the applicant notified within four months from the date on which the application was received by the competent decision-making body. However, where a request for additional or subsequent information is necessary, the refund request shall be decided and the applicant notified within two months from the date on which the information sought was received or, where the addressee fails to respond to such request, from the date one month after the date on which the request was made. In such cases, the refund procedure shall have a minimum duration of six months from the date on which the application was received by the competent decision-making body. In any event, where a request for additional or subsequent information is necessary, the refund application shall be decided within a maximum period of eight months from the date on which the application was received and, in the event that clear notification of the decision is not received within the periods referred to in this paragraph, the refund application shall be deemed refused. … 10. An applicant shall be entitled to appeal against any refusal or partial refusal of an application in accordance with the provisions of Title V of the [Ley 58/2003 General Tributaria (Law 58/2003 establishing the General Tax Code, ‘the General Tax Code’) of 17 December 2003]. …’
8

According to Article 5(1) to (3) of Directive 2008/95: ‘1. The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: (a) any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered; (b) any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association between the sign and the trade mark. 2. Any Member State may also provide that the proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with, or similar to, the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark. 3. The following, inter alia, may be prohibited under paragraphs 1 and 2: (a) affixing the sign to the goods or to the packaging thereof; …’
16

It is in that context that the Grondwettelijk Hof (Constitutional Court, Belgium) has decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Should Article 132(1)(c) of Council Directive [2006/112] be interpreted as meaning that that provision reserves the exemption to which it refers, in the case of both conventional and non-conventional practices, to practitioners of a medical or a paramedical profession that is subject to national legislation governing the healthcare professions and who meet the requirements laid down by that national legislation, and that persons who do not meet those requirements, but who are affiliated to a professional association of chiropractors or osteopaths and who meet the requirements laid down by that association, are excluded from that exemption? (2) Should Article 132(1)(b), (c) and (e), Article 134 and Article 98 of Council Directive [2006/112], read in conjunction with points 3 and 4 of Annex III to that directive, in particular from the point of view of the principle of fiscal neutrality, be interpreted as meaning: (a) that they preclude a national provision which provides for a reduced rate of VAT to be applicable to medicinal products and medical aids supplied in connection with an operation or treatment of a therapeutic nature, whereas medicinal products and medical aids supplied in connection with an operation or treatment of a purely aesthetic nature, and closely related thereto, are subject to the normal rate of VAT; (b) or that they permit or require equal treatment of both the aforementioned cases? (3) Is there an obligation on the Constitutional [c]ourt to maintain, on a temporary basis, the effects of the … provisions to be annulled [on account of their incompatibility with Directive 2006/112], as well as those of the provisions which, if necessary, must be annulled in whole or in part, if it follows from the answer to the first or the second question … that those provisions are contrary to EU law, in order to enable the [national] legislature to bring them into line with EU law?’
66

It follows from the foregoing, as the Advocate General observed in essence in points 102 to 105, 107 and 108 of his Opinion, that where a court or tribunal rules exhaustively on an appeal by an applicant for international protection and makes, on that occasion, an up-to-date examination of the ‘international protection needs’ of that applicant on the basis of all the relevant elements of fact and law, following which it reaches the conclusion that the applicant must be granted the status of refugee or person eligible for subsidiary protection status, in accordance with the criteria laid down in Directive 2011/95, for the reasons that he or she relies on in support of his or her application and that court or tribunal annuls the decision of the administrative or quasi-judicial body rejecting that application and refers the case file back to that body, the latter is, subject to matters of fact or law arising that objectively require a new up-to-date assessment, bound by the decision of that court or tribunal and the grounds that support it. Therefore, in the context of such a referral back, that body no longer has a discretionary power as to the decision to grant or refuse the protection sought in the light of the same grounds as those that were submitted to that court or tribunal, otherwise Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, as well as Articles 13 and 18 of Directive 2011/95, would be deprived of all their practical effect.
24

In the second place, the referring court states that while Article 2(1)(i) of the Code on Copyright and Related Rights clearly includes works of applied art, industrial designs and works of design in the list of works protected by copyright, it does not specify the level of originality required for such subject matter to be granted that protection. The referring court also states that there is on that issue, which is at the heart of the dispute between Cofemel and G-Star, no consensus in Portuguese case-law and legal theory. For that reason, the referring court is uncertain whether it should be held, in the light of the interpretation of Directive 2001/29 adopted by the Court in the judgments of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465), and of 1 December 2011, Painer (C‑145/10, EU:C:2011:798), that the protection ensured by copyright extends to such subject matter in the same way as to any literary and artistic work, and therefore subject to the condition that it is original, in the sense that it is the result of the author’s own intellectual creation, or whether it is possible to hold that a prerequisite of such protection is the existence of a specific degree of aesthetic or artistic value.