ddrg/super_eurlex huggingface dataset:
49

The Court therefore held, first of all, that where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. The Court added, next, that the same applies in the event that that link allows users of the website on which it is posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers, the posting of such a link then constituting a deliberate intervention without which those users could not benefit from the works broadcast. Finally, the Court stated that, when the posting of hyperlinks is carried out for profit, it can be expected that the person posting such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally published on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 (see judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraphs 49 to 51).
11

Article 219 ter of the WIB 92 provides: ‘(1) For the taxable period during which dividends are distributed within the meaning of Article 18(1)(1) to (2a), a separate assessment shall be introduced and calculated in accordance with the following paragraphs. That separate assessment shall be independent of and, where appropriate, complementary to other taxes which are due under other provisions of this Code or, where appropriate, in the context of the implementation of specific legal provisions. (2) The base of that separate assessment shall consist of the positive difference between the gross dividends that were distributed for the taxable period and the final taxable profits that are actually subject to the rate of corporation tax referred to in Articles 215 and 216. (3) The taxable base so established shall be reduced by the portion of the dividends distributed that originates from reserves taxed at an earlier date but not later than the 2014 tax year. For the application of this reduction, the taking into account of reserves already taxed shall be applied with priority to the last reserves introduced. For the 2014 tax year, dividends distributed during that same tax year can never be regarded as originating from reserves taxed for that same tax year. (4) The balance obtained is then limited according to a fraction which expresses the ratio between: — in the numerator, the deduction of losses actually carried forward for the taxable period and the risk capital deduction actually made for the same taxable period, and — in the denominator, the taxable profits for the taxable period, excluding exempted depreciations, provisions and capital gains. (5) The base determined in accordance with the preceding paragraphs shall not be limited or reduced in any other way. (6) The separate assessment shall be equal to 5% of the amount so calculated. (7) Companies which, on the basis of Article 15 of the Company Code, are regarded as small companies for the tax year related to the taxable period during which the dividends are distributed are not subject to that assessment.’
9

Article 132(1) of Directive 2006/112, which appears in Chapter 2, entitled ‘Exemptions for certain activities in the public interest’, of Title IX of the directive, provides: ‘Member States shall exempt the following transactions: (a) the supply by the public postal services of services other than passenger transport and telecommunications services, and the supply of goods incidental thereto; (b) hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable with those applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognised establishments of a similar nature; (c) the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned; (d) the supply of human organs, blood and milk; (e) the supply of services by dental technicians in their professional capacity and the supply of dental prostheses by dentists and dental technicians; (f) the supply of services by independent groups of persons, who are carrying on an activity which is exempt from VAT or in relation to which they are not taxable persons, for the purpose of rendering their members the services directly necessary for the exercise of that activity, where those groups merely claim from their members exact reimbursement of their share of the joint expenses, provided that such exemption is not likely to cause distortion of competition; (g) the supply of services and of goods closely linked to welfare and social security work, including those supplied by old people’s homes, by bodies governed by public law or by other bodies recognised by the Member State concerned as being devoted to social wellbeing; … (i) the provision of children’s or young people’s education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, by bodies governed by public law having such as their aim or by other organisations recognised by the Member State concerned as having similar objects; … (m) the supply of certain services closely linked to sport or physical education by non-profit-making organisations to persons taking part in sport or physical education; (n) the supply of certain cultural services, and the supply of goods closely linked thereto, by bodies governed by public law or by other cultural bodies recognised by the Member State concerned; …’
3

