ddrg/super_eurlex huggingface dataset:
Case C‑568/16

Criminal proceedings

against

Faiz Rasool

(Request for a preliminary ruling from the Amtsgericht Nürtingen)

(Reference for a preliminary ruling — Payment services — Directive 2007/64/EC — Article 3(e) and (o) — Article 4(3) — Annex — Point 2 — Scope — Operation of multifunctional terminals enabling cash withdrawals in gaming arcades — Consistency of the practice of the national authorities in bringing prosecutions — Confiscation of sums obtained by means of an unlawful activity — Charter of Fundamental Rights of the European Union — Article 17)

Summary — Judgment of the Court (Fifth Chamber), 22 March 2018

Approximation of laws — Payment services in the internal market — Directive 2007/64 — Payment service — Definition — Cash withdrawal service offered by a gaming arcade operator to customers by means of multifunctional terminals in the arcade — Not included

(European Parliament and Council Directive 2007/64, Art. 4(3), and Annex, point 2)

Article 4(3) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, read in conjunction with point 2 of the annex to the directive, must be interpreted as meaning that a cash withdrawal service offered by a gaming arcade operator to his customers by means of multifunctional terminals in those arcades is not a ‘payment service’ within the meaning of that directive, where the operator does not carry out any operation on those customers’ payment accounts and the activities he performs on that occasion are confined to making the terminals available and loading them with cash.

(see para. 39, operative part)
Article 2, point 3, of Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation must be interpreted as meaning that the concept of ‘insurance mediation’ includes work preparatory to the conclusion of an insurance contract, even in the absence of any intention on the part of the insurance intermediary concerned to conclude a genuine insurance contract.

As regards, firstly, the wording of Article 2, point 3, of Directive 2002/92, it follows from, in particular, the terms ‘activity’, ‘introducing’, ‘proposing’, ‘carrying out’ and ‘assisting’ that the concept of ‘insurance mediation’ is defined therein by reference only to the steps objectively taken by the insurance intermediary.

Next, as regards the context of that provision, Article 4(4) of Directive 2002/92 requires Member States to take all necessary measures to protect customers against the inability of the insurance intermediary to transfer the premium to the insurance undertaking. In the absence of any stipulation to the contrary, it must be held that that provision is intended to protect customers against any failure of the intermediary to carry out such a transfer, whatever the reason. Consequently, that protection must also cover the failure to transfer the premium to the insurance undertaking where an employee of the insurance intermediary company has appropriated the premium during the work preparatory to the conclusion of an insurance contract.

Finally, it should be recalled that that directive is intended in particular, as is apparent from recitals 8, 9 and 17 thereof, to enhance consumer protection in the area of insurance mediation. To this end, as set out in recital 9 thereof, any person or any institution distributing insurance products must be covered by that directive.

It follows from the foregoing that carrying out work preparatory to the conclusion of insurance contracts is an objective concept. It therefore constitutes an insurance mediation activity, within the meaning of Article 2, point 3, of that directive, whatever the intention of the insurance intermediary as regards the conclusion or not of those contracts.

It follows therefrom that the time of the lack of intention of the intermediary to conclude insurance contracts and the subjective perception of the clients concerned as regards that intermediary’s carrying out of work preparatory to the conclusion of insurance contracts are irrelevant for the purpose of classifying that activity as insurance mediation, within the meaning of that provision.

(see paras 40-45, operative part 1)
Competition – EU rules – Infringements – Committed intentionally or negligently – Meaning – Undertaking not capable of being unaware of the anti-competitive nature of its conduct – Agreement concluded between an originator company and a generic medicine undertaking – Included

(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 5(2), 23(2))

(see paras 97-99)
It is clear from the wording of Article 12 and Article 30(1) of Directive 2007/46 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles that they leave a margin of discretion to the Member States when determining the measures which are necessary to ensure that the vehicles are brought into conformity with the approved type.

