ddrg/super_eurlex huggingface dataset:
2.

If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of the OECD Model Tax Convention, as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, while seeking information concerning bank accounts and financial assets which are unspecified but which are defined by criteria concerning, first, the fact that they are owned by an identified holder of information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their relationship with the identified taxpayer concerned?
(1)

Infringement of Regulations No 320/2006 and No 968/2006. Infringement of Judgment of the Court of Justice of 14 November 2013, SFIR and Others, C-187/12 to C-189/12 By its first ground of appeal, the appellant takes issue with the judgment under appeal in so far as it wrongly identified the time at which it was necessary to examine whether the silos kept in the sugar-beet factories receiving aid did or did not have the characteristics of a ‘production facility’ and whether or not it was lawful to maintain them in cases in which applications for financial aid had been made for the total dismantling of the facilities.
Reference for a preliminary ruling from High Court (Ireland) made on 23 April 2019 — KS, MHK v The International Protection Appeals Tribunal, the Minister for Justice and Equality, Ireland and the Attorney General

(Case C-322/19)

(2019/C 220/27)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicants: KS, MHK

Defendants: The International Protection Appeals Tribunal, the Minister for Justice and Equality, Ireland and the Attorney General

Questions referred

1. Where in interpreting one instrument of EU law that applies in a particular member state an instrument not applying to that member state is adopted at the same time, may regard be had to the latter instrument in interpreting the former instrument?

2. Does Art. 15 of the Reception Conditions Directive (Recast) 2013/33/EU (1) apply to a person in respect of whom a transfer decision under the Dublin III Regulation, Regulation (EU) No. 604/2013 (2), has been made?

3. Is a member state in implementing Art. 15 of the Reception Conditions Directive (Recast)) 2013/33/EU entitled to adopt a general measure that in effect attributes to applicants liable for transfer under the Dublin III Regulation, Regulation (EU) No. 604/2013, any delays on or after the making of a transfer decision?

4. Where an applicant leaves a member state having failed to seek international protection there and travels to another member state where he or she makes an application for international protection and becomes subject to a decision under the Dublin III Regulation, Regulation (EU) No. 604/2013, transferring him or her back to the first member state, can the consequent delay in dealing with the application for protection be attributed to the applicant for the purposes of Art. 15 of the Reception Conditions Directive (Recast)) 2013/33/EU?

5. Where an applicant is liable to transfer to another member state under the Dublin III Regulation, Regulation (EU) No. 604/2013, but that transfer is delayed due to judicial review proceedings taken by the applicant which have the consequence of suspending the transfer pursuant to a stay ordered by the court, can the consequent delay in dealing with the application for international protection be attributed to the applicant for the purposes of Art. 15 of the Reception Conditions Directive (Recast)) 2013/33/EU, either generally or, in particular, where it may be determined in those proceedings that the judicial review is unfounded, manifestly or otherwise, or is an abuse of process?

(1) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, OJ 2013, L 180, p. 96

(2) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, OJ 2013, L 180, p. 31
Request for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 26 February 2019 — Flightright GmbH v Eurowings GmbH

(Case C-180/19)

(2019/C 246/04)

Language of the case: German

Referring court

Amtsgericht Düsseldorf

Parties to the main proceedings

Applicant: Flightright GmbH

Defendant: Eurowings GmbH

Questions referred

Must Article 7(1) of Regulation (EC) No 261/2004 (1) be interpreted as meaning that the relevant distance for the payment of compensation is to be calculated by reference to the entire journey?

Must (assuming that the regulation is applicable to the section of the journey concerned) the concept of ‘flight’ then be interpreted as meaning that, in the case of reservations where air passengers reach their final destination only with an intermediate stop and possibly a transfer to another aircraft, it is only the section on which the delay has actually occurred that is meant, or is ‘flight’ to be interpreted in such a case as meaning that the entire journey from the first point of departure to the final destination is relevant for the distance?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
1.

Must Article 6(1) of Directive 93/13/EEC (1) be interpreted as meaning that, after a term establishing the mechanism for determining the variable rate of interest by the formula ‘fixed margin and the benchmark interest applied by a bank on the basis of non-transparent criteria’ has been found to be unfair in connection with a credit agreement applying a fixed interest rate limited to the first year and a variable rate for the subsequent years, in accordance with the above formula, the national court may vary the agreement by imposing a method for calculating the variable rate of interest on the basis of transparent benchmarks (LIBOR/EURIBOR) and the bank’s fixed margin, in the light of the facts contained in the credit agreement, for the purposes of ensuring better consumer protection?
1.