Article 29 of the Customs Code provides: ‘1. The customs value of imported goods shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted, where necessary, in accordance with Articles 32 and 33, provided: (a) that there are no restrictions as to the disposal or use of the goods by the buyer, other than restrictions which: – are imposed or required by a law or by the public authorities in the Community, – restrict the geographical area in which the goods may be resold, or – do not substantially affect the value of the goods; (b) that the sale or price is not subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued; (c) that no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with Article 32; and (d) that the buyer and seller are not related, or, where the buyer and seller are related, that the transaction value is acceptable for customs purposes under paragraph 2. … (a) The price actually paid or payable is the total payment made or to be made by the buyer to or for the benefit of the seller for the imported goods and includes all payments made or to be made as a condition of sale of the imported goods by the buyer to the seller or by the buyer to a third party to satisfy an obligation of the seller. The payment need not necessarily take the form of a transfer of money. Payment may be made by way of letters of credit or negotiable instrument and may be made directly or indirectly. (b) Activities, including marketing activities, undertaken by the buyer on his own account, other than those for which an adjustment is provided in Article 32, are not considered to be an indirect payment to the seller, even though they might be regarded as of benefit to the seller or have been undertaken by agreement with the seller, and their cost shall not be added to the price actually paid or payable in determining the customs value of imported goods.’
23

In those circumstances the Tribunale di Varese (District Court, Varese) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) May EU law, and more particularly Article 4(3) TEU, in conjunction with Article 325 TFEU and [the VAT Directive], which lay down for the Member States the duty of equal treatment so far as concerns policies relating to penalties, be interpreted as precluding the enactment of a provision of national law providing that the penal consequences of failure to pay VAT follow once a financial threshold is crossed greater than the threshold provided for in the case of failure to pay income tax? (2) May EU law, and more particularly Article 4(3) TEU in conjunction with Article 325 TFEU and [the VAT Directive], which oblige the Member States to provide effective, dissuasive and proportionate penalties to protect the financial interests of the European Union, be interpreted as precluding the enactment of a national provision which exempts the defendant (whether a director, legal representative, person to whom responsibility for fiscal matters has been delegated or an accessory to the offence) from liability to punishment if the entity with legal personality concerned has made late payment both of the tax itself and of the administrative penalties owed in connection with VAT, even though the tax assessment has already been made, criminal proceedings and indictment initiated, and the establishment of inter partes proceedings duly confirmed, but before trial proceedings have been declared opened, in a system that does not impose on that director, legal representative, or delegate and accessory to the offence any other penalty, not even an administrative penalty? (3) Must the concept of fraud governed by Article 1 of the PFI Convention be interpreted as encompassing cases of failure to pay or of partial or late payment of VAT and, consequently, does Article 2 of that convention require the Member State to punish with a term of imprisonment failure to pay or partial or late payment of VAT in relation to sums in excess of EUR 50000? If the answer is in the negative, it will be necessary to determine whether the rule under Article 325 TFEU, which requires the Member States to provide penalties, including criminal penalties, which are dissuasive, proportionate and effective, must be interpreted as precluding national legislation which exempts from criminal and administrative liability the directors and legal representatives of legal persons, or the persons to whom the functions of those legal persons are delegated and persons who are accessories to the offence, for failure to pay or partial or late payment of VAT in relation to sums equivalent to three or five times the minimum threshold laid down in case of fraud, that is to say, EUR 50000.’
Case C‑4/16

J.D.

v

Prezes Urzędu Regulacji Energetyki

(Request for a preliminary ruling

from the Sąd Apelacyjny w Warszawie Wydział Cywilny)

(Reference for a preliminary ruling — Environment — Directive 2009/28/EC — The second subparagraph of Article 2(a) — Energy from renewable sources — Hydropower — Meaning — Energy produced in a small-scale hydropower plant located at the point of discharge of industrial waste water from another plant)

Summary — Judgment of the Court (Second Chamber), 2 March 2017

Environment — Promotion of the use of energy from renewable sources — Directive 2009/28 — Concept of energy from renewable sources — Energy produced by a hydroelectric power station located at the point of discharge of industrial waste water from another plant — Included

(European Parliament and Council Directive 2009/28, Art. 2, second para., (a))

The concept of ‘energy from renewable sources’, in the second subparagraph of Article 2(a) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, must be interpreted as covering energy generated by a small-scale hydropower plant, which is not a pumped-storage power station or a hydropower plant with a pumping installation, located at the point of discharge of industrial waste water from another plant which previously used the water for its own purposes.

