ddrg/super_eurlex huggingface dataset:
Case C‑453/15

Criminal proceedings

against

A

and

B

(Request for a preliminary ruling from the Bundesgerichtshof)

(Reference for a preliminary ruling — Taxation — VAT — Directive 2006/112/EC — Article 56 — Place where services are supplied — Concept of ‘similar rights’ — Transfer of greenhouse gas emission allowances)

Summary — Judgment of the Court (Second Chamber), 8 December 2016

Harmonisation of fiscal legislation — Common system of value added tax — Supply of services — Determination of the point of reference for tax purposes — Transfers and assignments of copyrights, patents, licences, trade marks and similar rights — Concept of ‘similar rights’ — Greenhouse gas emission allowances — Included

(European Parliament and Council Directive 2003/87, Art. 3(a); Council Directive 2006/112, Art. 56(1)(a))

Article 56(1)(a) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the ‘similar rights’ mentioned in that provision include the greenhouse gas emission allowances defined in Article 3(a) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community.

The inclusion of greenhouse gas emission allowances in the ‘similar rights’ mentioned in Article 56(1)(a) of Directive 2006/112 corresponds to the purpose and logic of the directive. First, since the transfer of allowances has to be entered in the register provided for in Article 19 of Directive 2003/87, the identity of the transferee, the place where he has established his business or has a fixed establishment for which the transfer is effected, or the place where he has his permanent address or usually resides, and consequently also the country of destination of the transfer can be determined easily and with great certainty. Secondly, since the allowances transferred must in principle be used at the place where the transferee carries on his business, determining that place as the place where the service consisting in a transfer of allowances is supplied for tax purposes allows the supply to be taxed under the value added tax rules of the Member State in which the allowances are used.

(see paras 26-28, 30, operative part)
The criterion of ’support to the Government of Iran’ set out in Article 20(1)(c) of Decision 2010/413 concerning restrictive measures against Iran and repealing Common Position 2007/140, as amended by Decision 2012/635, and Article 23(2)(d) of Regulation No 267/2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 relates to support which may be material, logistical or financial.

The purpose behind the addition of that criterion was to target the relevant person or entity’s own activities which, even if they have no actual direct or indirect connection with nuclear proliferation, are nonetheless capable of encouraging it by providing the Government of Iran with resources or facilities of a material, financial or logistical nature which allow it to pursue proliferation activities.

Thus, Central Bank of Iran provides material, logistical and financial support to that State and, as a result, support to the Government of Iran allowing it to pursue such proliferation when it provides that Government with financial services such as the holding of accounts, the performance and conclusion of financial transactions or the purchase and sale of bonds.

(see paras 43-45)
The Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and the Common Customs Tariff, in the version resulting from Implementing Regulation No 1001/2013, must be interpreted as meaning that a turret system, which was imported for the production of armoured fighting vehicles and was indeed used subsequently for that purpose, comes under heading 8710 of that Combined Nomenclature if it is ‘principally’ intended for use on an armoured fighting vehicle, this being a matter for the national court to determine on the basis of the objective characteristics and properties of the turret system, without the end use to which it is put in the case at hand being determinant for the purpose of its classification. If that is not the case, that turret system must be classified, as a part or accessory of a ‘military weapon’, under subheading 9305 91 00 of the Combined Nomenclature.

(see paragraph 44 and operative part)
Case C‑11/15

Odvolací finanční ředitelství

v

Český rozhlas

(Request for a preliminary ruling from the Nejvyšší správní soud)

‛Reference for a preliminary ruling — Sixth Directive 77/388/EEC — Value added tax — Article 2(1) — Supply of services effected for consideration — Definition — Public broadcasting — Financing from a compulsory statutory fee’

Summary — Judgment of the Court (First Chamber), 22 June 2016

Harmonisation of fiscal legislation — Common system of value added tax — Supply of services effected for consideration — Definition — Public broadcasting funded by a compulsory statutory fee paid by owners or possessors of a radio receiver — Not included

(Council Directive 77/388, Art. 2(1))

Article 2(1) of Sixth Directive 77/338 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that public broadcasting activities, funded by a compulsory statutory charge paid by owners or possessors of a radio receiver and carried out by a radio broadcasting company created by law, do not constitute a supply of services ‘effected for consideration’ within the meaning of that provision and therefore fall outside the scope of that directive.