Is there a ‘contract for pecuniary interest’ as part of a public contract within the meaning of Article 2(1)(5) of Directive 2014/24, (1) where the contracting authority is not required to provide any consideration but, by performing the public contract, the economic operator obtains access to a new market and references?
Appeal brought on 6 June 2019 by Pometon SpA against the judgment delivered by the General Court (Third Chamber, Extended Composition) on 28 March 2019 in Case T-433/16, Pometon v Commission

(Case C-440/19 P)

(2019/C 255/37)

Language of the case: Italian

Parties

Appellant: Pometon SpA (represented by: E. Fabrizi, V. Veneziano and A. Molinaro, lawyers)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

principally, set aside the judgment under appeal in so far as it rejected the pleas in law seeking annulment of the contested decision in its entirety and, consequently, annul the contested decision;

in the alternative:

— set aside the judgment under appeal in so far as the General Court unfairly found that Pometon’s alleged participation in the alleged cartel had not been interrupted during the period from 18 November 2005 to 20 March 2007 and, accordingly, in the exercise of its unlimited jurisdiction, reduce the financial penalty imposed on Pometon;

— in any event, in the exercise of its unlimited jurisdiction, reduce the financial penalty imposed on Pometon on account of the General Court having failed to observe the principle of equal treatment;

in any event, order the Commission to pay the appellant’s legal fees and any other costs and charges connected with the present proceedings and the proceedings before the General Court.

Grounds of appeal and main arguments

In support of the appeal, the appellant relies on four grounds of appeal.

1. First ground of appeal: The General Court misapplied fundamental principles of EU law, namely the principle of the presumption of innocence and the principle of a fair trial, by failing to criticise the Commission’s failure to observe those fundamental principles.

2. Second ground of appeal: The General Court failed to observe the principles governing the burden of proof and failed to apply the principle of the presumption of innocence when it confirmed the Commission’s findings that Pometon had taken part in the alleged cartel. It also gave contradictory and/or insufficient reasoning in that regard. The General Court found the appellant culpable on the basis of assumptions and ‘likelihoods’, indicating in quite generic terms the documents on which those assumptions were based.

3. Third ground of appeal: The General Court misapplied the principles governing the burden of proof and failed to apply the principle of the presumption of innocence when it held that the Commission had demonstrated to the requisite legal standard that Pometon had not interrupted its participation in the infringement during the (approximately) 16-month period from 18 November 2005 to 20 March 2007, even though, for that period, it did not have evidence of collusive contact. It also gave contradictory and/or insufficient reasoning in that regard.
Appeal brought on 24 May 2019 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 20 March 2019 in Case T-237/17, Spain v Commission

(Case C-406/19 P)

(2019/C 280/33)

Language of the case: Spanish

Parties

Appellant: European Commission (represented by: F. Castillo de la Torre and J. Aquilina, acting as agents)

Other party to the proceedings: Kingdom of Spain

Form of order sought

The Commission claims that the Court should set aside point 1 of the operative part of the judgment under appeal and dismiss the action at first instance or, alternatively, refer the case back to the General Court.

Single ground of appeal

The General Court erred in law in its allocation of the burden of proof in the context of the application of flat-rate corrections pursuant to Article 52(2) of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008. (1)

(1) OJ 2013 L 347, p. 549.
Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 19 June 2019 — Criminal proceedings against QR

(Case C-467/19)

(2019/C 280/40)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Parties to the main proceedings

QR

Question referred

Is case-law such as that at issue, which concerns the national law regarding the approval by the court of an agreement on the imposition of a negotiated penalty concluded between the prosecution and the defence, which provides for the consent of the other persons charged as a condition for the approval of such an agreement, and that that consent is required only during the trial stage of the proceedings, consistent with Article 7(4) of Directive 2016/343, (1) with Article 47 and Article 52 of the Charter, and with the principles of effectiveness and equality?

(1) Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings OJ 2016 L 65, p. 1.
1.

