larimo/cjeu-paragraph-retrieval huggingface dataset:
BUPA Hospitals Ltd and Goldsborough Developments Ltd v Commissioners of Customs & Excise.
Date: 2006-02-21
42. In order to provide a useful reply to the court which has referred to it a question for a preliminary ruling, the Court may be required to take into consideration rules of Community law to which the national court did not refer in its question (see, to that effect, in particular Case C-60/03 Wolff & Müller  [2004] ECR I-9553, paragraph 24, and Case C-153/03 Weide  [2005] ECR I-0000, paragraph 25).
45. The second subparagraph of Article 10(2) of the Sixth Directive, according to which, where payments are made on account before the goods are delivered or the services are performed, VAT becomes chargeable on receipt of payment and on the amount received, constitutes a derogation from the rule laid down in the first subparagraph of that provision and, as such, must be interpreted strictly.
48. The second subparagraph of Article 10(2) departs from that chronological order by providing that, where a payment is to be made on account, the VAT becomes chargeable without the supply having yet taken place. In order for the tax to become chargeable in such a situation, all the relevant information concerning the chargeable event, namely the future delivery or future performance, must already be known and therefore, in particular, as the Advocate General noted in point 100 of his Opinion, when the payment on account is made the goods or services must be precisely identified.
49. That conclusion is, moreover, endorsed by the explanatory memorandum to the proposal for the Sixth Directive ( Bulletin of the European Communities , supplement 11/73, p. 13) in which the Commission observes that ‘when payments on account are received prior to the chargeable event, receipt of these amounts gives rise to a charge to tax, since the parties to the transaction in this way demonstrate their intention that all the financial consequences of the chargeable event should arise in advance’.
50. In that connection, it must also be borne in mind that it is the supplies of goods or services which are subject to VAT, rather than payments made by way of consideration for such supplies (see Case C-108/99 Cantor Fitzgerald International  [2001] ECR I-7257, paragraph 17). A fortiori, payments on account of supplies of goods or services that have not yet been clearly identified cannot be subject to VAT.
University of Huddersfield Higher Education Corporation v Commissioners of Customs & Excise.
Date: 2006-02-21
40. It must be remembered first of all that the Sixth Directive establishes a common system of VAT based, inter alia, on a uniform definition of taxable transactions (Case C-305/01 MGK-Kraftfahrzeuge-Factoring  [2003] ECR I-6729, paragraph 38).
43. It is clear from the case-law of the Court that that term covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property (see, in particular, Case C-320/88 Shipping and Forwarding Enterprise Safe  [1990] ECR I-285, paragraph 7, and Case C-25/03 HE  [2005] ECR I-3123, paragraph 64).
46. Finally, the term ‘economic activity’ is defined in Article 4(2) of the Sixth Directive as comprising ‘all’ activities of producers, traders and persons supplying services and, according to the case-law, it includes all stages of production, distribution and the provision of services (see, in particular, Case C-186/89 Van Tiem  [1990] ECR I-4363, paragraph 17, and MGK-Kraftfahrzeuge-Factoring , paragraph 42).
47. As the Court held in paragraph 26 of its judgment in Case C-260/98 Commission  v Greece  [2000] ECR I-6537, an analysis of those definitions shows that the scope of the term economic activities is very wide, and that the term is objective in character, in the sense that the activity is considered per se and without regard to its purpose or results (see also Case 235/85 Commission  v Netherlands  [1987] ECR 1471, paragraph 8, and, to that effect, in particular Case 268/83 Rompelman  [1985] ECR 655, paragraph 19, and Case C-497/01 Zita Modes [2003] ECR I-14393, paragraph 38).
48. That analysis and that of the terms ‘supply of goods’ and ‘supply of services’ show that those terms, which define taxable transactions under the Sixth Directive, are all objective in nature and apply without regard to the purpose or results of the transactions concerned (see, to that effect, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others  [2006] ECR I-0000, paragraph 44).
49. As the Court held in paragraph 24 of its judgment in Case C-4/94 BLP Group  [1995] ECR I-983, an obligation on the tax authorities to carry out inquiries to determine the intention of the taxable person would be contrary to the objectives of the common system of VAT of ensuring legal certainty and facilitating application of VAT by having regard, save in exceptional cases, to the objective character of the transaction in question.
51. Whilst it is true that those criteria are not satisfied where tax is evaded, for example by means of untruthful tax returns or the issue of improper invoices, the fact nevertheless remains that the question whether the transaction concerned is carried out for the sole purpose of obtaining a tax advantage is entirely irrelevant in determining whether it constitutes a supply of goods or services and an economic activity.
CLT-UFA SA v Finanzamt Köln-West.
Date: 2006-02-23
12. It must be remembered that Article 52 of the Treaty constitutes one of the fundamental provisions of Community law and has been directly applicable in the Member States (see, in particular, Case C-307/97 Saint-Gobain ZN  [1999] ECR I-6161, paragraph 34).
13. Under that provision, freedom of establishment for nationals of one Member State on the territory of another Member State includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down for its own nationals by the law of the country where such establishment is effected. The abolition of restrictions on freedom of establishment also applies to restrictions on the setting up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of another Member State (Case 270/83 Commission  v France  [1986] ECR 273, paragraph 13, and Case C-311/97 Royal Bank of Scotland  [1999] ECR I-2651, paragraph 22).
14. The second sentence of the first paragraph of Article 52 expressly leaves traders free to choose the appropriate legal form in which to pursue their activities in another Member State and that freedom of choice must not be limited by discriminatory tax provisions ( Commission  v France , paragraph 22).
15. Therefore, the freedom to choose the appropriate legal form in which to pursue activities in another Member State primarily serves to allow companies having their seat in a Member State to open a branch in another Member State in order to pursue their activities under the same conditions as those which apply to subsidiaries.