By analogy, with Articles 29 and 32 of Directive 2007/46, under Articles 12 and 30 of the Framework Directive, where the authorities of the Member State concerned are informed by the manufacturer of the vehicles concerned of the existence of a deviation from conformity to the approved type, and that that deviation is justified by cogent and reliable objective evidence establishing the existence of a serious risk to human health and safety or to the environment submitted by that manufacturer, where the applicable requirements have been satisfied, those authorities are justified in not immediately requiring the recall and conversion of the vehicles concerned, or not immediately withdrawing type-approval concerned and in carrying out their own evaluation of the risks before deciding to impose, where necessary, that recall or conversion or the withdrawal of the type-approval. As provided for in Articles 29 and 32 of Directive 2007/46, it is nonetheless for that Member State to immediately inform the Commission and the other Member States of the serious risk of which it has been notified and, where necessary, of the measures suggested by the manufacturer in order to neutralise the risk concerned.

However, if at the end of that assessment, it appears that the serous risk relied on has not been established, that Member State must then take the necessary measures as soon as possible to ensure the conformity of the vehicles at issue with the approved type is re-established. The approval procedure established by Directive 2007/46, as stated in recital 2 thereof, is based on the principle of total harmonisation, the margin of discretion conferred on Member States by Articles 12 and 30 of thereof cannot permit them to evaluate themselves whether it is necessary to achieve that objective.

(see paras 69, 71-74)
New three-wheeled motor vehicle, rear wheel driven, for the transport of persons, with spark-ignition internal combustion reciprocating piston engine of a cylinder capacity of 998 cm3. The front wheels are approximately 130 cm apart. The vehicle does not have a differential. The vehicle has a motor car type steering system. It steers using the handlebar with two grips incorporating the controls. The vehicle has five forward gears and a reverse gear.

8703 21 10
15

In those circumstances, and having requested the parties to state their view concerning the consistency of the provisions of the Order of 27 April 1995 with Article 96(1) TFEU, the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 96(1) TFEU be interpreted as falling to be applied to rates and conditions imposed by a Member State on taxi service operators where: (a) the taxi journeys concerned are only exceptionally made across national borders, (b) a significant proportion of the customers of those taxis consists of EU nationals or residents who are not nationals or residents of the Member State in question, and (c) in the specific circumstances of the case, the taxi journeys at issue are, for the passenger, very often no more than one stage in a longer trip the final destination or point of departure of which is in an EU country other than the Member State in question? (2) Must Article 96(1) TFEU be interpreted as being applicable to operating conditions other than fare conditions and the criteria for obtaining authorisation to carry on the transport activity in question, such as, in this case, a prohibition preventing taxi operators from making available individual seats rather than the vehicle in its entirety, and a prohibition on those operators determining themselves the final destination of the journey that they are offering to customers, which has the effect of preventing those operators from grouping together customers who are travelling to the same final destination? (3) Must Article 96(1) TFEU be interpreted as prohibiting, unless authorised by the Commission, measures such as those referred to in the second question: (a) the general aim of which, among other objectives, is to protect taxi operators from competition from private hire vehicle companies and (b) the specific effect of which, in the particular circumstances of the case, is to protect coach service operators from competition from taxi operators? (4) Must Article 96(1) TFEU be interpreted as prohibiting, unless authorised by the Commission, a measure which prohibits taxi operators from touting for custom where the effect of that measure in the particular circumstances of the case is to reduce their capacity to attract customers away from a competing coach service?’
19