(see para. 36, operative part)
Articles 2(1), 2(2)(a) and 6(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation which excludes the taking into account of periods of apprenticeship and of employment completed by a civil servant before reaching the age of 18 for the purpose of granting a pension entitlement and the calculation of the amount of his retirement pension, in so far as that legislation seeks to guarantee, within a civil service retirement scheme, a uniform age for admission to that scheme and a uniform age for entitlement to the retirement benefits provided under that scheme.

Such national legislation provides for less favourable treatment for persons whose professional experience has, albeit only in part, been acquired before reaching the age of 18 as compared with those who have acquired experience of the same nature and of comparable length after reaching that age and therefore establishes a difference in treatment that is based directly on the criterion of age, within the meaning of Article 2(1) and Article 2(2)(a) of Directive 2000/78.

Nonetheless, that difference in treatment may be justified under Article 6(2) of Directive 2000/78, which applies to occupational social security schemes that cover the risks of old age and invalidity, but only those that are expressly referred to therein.

On the one hand, Directive 2000/78 does not define what is to be understood by an ‘occupational social security scheme’. A definition of that concept is, however, included in Article 2(1)(f) of Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

In that regard, the abovementioned retirement scheme for civil servants is a scheme which provides workers of a given occupational sector with benefits designed to replace the benefits provided for by statutory social security schemes within the meaning of Article 2(1)(f) of Directive 2006/54.

On the other hand, that national legislation constitutes an expression of the freedom enjoyed by the Member States under Article 6(2) of Directive 2000/78 to fix, in relation to occupational social security schemes, an age for admission to civil service retirement schemes or entitlement to retirement benefits which are paid under that scheme. The wording of that provision is such that it allows the Member States not only to fix different ages for employees or groups or categories of employees, but also to fix, within an occupational social security scheme, an age for admission or entitlement to retirement benefits.

(see paras 21, 25, 27, 28, 30, 32, operative part)
5.

Common foreign and security policy — Restrictive measures against Zimbabwe — Freezing of funds and economic resources — Action for annulment brought by a person forming part of the Government of Zimbabwe or linked to it and who is concerned by a decision to freeze funds — Burden of proof — Decision based on a set of indicia — Lawfulness — Conditions (Commission Regulation No 151/2012; Council Decisions 2012/97/CFSP and 2012/124/CFSP) (see paras 81, 82)
The first sentence of Article 28(2) of Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union must be interpreted as covering only judgments which have become final before the date specified by the Member State concerned.

That interpretation is supported by the definition of ‘judgment’ in Article 1(a) of the framework decision. In that connection, the fact that both Article 1(a) and Article 28(2) refer to the ‘final’ nature of the judgment concerned underlines the particular importance, for the purpose of the application of the latter provision, given to the unchallengeable nature of that judgment and, therefore, the date on which finality is acquired. Furthermore, since the definitions of ‘judgment’ and ‘issue’ of that judgment, in Article 28(2) of the Framework Decision 2008/909, must be given an independent and uniform interpretation in the EU, the scope of those definitions and, therefore, of that provision cannot depend either on the domestic criminal proceedings of the issuing Member State or that of the enforcing State. Therefore, an interpretation of Article 28(2) of Framework Decision 2008/909 according to which its application depends on the date on which a judgment is regarded as having been ‘issued’ within the meaning of the national law concerned, independently of the date on which it became final, must be excluded.

Finally, regarding the scheme and the objectives pursued by the legislation of which the relevant provision is part, it must be recalled, as the Advocate General observes in points 45 to 48 of his Opinion, that Article 28(2) of Framework Decision 2008/909 constitutes an exception to the general scheme of Article 28(1) thereof, which provides that requests for the enforcement of a judgment and enforcement of a sentence received after 5 December 2011 are to be governed by the rules adopted by Member States pursuant to that framework decision. As an exception to the general scheme, the first of those provisions must be strictly interpreted.

