ddrg/super_eurlex huggingface dataset:
Article 2(1)(c) of the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the predetermined amount received by an economic operator where a contract for the supply of services with a minimum commitment period is terminated early by its customer, or for a reason attributable to the customer, which corresponds to the amount that the operator would have received during that period in the absence of such termination — a matter which it is for the referring court to determine — must be regarded as the remuneration for a supply of services for consideration and subject, as such, to VAT.

The fact that the objective of the lump sum is to discourage customers from not observing the minimum commitment period and to make good the damage that the operator suffers in the event of failure to observe that period, the fact that the remuneration received by a commercial agent for the conclusion of contracts stipulating a minimum period of employment is higher than that provided for under contracts which do not stipulate such a period, and the fact that the amount invoiced is classified under national law as a penalty, are not decisive for classifying the amount predetermined in the services contract which the customer is liable to pay in the event of its early termination.

In this respect, it should be noted that the concept of ‘supply of services’ within the meaning of the VAT Directive must be interpreted without regard to the purpose or results of the transactions concerned (see, to that effect, judgment of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 41).

On the other hand, as has been held in paragraph of 43 the present judgment, it is essential to take into account the economic reality of the transaction at issue, which constitutes a fundamental criterion for the application of the common system of VAT (see, to that effect, judgment of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraphs 42, 48 and 49 and the case-law cited).

The Court of Justice has consistently held that the terms of a provision of EU law which makes no express reference to the law of the Member States must normally be given an autonomous and uniform interpretation (see, to that effect, judgment of 16 November 2017, Kozuba Premium Selection, C‑308/16, EU:C:2017:869, paragraph 38 and the case-law cited).

(see paras 60, 61, 67, 70, operative part 2)
In principle, a party retains its interest in continuing an action for annulment where that action may constitute the basis of an action for damages. The possibility of an action for damages suffices to justify such an interest in bringing proceedings, in so far as that interest is not hypothetical. An interest in bringing proceedings could also arise from any action before the national courts in the context of which the possible annulment of the contested act before the EU Courts is capable of benefiting the applicant.

In that respect, as regards, first, an action brought before the EU Courts against a Commission decision finding that State aid consisting of the injection of capital into a national bank is compatible with EU law, and, second, an action before a national court seeking a declaration that the decision to put that bank into resolution is incompatible with national law, given the inextricable links between those decisions, which demonstrate, in particular, that the State aid at issue was granted in the context of the resolution of the relevant bank, it must be held that the EU Courts are not permitted to conclude, without substituting themselves for the national courts for the purposes of the assessment of the merits of the action for annulment of that resolution decision, that, because the subject matter of the latter action was not the same as that of the action brought before the EU Courts, a possible annulment of the contested decision could not in any way affect the national courts’ assessment of the action brought before them.

It is not for the EU Courts, for the purposes of determining an interest in bringing proceedings before them, to assess the likelihood that an action brought before national courts under national law is well founded and, therefore, to substitute themselves for those courts in making such an assessment. It is, by contrast, necessary, but sufficient, that, by its outcome, the action for annulment brought before the EU Courts would be capable of benefiting the party which brought it.

(see paras 42-44, 52, 55, 56)
Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the interpretation of a contract term — Not included / precluded

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 169)

(see para. 23)
4

Entitled ‘[f]ramework agreements’ Article 32 of that directive provides, inter alia: ‘… 2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53. Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement. When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3. … 4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators that satisfy the selection criteria and/or of admissible tenders that meet the award criteria. Contracts based on framework agreements concluded with several economic operators may be awarded either: – by application of the terms laid down in the framework agreement without reopening competition, or – where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure: (a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract; (b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders; (c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired; (d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.’
11

Article 14 of Directive 2010/24, entitled ‘Disputes’, provides: ‘1. Disputes concerning the claim, the initial instrument permitting enforcement in the applicant Member State or the uniform instrument permitting enforcement in the requested Member State and disputes concerning the validity of a notification made by a competent authority of the applicant Member State shall fall within the competence of the competent bodies of the applicant Member State. If, in the course of the recovery procedure, the claim, the initial instrument permitting enforcement in the applicant Member State or the uniform instrument permitting enforcement in the requested Member State is contested by an interested party, the requested authority shall inform that party that such an action must be brought by the latter before the competent body of the applicant Member State in accordance with the laws in force there. 2. Disputes concerning the enforcement measures taken in the requested Member State or concerning the validity of a notification made by a competent authority of the requested Member State shall be brought before the competent body of that Member State in accordance with its laws and regulations. 3. Where an action as referred to in paragraph 1 has been brought before the competent body of the applicant Member State, the applicant authority shall inform the requested authority thereof and shall indicate the extent to which the claim is not contested. 4. As soon as the requested authority has received the information referred to in paragraph 3, either from the applicant authority or from the interested party, it shall suspend the enforcement procedure, as far as the contested part of the claim is concerned, pending the decision of the body competent in the matter, unless the applicant authority requests otherwise in accordance with the third subparagraph of this paragraph. At the request of the applicant authority, or where otherwise deemed to be necessary by the requested authority, … the requested authority may take precautionary measures to guarantee recovery in so far as the laws or regulations in force in the requested Member State allow such action. The applicant authority may, in accordance with the laws, regulations and administrative practices in force in the applicant Member State, ask the requested authority to recover a contested claim or the contested part of a claim, in so far as the relevant laws, regulations and administrative practices in force in the requested Member State allow such action. Any such request shall be reasoned. If the result of contestation is subsequently favourable to the debtor, the applicant authority shall be liable for reimbursing any sums recovered, together with any compensation due, in accordance with the laws in force in the requested Member State. … ’
6

Article 6 of the Habitats Directive states: ‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites. 2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive. 3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. 4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’
12