Paragraph 37(31) of that law provided: ‘For the purposes of online games of chance, a trustworthy operator of games of chance shall mean an operator of games of chance which is a transparent organisation within the meaning of Article 3(1)(1) of Law CXCVI of 2011 on national resources and (a) which has fulfilled all the obligations to declare and pay tax and parafiscal charges of more than the equivalent of HUF 500000 [(approximately EUR 1550)], registered by the State tax authority or by the tax authorities of the State in which the operator of games of chance is established or which has issued a licence for the activity of organising games of chance, without ever falling into arrears for more than 90 days in the fulfilment of those obligations; (b) against whose bank account the State tax authority which issued the licence for the activity of organising games of chance has never issued an order to recover a debt of more than HUF 500000 [(approximately EUR 1550)] and which, in the conduct of its business, has not been the subject, in the State which issued the licence for the activity of organising games of chance, of enforcement proceedings for an amount exceeding HUF 500000 [(approximately EUR 1550)]; (c) which has never, in the conduct of its business and in the context thereof, committed, in the State which issued the licence for the activity of organising games of chance, any infringement for which a fine exceeding the equivalent of HUF 5000000 [(approximately EUR 15500)] was imposed; (d) which has, for at least three years, carried on the activity of organising games of chance in the State which issued the licence for the activity of organising games of chance, and (e) which has fully complied with the rules concerning identification of players and the associated data processing, in the State which granted the licence to carry out an activity of organising games of chance, when it is subject to such an obligation. If the operator of games of chance holds or has held a licence for the activity of organising games of chance in several States, it must prove that the conditions laid down in paragraphs (a) to (e) are fulfilled for one of those States.’
25

It is in those circumstances that the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is it contrary to Article 138(2)[(a)] of the VAT Directive for provisions of national law [such as those contained in] Articles 1(e) and 14(b) of the RITI to require, for the grant of exemption from VAT on the supply for consideration of new means of transport, transported by the purchaser from national territory to another Member State, the purchaser to be established or domiciled in that Member State? (2) Is it contrary to Article 138(2)[(a)] of the VAT Directive for exemption from the tax in the Member State of commencement of the transport operation to be refused in circumstances in which the means of transport purchased has been transported to Spain, where it has been granted tourist registration, provisionally and subject to the [Spanish] fiscal rules … ? (3) Is it contrary to Article 138(2)[(a)] of the VAT Directive to require the payment of VAT by the [vendor] of a new means of transport in circumstances in which it has not been demonstrated whether or not the tourist registration rules have ceased to apply because of one of the situations provided for in [Spanish law], or whether VAT has been or will be paid by reason of the disapplication of those rules? (4) Is it contrary to Article 138(2)[(a)] of the VAT Directive and the principles of legal certainty, proportionality and protection of legitimate expectations to require VAT to be paid by the [vendor] of a new means of transport dispatched to another Member State, in circumstances in which: — the purchaser, before dispatch, informs the [vendor] that he resides in the Member State of destination and produces to him a document proving that he has been assigned a foreign national’s identity number in that Member State, indicating a residence in that State different from the residence stated by the purchaser himself; — the purchaser subsequently gives to the [vendor] documents proving that the means of transport purchased has undergone a technical inspection in the Member State of destination and that he has been granted a tourist registration in that State; — it has not been demonstrated that the [vendor] collaborated with the purchaser to avoid paying VAT; — the customs authorities have not raised any objection to the cancellation of the customs declaration for the vehicle on the basis of the documents in the possession of the [vendor]?’
16

In those circumstances, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) Must Article 183 of [the VAT Directive] be interpreted as precluding national legislation under which the period within which overpaid VAT must be refunded is to be extended up to the date on which the report drawn up following an investigation is delivered in the case where, in the course of a tax investigation procedure initiated within 30 days from the receipt of the application for a refund, a fine is imposed on the taxable person for non-compliance with an obligation? (2) Having regard to the principles of fiscal neutrality and proportionality, does Article 183 of [the VAT Directive] preclude national legislation under which, in the event of late payment of a sum, payment of default interest is excluded in the case where, in the context of an investigation concerning the refund of that sum, the taxable person was fined by the authority in connection with the obligation to cooperate, even though the investigation, which lasted several years, was significantly delayed for reasons which cannot principally be attributed to the taxable person? (3) Must Article 183 of [the VAT Directive] and the principle of effectiveness be interpreted as meaning that a claim for payment of interest in connection with tax withheld or not allocated contrary to EU law is a substantive right which flows directly from EU law itself, such that an infringement of EU law is sufficient for a right to interest to be claimed before the courts and other authorities of the Member States? (4) If, in the light of the answers given to the preceding questions, the referring court should conclude that the domestic legislation of the Member State is incompatible with Article 183 of the VAT Directive, would it be acting in accordance with EU law if it were to take the view that the refusal, in the decisions of the Member State’s authorities, to pay default interest was incompatible with Article 183 of the VAT Directive?’
20