By limiting the number of cases which continue to be covered by legal instruments existing before the entry into force of Framework Decision 2008/909 and, therefore, by increasing the number of cases which fall within the rules adopted by the Member States in implementation of that framework decision, a strict interpretation of Article 28(2), to the effect that that provision covers only judgments which became final by 5 December 2011 at the latest, is the most appropriate in order to guarantee the objective pursued by that framework decision. As is clear from Article 3(1) thereof, that objective consists in enabling the Member States to recognise the judgments and enforce the sentences they contain, with a view to facilitating the social rehabilitation of a sentenced person.

(see paras 27-31, 33, operative part)
Clause 5(1) of the framework agreement on fixed-term work, which is set out in the annex to Council Directive 1999/70, concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation from being applied by the national courts of the Member State concerned in such a manner that, in the event of abuse resulting from the use of successive fixed-term employment contracts, a right to maintain the employment relationship is granted to persons employed by the authorities under an employment contract governed by the rules of employment law, but that right is not conferred, in general, on staff employed by those authorities under administrative law, unless there is another effective measure in the national law to penalise such abuses with regard to the latter staff, which it is for the national court to determine.

It is for the authorities of the Member State concerned to ensure that clause 5(1) of the framework agreement is complied with, by ensuring that workers who have experienced abuse resulting from the use of successive fixed-term employment contracts are not deterred, in the hope of continued public sector employment, from asserting before the national authorities, including the courts, the rights conferred upon them under national law which arise from the implementation by that law of all the preventive measures set out in clause 5(1) of the framework agreement.

More specifically, the referring court must satisfy itself that the penalties provided for by the national legislation can be applied to employers of all ‘fixed-term’ workers within the meaning of clause 3(1) of the framework agreement if those workers experience abuse arising from the use of successive contracts, regardless of how their contract is classified under domestic law.

To the extent that, in respect of staff employed in the public authorities under administrative law, there is no other equivalent and effective protective measure, the assimilation of that fixed-term staff with workers having non-permanent contracts of indefinite duration, in accordance with the existing national case-law, could therefore constitute a measure capable of penalising abuse resulting from use of fixed-term employment contracts and eliminating the consequences of infringement of the provisions of the framework agreement.

(see paras 51-54, operative part 1)
Article 101 TFEU, read in conjunction with Article 4(3) TEU, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which makes the fees of lawyers subject to a tariff which may be increased or decreased only by 12%, in respect of which the national courts merely check its strict application without being in a position, in exceptional circumstances, to derogate from the limits set by that tariff.

A Member State cannot be criticised, merely because the national courts are bound, when taxing the costs of lawyers, to comply with the provisions of national legislation, drafted and promulgated by that Member State in accordance with the ordinary regulatory procedure, for having delegated the power to draft that legislation or its implementation to the professional associations of lawyers.

Nor can that Member State be criticised for either requiring or encouraging the conclusion, by the professional associations of lawyers, of agreements contrary to Article 101 TFEU or for increasing the effects of such abuses or for requiring or encouraging abuses of a dominant position contrary to Article 102 TFEU.

(see paras 40-42, operative part 1)
Article 1(3)(b) of Directive 2000/13 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs must be interpreted as meaning that each of the individual portions of honey presented in the form of portion-cups closed by an aluminium seal and packed in cartons supplied to mass caterers constitutes a pre-packaged foodstuff where the mass caterers sell those portions separately or offer them for sale to the ultimate consumer as part of pre-prepared meals for an all-inclusive price.

In the first place, individual portions of honey, which, first, are intended to be offered as such to the ultimate consumer after the mass caterer to whom the carton was delivered has opened the carton and, second, are packed before being offered for sale despite being completely enclosed by their packaging, satisfy several of the conditions set out in that provision for being regarded as pre-packaged foodstuffs.