Article 127 of the Walloon Code states: ‘(1) … [planning] consent shall be granted by the Government or a delegated official: … 8° when it concerns measures and works located within an urban land consolidation area; the area shall be determined by the Government by way of order, either on its own initiative or following a proposal from the municipal council or from the delegated official; unless the municipal council has proposed the area, it shall send its decision within 45 days from the request of the delegated official; in the absence of a decision, the decision shall be deemed to be favourable; in the event of an unfavourable decision, the procedure shall be discontinued; the area shall cover all urban development plans for renovation and development of urban functions requiring the creation, modification, extension, removal or overhang of roads and public spaces; the special notice measures and consultation with any municipal commission, in accordance with Article 4, shall first apply to the draft decision in relation to the area and the assessment of its effects in regard to the urban development plan; the council of the mayor and aldermen shall send its decision within 70 days of receipt of the request of the delegated official; in the absence of a decision, the decision shall be deemed to be favourable; once the project has been completed, or on a proposal from the municipal council or the delegated official, the Government shall repeal or amend the area; any order determining, amending or repealing an area shall be published in the Moniteur belge; … (3) Provided that the request has already been subject to the special rules on publicity determined by the Government and to the mandatory consultation referred to in point 3° of the first paragraph of Article 4, where the request concerns the measures and works mentioned in points 1°, 2°, 4°, 5°, 7° and 8° of the first paragraph of Article 127(1) which respect, structure or change the natural contours of the landscape, the permission may be granted in a departure from the sectoral plan, a municipal development plan, local planning rules or an alignment plan.’
23

The Consiglio di Stato (Council of State) finds that the apparatus concerned falls within the scope of Directive 1999/5 on the ground that it is radio equipment as referred to in Article 10(4) of that directive. It states that, according to Article 5 of that directive, the essential requirements referred to in Article 3 thereof are presumed to be fulfilled for goods meeting the harmonised standards. It also notes that there is a seeming inconsistency in Directive 1999/5 concerning the compliance of radio equipment with the essential requirements set out in Article 3 of that directive. According to the second subparagraph of Article 12(1) of that directive, apparatus complying with all the essential requirements is to bear the EC conformity marking referred to in Annex VII thereto, but that provision also states that, where the procedure identified in Annex III to that directive is used, that marking must be accompanied by the identification number of the notified body. On the other hand, according to the Consiglio di Stato (Council of State), it is apparent from Annex III to that directive that, where the essential radio test suites to be carried out have been defined in the harmonised standards, it is not necessary for the CE marking to be accompanied by the identification number of the notified body.
4

The general rules for the interpretation of the CN, which are in Part One, Section I, A, of the CN, state in particular: ‘Classification of goods in the [CN] shall be governed by the following principles: 1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. … 6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’
42

The Italian Government essentially notes, first of all, that operatic and orchestral foundations such as the defendant in the main proceedings are comparable to public entities notwithstanding the fact that they take the form of legal persons governed by private law. It then relies on the fact that employment contracts in the sector of activity of those foundations are traditionally concluded for a fixed period and, in particular, emphasises in that context the constitutionally protected objective of the development of Italian culture and the safeguarding of Italian historic and artistic heritage. It also emphasises characteristics peculiar to that sector, in that each artistic performance is of a particular nature and employment contracts concluded for the purpose of an artistic performance must be distinguished from those concluded for the purpose of previous artistic performances. Lastly, the Italian Government explains that the statutory prohibition on transforming fixed-term employment contracts into employment relationships of indefinite duration in that sector is based on two considerations closely linked to the inherently public nature of entities such as the defendant in the main proceedings, one relating to the need to contain public expenditure linked to the financing of such entities, and the other seeking to avoid circumvention of the rule that the recruitment of workers for an indefinite duration is made subject to the organisation of competitions. The Italian Government takes the view that adequate protection of workers is guaranteed by the engagement of the liability of directors of operatic and orchestral foundations when they have recourse to contracts contrary to the applicable legal provisions.
7

Article 32 of Directive 2004/18, which concerns ‘framework agreements’, provides: ‘1. Member States may provide that contracting authorities may conclude framework agreements. 2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53. Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement. When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3. The term of a framework agreement may not exceed four years, save in exceptional cases duly justified in particular by the subject of the framework agreement. Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition. 3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement. For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary. 4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria. Contracts based on framework agreements concluded with several economic operators may be awarded either: – by application of the terms laid down in the framework agreement without reopening competition, or – where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure: …’
‘(1)

For the purposes of classifying the aid in question (as “existing” and, therefore, not “new” aid), is Article 1(b)(v) of Regulation [No 659/1999], according to which “aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation”, applicable and, if so, under what conditions; or is the principle (formally different in scope from that of the abovementioned substantive law provision) established by the General Court in its judgment of 15 June 2000, Alzetta and Others v Commission (T‑298/97, T‑312/97, T‑313/97, T‑315/97, T‑600/97 to T‑607/97, T‑1/98, T‑3/98 to T‑6/98 and T‑23/98, EU:T:2000:151, paragraph 143) and confirmed, by the ruling, of interest in the present case, of the Court of Justice in its judgment of 29 April 2004, Italy v Commission (C‑298/00 P, EU:C:2004:240, paragraphs 66 to 69) — according to which “... a system of aid established in a market that was initially closed to competition must, when that market is liberalised, be regarded as an existing aid system, since at the time of its establishment it did not come within the scope of Article 92(1) of the EEC Treaty [subsequently Article 87(1) EC, now Article 107(1) TFEU], which, having regard to the requirements set out in that provision regarding effect on trade between Member States and repercussions on competition, applies only to sectors open to competition” — applicable and, if so, under what conditions?