In those circumstances, the Vrhovno sodišče (Supreme Court, Slovenia) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Does judicial protection under Article 27 of [the Dublin III Regulation] concern also the interpretation of the conditions of the criterion under Article 13(1), when one Member State has decided that it will not examine the application for international protection, and another Member State has already assumed responsibility for examining the applicant’s application on the same basis, and when the applicant challenges this? (2) Is the condition of irregular crossing under Article 13(1) of [the Dublin III Regulation] to be interpreted independently and autonomously, or rather in conjunction with Article 3(2) of Directive [2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third country nationals (OJ 2008 L 348, p. 98)] and Article 5 of [Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1)], which define irregular crossing of the border, and must that interpretation be applied in relation to Article 13(1) of [the Dublin III Regulation]? (3) In view of the answer to the second question, is the concept of irregular crossing under Article 13(1) of [the Dublin III Regulation] in the circumstances of the present case to be interpreted as meaning that there is no irregular crossing of the border where the public authorities of a Member State organise the crossing of the border with the aim of transit to another Member State …? (4) In the event that the answer to the third question should be in the affirmative, is Article 13(1) of [the Dublin III Regulation] consequently to be interpreted as prohibiting sending a national of a third State back to the [Member] State where he initially entered EU territory? (5) Is Article 27 of [the Dublin III Regulation] to be interpreted as meaning that the periods fixed by Article 13(1) and Article 29(2) [of that regulation] do not run when the applicant exercises the right to judicial protection, a fortiori when that also involves a question for a preliminary ruling, or when the national court is awaiting the answer of the Court of Justice of the European Union to such a question which has been submitted in another case? In the alternative, would time start to run in such a case, but the Member State responsible would not be entitled to refuse reception?’
24

In those circumstances, the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia) has decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the second paragraph of Article 176 of the VAT Directive to be interpreted as precluding compulsory removal from the VAT register, based on an amendment to the ZDDS, which entered into force on 1 January 2007, which removes the court-appointed liquidator’s right to decide that the legal person whose dissolution has been ordered by a court decision is to continue to be registered under the ZDDS until the date of its removal from the companies register, while the ZDDS provides, as a ground for compulsory removal from the VAT register, for the dissolution of a commercially active legal person, by reason of liquidation or otherwise? (2) Is the second paragraph of Article 176 of the VAT Directive to be interpreted as precluding compulsory removal from the VAT register, based on an amendment to the ZDDS, which entered into force on 1 January 2007, where, at the time of compulsory removal from the VAT register, the taxable person meets the conditions for compulsory re-registration in that register, the taxable person is party to current contracts and states that it has not ceased business and continues to carry on an economic activity, if that taxable person must actually pay the tax calculated and payable upon the compulsory registration in order to be entitled to deduct VAT input tax on available assets taxed upon removal from the register and available at the time of re-registration? If compulsory removal from the register under the circumstances set out is permissible, may entitlement to deduct input tax on assets taxed upon removal from the register, which are available on the re-registration in the VAT register, and with which the person effects or will effect taxable transactions, be made dependent on the actual payment of the tax to the exchequer or may the tax calculated upon removal from the register be set off against the amount of tax credit determined on re-registration for VAT for the purposes of the ZDDS, particularly as the tax is payable by a person in respect of whom entitlement to deduct input tax arises?’