In the second place, it follows from the general scheme of Directive 2000/13 that the labelling obligation under Article 13(1) of the directive concerns foodstuffs intended to be offered for sale as such to the ultimate consumer and mass caterers. That situation may take the form of the separate sale of individual portions of honey to the final consumer in a mass catering establishment, such as a restaurant or a canteen. Such a situation also arises where those portions are offered for sale as part of a pre-prepared meal for an all-inclusive price, for instance as part of a set menu prepared in a mass catering establishment or as a component of a hotel buffet. That fixed price covers all of the goods and services needed in supplying that meal and therefore includes the various components of the meal, including, where relevant, individual portions of honey.

That interpretation of Article 1(3)(b) of Directive 2000/13 is supported by the purpose of the directive which aims to inform and protect the final consumer of foodstuffs, in particular as regards the nature, identity, properties, composition, quantity, durability, origin or provenance and method of manufacture or production of those products. The particular interest which the consumer has in the geographical characteristics of honey and full transparency in that regard necessitate that the country of origin in which the honey was harvested be included in the labelling. Such an indication therefore helps to enable the final consumer to make his choice in full knowledge of the facts.

(see paras 54, 55, 62-67, 70, 71, 82, operative part)
1.

Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Plea alleging distortion of the facts — Necessity of indicating precisely the evidence alleged to have been distorted and showing the errors of appraisal which led to that distortion (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) (see paras 21, 59)
Article 5(1) of Regulation No 1370/2007 on public passenger transport services by rail and by road must be interpreted as meaning that, in a contract award procedure for public passenger transport services by bus, Article 4(7) of that regulation remains applicable to that contract.

The second sentence of Article 5(1) of Regulation No 1370/2007 contains a derogation from the general rule established in the first sentence of Article 5(1) of that regulation that a contract for the provision of public passenger transport services by bus must in principle be awarded in accordance with the rules laid down in that regulation, and the exact scope of that derogation is then specified in the third sentence of Article 5(1) of that regulation setting out the non-application of Article 5(2) to (6) thereof. No other provision of Article 5 or of Regulation No 1370/2007 further broadens the scope of that derogation. It follows that, for the purposes of the award of a contract for public passenger transport services by bus, solely the provisions of Article 5(2) to (6) of Regulation No 1370/2007 are not to be applied, whereas the other provisions of that regulation remain applicable.

Moreover, in so far as both Article 4(7) of that regulation and Article 25 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1336/2013, contain rules on subcontracting, the view must be taken that the first provision constitutes a special rule with respect to the rules laid down in the second provision, and, as a lex specialis, takes precedence over the latter.

(see paras 36, 39-41, 47, 48, operative part 1)
Case C‑211/15 P

Orange

v

European Commission

‛Appeal — Competition — State aid — Aid granted by the French Republic to France Télécom — Reform of the arrangements for financing the retirement pensions of civil servants working for France Télécom — Reduction of the compensation to be paid to the State by France Télécom — Decision declaring the aid compatible with the internal market under certain conditions — Definition of aid — Definition of economic advantage — Selective nature — Adverse effect on competition — Distortion of the facts — No statement of reasons — Substitution of grounds)’

Summary — Judgment of the Court (First Chamber), 26 October 2016

State aid — Concept — Selective nature of the measure — Ad hoc measure concerning a single undertaking — Included — Need to compare the beneficiary with other operators in a comparable factual and legal situation having regard to the objective pursued by the measure — None

State aid — Concept — Grant of an advantage to the beneficiaries — National legislation which merely prevents charges which, in a normal situation, would not exist — Precluded — Conditions

National legislation which offers an advantage neither to shareholders of a company nor to the company itself, in so far as it merely prevents its budget being burdened with a charge which, in a normal situation, would not have existed and therefore simply regulates an exceptional right without seeking to reduce a charge which that company would normally have had to bear cannot be regarded as an advantage within the meaning of Article 107(1) TFEU. However, that rule is applicable only in cases involving dual derogation arrangements, that is to say arrangements whereby, in order to prevent the budget of the beneficiary of the measure being burdened with a charge which, in a normal situation, would not have existed, provision is made for a derogation intended to neutralise a previous derogation from the general system in place. (see paras 25, 27)

Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects. (see para. 38)

See the text of the decision. (see paras 53, 54)