As was stated, in essence, by the Advocate General in points 36 to 38 of his Opinion, it follows from those factors that all hydropower constitutes energy from renewable sources, within the meaning of the second subparagraph of Article 2(a) of Directive 2009/28, whether it is generated by hydropower provided by a natural water flow, or whether it is generated from hydropower provided from an artificial water flow, with the exception of electricity generated from pumped storage units using water that has previously been pumped uphill. In order to avoid any risk of circumvention, it is nevertheless necessary that the uphill activity, which is at the source of that artificial water flow, does not exist solely to create that water flow for the purposes of its uphill exploitation in order to produce electricity. Therefore, in particular, electricity produced from hydropower provided from an artificial water flow where the latter was created uphill by pumping with the sole aim of producing that electricity downstream does not come within the concept of hydropower produced from renewable sources, for the purposes of Directive 2009/28.

(see paras 31, 36, 38, operative part)
Case C‑29/16

HanseYachts AG

v

Port D’Hiver Yachting SARL and Others

(Request for a preliminary ruling from the Landgericht Stralsund)

Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 27 — Lis pendens — Court first seised — Point 1 of Article 30 — Concept of ‘document instituting the proceedings’ or ‘equivalent document’ — Application for proceedings to preserve or establish, prior to any legal proceedings, evidence of facts on which a subsequent action could be based)

Summary — Judgment of the Court (Second Chamber), 4 May 2017

Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Lis pendens—Date on which a court is seised—Document equivalent to the document instituting the proceedings—Concept—Document instituting a procedure for a measure of inquiry before any legal proceedings—Precluded (Council Regulation No 44/2001, Art. 30, point 1) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Lis pendens—Date on which a court is seised—Concept—Date of institution of a procedure for a measure of instruction before any legal proceedings—Precluded (Council Regulation No 44/2001, Arts 27(1) and 30, point 1)
1)

Declares that, by accepting in a gravel mine situated on the territory of the municipality of Lovrenc na Dravskem polju (Slovenia) a persistent and continuous danger to the environment and human health, as a result of the inappropriate storage of large quantities of disused tyres, of the mixture of the latter with other waste and the landfill thereof in infringement of the requirements of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the Republic of Slovenia failed to fulfil its obligations under Article 5(3)(d) of that directive, as well as Articles 12 and 13 and Article 36(1) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives;
The first indent of Article 11(1) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that it covers not only cases of complete non-execution of the contract concluded between the principal and the third party, but also cases of partial non-execution of that contract, such as non-compliance with the volume of transactions or the duration envisaged by that contract.

Article 11(2) and (3) of Directive 86/653 must be interpreted as meaning that the clause of a contract for commercial agency pursuant to which the agent is required to refund, on a pro-rata basis, a part of his commission in the event of partial non-execution of the contract concluded between the principal and the third party does not constitute a ‘derogation to the detriment of the commercial agent’, for the purposes of that Article 11(3), if the part of the commission subject to the refund obligation is proportionate to the extent to which that contract has not been executed and on condition that that non-execution is not due to a reason for which the principal is to blame.

An obligation to refund a part of the commission proportionately greater than the extent of that non-execution would constitute a derogation to the detriment of the agent, prohibited by Article 11(3) of Directive 86/653. By contrast, a derogation to the advantage of the agent, consisting in requiring the refund of a part of the commission proportionally smaller than the extent of the non-execution of the contract remains possible.

(see paras 49, 51, operative part 2)
Legal persons governed by private law are required to prove their existence in law, by enclosing with their application proof of that existence, such as an extract from the register of companies, firms or associations or any other official document. That requirement also applies to legal persons who bring an action for annulment against an EU act imposing restrictive measures on them. Thus, while a person whose name was entered on a list of persons subject to restrictive measures must be accepted as having at least a non-material interest in having that listing annulled, in view of the consequences for his reputation, even after the removal of his name from that list, in the case of a legal person governed by private law, either that person must exist in law as at the date on which the General Court delivers its ruling or the action must have been brought by its successors.