Are Article 1(2) and Article 4(2) of Directive 93/13/EEC, (1) as interpreted in Case C-186/16, Andriciuc and Others, to be interpreted as meaning that, where the contract contains a term relating to exchange rate risk that reflects a provision of national law, national courts are required to examine as a first priority the relevance of the exclusion laid down in Article 1(2) of the directive, or instead the trader’s compliance with the obligation to provide information governed by Article 4(2) of the directive, without first assessing the relevance of the provisions of Article 1(2) of the directive?
Appeal brought on 30 April 2019 by Fabio De Masi and Yanis Varoufakis against the judgment of the Court (Second Chamber) delivered on 12 March 2019 in Case T-798/17, Fabio De Masi, Yanis Varoufakis v European Central Bank (ECB)

(Case C-342/19 P)

(2019/C 280/28)

Language of the case: German

Parties

Appellants: Fabio de Masi, Yanis Varoufakis (represented by: Professor Dr. A. Fischer-Lescano, University professor)

Other party to the proceedings: European Central Bank

Form of order sought

The appellants claim that the Court should:

1. Set aside in its entirety the judgment in Case T-798/17 and uphold the application at first instance.

2. Order the respondent to pay the costs of the dispute in accordance with Article 184 in conjunction with Article 137 et seq. of the Rules of Procedure of the Court of Justice.

Pleas in law and main arguments

At first instance, the appellants sought a declaration of invalidity under Article 263(4) TFEU of the decision of the ECB of 16 October 2017 by which access to the document of 23 April 2015 with the title ‘Answers to the question of the interpretation of Article 14.4 of the Protocol on the Statute of the ESCB and of the ECB’ was refused to them.

In support of the first head of claim, the appellants put forward four grounds:

1. Failure to have regard for the primary law principle of transparency laid down in Article 15(1) TFEU, Article 10(3) TEU and Article 298(1) TFEU as well as of Article 42 of the Charter of Fundamental Rights of the European Union. The judgment under appeal disregards the fact that the requirement for transparency derives not only from secondary law, but that that secondary law must be interpreted in accordance with the transparency requirement under primary law. As a result, the Court unlawfully withdraws judicial review of the transparency requirement.

2. Failure to have regard for the importance of the obligation to state reasons and the corresponding standards developed by the Court of Justice of the European Union (CJEU). The judgment of the Court fails to have regard for the fact that the contested decision of the ECB entirely fails to set out the specific prejudice to the ECB.

3. Failure to have regard for the connection between Article 4(3) of Decision 2004/258/EC (1) (Transparency exceptions: opinions for internal use) and Article 4(2) of that decision (Transparency exceptions: legal communications). The Court fails to have regard for the lex specialis nature of Article 4(2) of the abovementioned decision in relation to legal opinions and the fact that Article 4(3) of that decision is not applicable to abstract legal advice.

4. The judgment under appeal in general unlawfully denies an overriding public interest in the publication of the document for the purposes of Article 4(3) of the abovementioned decision. The application for costs is made in accordance with Article 184 in conjunction with Article 137 et seq. of the Rules of Procedure of the Court of Justice.

(1) Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42).
5.

If the answer to the fourth question is negative, that is to say that harm of a level other than one leading to the habitat in the individual area being assessed in order for the prohibition to be applied, is the assessment thus to be made on any of the following scales or at any of these levels: a. a certain geographically restricted part of the population as defined under (a), for example within the boundaries of the region, the Member State or the European Union; b. the local population concerned (biologically isolated from other populations of the species); c. the meta-population concerned; d. the whole population of the species within the relevant biogeographical regional section of the species’ range? Questions 2 and 4 posed by the mark- och miljödomstolen (Land and Environment Court, Sweden) include the question of whether the strict protection in the directives ceases to be applicable to species for which the directive’s objective (favourable conservation status) has been achieved.
2.

Do the principles of neutrality, proportionality and equivalence preclude the exercise of the right to deduct VAT and corporation tax in the case of a company the conduct of which with regard to fiscal matters is beyond reproach and which has been denied the right to deduct corporation tax on account of the fiscal conduct of its suppliers, which is alleged to be improper on the basis of factors such as a lack of human resources or a lack of means of transport, in the case where, in addition, the tax authority has adduced no evidence of any activity that suggests fiscal and/or criminal liability on the part of those suppliers?
A.