(see paras 32, 36-38)
Article 56 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which introduces a system of concessions and licences for the organisation of online games of chance, if it contains discriminatory rules with regard to operators established in other Member States or if it lays down rules which are not discriminatory but which are applied in a manner which is not transparent or are implemented in such a way as to prevent or hinder an application from certain tenderers established in other Member States.

As regards, in the first place, national legislation such as that in force on 25 June 2014, it must be held that a rule of a Member State, such as that at issue in the main proceedings, according to which trustworthy operators of games of chance must have carried out, for a period of at least 10 years in the territory of that Member State, an activity of organisation of games of chance, creates a difference in treatment in that it puts operators of games of chance established in other Member States at a disadvantage compared to the national operators concerned who may fulfil that condition more easily. The mere fact of putting forward an objective of general interest cannot suffice to justify such a difference in treatment.

As regards, in the second place, national legislation such as that in force on 29 August 2014, the obligation to have carried out an activity of organising games of chance for three years in a Member State does not create an advantage for operators established in the host Member State and could be justified by a general interest objective. However, it is important that the rules in question are applied transparently to all tenderers. That requirement is not satisfied by national legislation such as that at issue in the main proceedings, whose conditions governing the exercise of the powers of the Minister for the Economy which it sets in such a procedure and technical conditions having to be fulfilled by operators of games of chance when submitting their tenders, were not defined with sufficient precision.

(see paras 44-48, operative part 1)
The provisions of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, read in the light of Articles 191 TFEU and 193 TFEU, must be interpreted as meaning that, to the extent that the situation in the main proceedings comes within the scope of Directive 2004/35 — this being a matter for the referring court to determine — such provisions do not preclude national legislation, such as that at issue in the main proceedings, which identifies another category of persons who, in addition to those using the land on which unlawful pollution was produced, share joint liability for the environmental damage, namely the owners of that land, without it being necessary to establish a causal link between the conduct of the owners and the damage established, provided that such legislation complies with the general principles of EU law, all relevant provisions of the EU and FEU Treaties and of the acts of secondary law of the European Union.

(see para. 63, operative part 1)
Case C‑132/16

Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Sofia

v

‘Iberdrola Inmobiliaria Real Estate Investments’ EOOD

(Request for a preliminary ruling

from the Varhoven administrativen sad)

(Reference for a preliminary ruling — Taxation — Common system of value added tax — Directive 2006/112/EC — Article 26(1)(b) and Articles 168 and 176 — Deduction of input tax — Services relating to construction or improvement of a property belonging to a third party — Use of services by the third party and by the taxable person — Service supplied free of charge to the third party — Entry of costs incurred for services carried out in the accounts as part of the taxable person’s general costs — Determination of the existence of a direct and immediate link with the economic activity of the taxable person)

Summary — Judgment of the Court (First Chamber), 14 September 2017

Harmonisation of fiscal legislation—Common system of value added tax—Deduction of input tax—Restrictions on the right to deduct—Retention of the exceptions from the right to deduct in place at the date of accession to the European Union—Conditions—Exemptions of a non-general nature (Council Directive 2006/112, Art. 176) Harmonisation of fiscal legislation—Common system of value added tax—Deduction of input tax—Origin and scope of right to deduct—Goods and services used for the purposes of the taxable person’s taxable transactions—Need for a direct and immediate link between the input transaction and the taxable person’s activity—Fact which is capable of showing such a link—Essential nature of the supply of services to allow the taxable person to carry out its economic activity (Council Directive 2006/112, Art. 168(a)) Harmonisation of fiscal legislation—Common system of value added tax—Deduction of input tax—Origin and scope of right to deduct—Goods and services used for the purposes of the taxable person’s taxable transactions—Supply by the taxable person of services consisting of the construction or improvement of a property belonging to a third party—Third party enjoying the results of those services free of charge—Services used by both the taxable person and by the third party in the context of their economic activities—Right to deduction—Conditions—Supply of input services being a component of the price of a taxed output transaction carried out by the taxable person—Limits—Supply of input services must be necessary for the transaction and proportionate to that purpose (Council Directive 2006/112, Art. 168(a))