1. Must Article 47 of the Charter of Fundamental Rights of the European Union (‘Article 47 of the Charter’) and, by implication, the consumer’s right to an effective legal remedy be interpreted as precluding national legislation, such as Article 107(2) of the Občianský zákonník (Civil Code of Slovakia) on the limitation of the consumer’s right by a statutory three-year limitation period, in accordance with which the consumer’s right to reimbursement which arises from an unfair contractual term may become time-barred even where the consumer is not in a position to evaluate the unfair contractual term and the limitation period starts even without the consumer being aware that the contractual term is unfair? 2. In the event that, despite a lack of awareness on the part of the consumer, the legislation which imposes an statutory limitation period of three years on the consumer’s right is consistent with Article 47 of the Charter and the principle of effectiveness, the national court then asks the following: Is a national practice contrary to Article 47 of the Charter and the principle of effectiveness if, in accordance with that practice, the burden of proof falls on the consumer, who must prove in legal proceedings that the persons acting on behalf of the creditor were aware of the fact that the creditor was infringing the consumer’s rights, in the present case that awareness consisting in the knowledge that, by failing to indicate the precise annual percentage rate of charge (APR), the creditor was infringing a legal provision, and must also prove awareness of the fact that, in such circumstances, the loan was non-interest bearing and, by receiving payments of interest, the creditor obtained unjust enrichment? 3. In the event that question A.2 is answered in the negative, on the part of which persons, among the directors, the shareholders and the commercial representatives of the creditor, must the consumer prove awareness of the matters referred to in question A.2? 4. In the event that question A.2 is answered in the negative, what degree of awareness must be shown in order to prove the supplier’s intention to infringe the relevant financial sector rules?
2.

If Question 1 is to be answered in the affirmative: Does the commencement of the supply of digital content by the trader to the consumer lead to the loss of the consumer’s right of withdrawal, as provided for in Article 16(m) of the Directive, even in the case where, contrary to Article 8(7) of the Directive, the trader has not sent beforehand to the consumer confirmation of the contract concluded together with the information referred to in that latter provision? If the consumer’s right of withdrawal continues in existence in that event: Must the consumer be provided with information to that effect beforehand, in accordance with Article 6(1)(k) of the Directive?
Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 22 May 2019 — Autorità per le Garanzie nelle Comunicazioni v BT Italia SpA and Others

(Case C-399/19)

(2019/C 312/06)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Autorità per le Garanzie nelle Comunicazioni

Respondents: BT Italia SpA, Basictel SpA, BT Enia Telecomunicazioni SpA, Telecom Italia SpA, PosteMobile SpA and Vodafone Italia SpA

Questions referred

1. Does Article 12(1)(a) of Directive 2002/20/EC (1) preclude national legislation which imposes on undertakings authorised under that directive the total administrative costs incurred by the national regulatory authority in organising and carrying out all the tasks, including regulatory, supervisory, dispute-resolution and sanctioning tasks, assigned to it under the European framework for electronic communications (laid down in Directives 2002/19/EC, (2) 2002/20/EC, 2002/21/EC (3) and 2002/22/EC), (4) or are the activities mentioned in Article 12(1)(a) of Directive 2002/20/EC co-extensive with the ‘ex ante regulatory activities’ performed by the national regulatory authority?

2. Is Article 12(2) of Directive 2002/20/EC to be interpreted as meaning that the yearly overview of the administrative costs of the national regulatory authority and of the charges levied (a) may be published after the end of the financial year, in accordance with national laws on public accounting, in which the administrative charges have been levied and (b) permits the national regulatory authority to make the ‘appropriate adjustments’ even with reference to financial years that are not immediately consecutive?

(1) Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21).

(2) Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7).

(3) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).

(4) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).
Request for a preliminary ruling from the Krajský soud v Ostravě (Czech Republic) lodged on 9 July 2019 — ARMOSTAV MÍSTEK s.r.o. v Odvolací finanční ředitelství

(Case C-520/19)

(2019/C 328/25)

Language of the case: Czech

Referring court

Krajský soud v Ostravě

Parties to the main proceedings

Applicant: ARMOSTAV MÍSTEK s.r.o.

Defendant: Odvolací finanční ředitelství

Question referred

Does the existence of express national legislation relating to [joint and several] liability for missing tax in a fraudulent chain preclude tax administration authorities from refusing the person held liable under that legislation the right to deduct value added tax in accordance with the case-law of the Court of Justice of the European Union on VAT fraud? Is such a practice in that situation precluded by Article 17(1), Article 20, Article 52(1), Article 52(6), and Article 54 of the Charter of Fundamental Rights of the European Union?