35. In that regard, it must be noted that in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (see Case 36/79 Denkavit Futtermittel  [1979] ECR 3439, paragraph 12, Case C-235/95 Dumon and Froment  [1998] ECR I-4531, paragraph 25, and Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro  [1999] ECR I-6881, paragraph 37, and Case C-282/00 RAR  [2003] ECR I-4741, paragraph 46).
36. The Court thus has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68 Salgoil  [1968] ECR 661; Case 51/74 Van der Hulst  [1975] ECR 79, paragraph 12; Case C-320/88 Shipping and Forwarding Enterprise Safe  [1990] ECR I-285, paragraph 11; Lirussi and Bizzaro , paragraph 38, and RAR , paragraph 47).
Commission of the European Communities v European Parliament and Council of the European Union.
Date: 2006-02-23
37. The concept of implementation for the purposes of that article comprises both the drawing-up of implementing rules and the application of rules to specific cases by means of acts of individual application (see Case 16/88 Commission  v Council  [1989] ECR 3457, paragraph 11).
38. Although acts of individual application can be covered only by Article 2(a) of the second comitology decision, measures of general application may come under either of the two parts of that article.
41. In the light of those differences, there must be classified as ‘management measures … relating … to the implementation of programmes’ within the meaning of Article 2(a) of the second comitology decision, first, measures of individual application adopted for that purpose (see Commission  v Council ,  paragraphs 15 and 18) and, second, measures of general application closely linked to them and part of a framework sufficiently developed by the basic instrument itself.
Dollond & Aitchison Ltd v Commissioners of Customs & Excise.
Date: 2006-02-23
26. In answering the question referred for a preliminary ruling as set out, it must be borne in mind that the Court has already held that in order to determine what constitutes the ‘transaction value’ the calculation must be made on the basis of the conditions on which the individual sale was made (see Case 65/85 Van Houten  [1986] ECR 447, paragraph 13).
27. The Court has also held that, although software is not ‘goods’ but intangible property not subject to the Common Customs Tariff, the cost of acquiring it must be regarded as an integral part of the price paid or payable for the goods where it is embodied in them (see Case C-79/89 Brown Boveri  [1991] ECR I-1853, paragraph 21).
28. Moreover, after finding that the analyses carried out after importation were necessary in order for the goods to be delivered in accordance with the provisions of the contract, the Court held that the costs of those analyses, which the importer invoices to the buyer in addition to the price of the goods, must be regarded as an integral part of the ‘transaction value’ of the latter (see Case C-15/99 Sommer  [2000] ECR I-8989, paragraphs 24 and 27).
29. Finally, in Case C-379/00 Overland Footwear  [2002] ECR I-11133, paragraph 17, the Court held that Articles 29, 32 and 33 of the Customs Code must be construed as meaning that a buying commission which is included in the customs value declared and is not shown separately from the selling price of the goods in the import declaration must be considered to be part of the transaction value within the meaning of Article 29 of that Code and is, therefore, dutiable.
31. In this respect, the fact that one of the two elements is effected in the customs territory of the Community and the other one outside that territory is of no relevance for determining the transaction value (see, to that effect, Case C-116/89 BayWa  [1991] ECR I-1095, paragraph 15).
Siegfried Aulinger v Bundesrepublik Deutschland.
Date: 2006-03-09
30. The 10th recital in the preamble to Regulation No 1432/92 states that the purpose of the regulation is, inter alia, to ensure a uniform implementation throughout the Community of certain of the measures in Resolution 757 (1992). Consequently, account must be taken of the wording and the purpose of that resolution (see, to that effect, Bosphorus, paragraphs 13 and 14) in order to interpret that regulation. Regulation No 1432/92 cannot therefore be interpreted in a manner that is contrary to Resolution 757 (1992).
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2006-03-09
17. In that judgment, the Court stated first of all that several provisions of the EAEC Treaty confer on the Commission substantial powers which enable it to intervene actively, by means of legislation or in the form of an opinion containing individual decisions, in various spheres of activity which, in the Community, are concerned with the use of nuclear energy. By way of example, the Court mentioned, apart from the provisions of Title II, Chapter 3, of that Treaty, on health and safety, in particular Articles 34 EA, 35 EA and 37 EA, the provisions of Title II, Chapter 1, on promotion of research, observing that the text of those provisions does not in any way specify whether the activities thus governed are exclusively civil (see Commission  v United Kingdom , cited above, paragraph 35).
18. The Court went on to state that the application of such provisions to military installations, research programmes and other activities might be such as to compromise essential national defence interests of the Member States (see Commission  v United Kingdom , cited above, paragraph 36).
19. On the basis of those considerations, the Court concluded that, in view of the absence in the EAEC Treaty of any derogation laying down the detailed rules according to which the Member States would be authorised to invoke and protect those essential interests, activities falling within the military sphere are outside the scope of that Treaty (see Commission  v United Kingdom , cited above, paragraph 36).
28. It is important to note, however, that that finding does not by any means reduce the vital importance of the objective of protecting the health of the public and the environment against the dangers related to the use of nuclear energy, including for military purposes. In so far as the EAEC Treaty does not provide the Community with a specific instrument in order to pursue that objective, it is possible that appropriate measures might be adopted on the basis of the relevant provisions of the EC Treaty (see Commission  v United Kingdom , cited above, paragraph 44).
Stichting Zuid-Hollandse Milieufederatie and Stichting Natuur en Milieu v College voor de toelating van bestrijdingsmiddelen.
Date: 2006-03-09
20. In this respect, firstly, according to settled case-law, where a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see Case 187/87 Saarland and Others  [1988] ECR 5013, paragraph 19, and Case C-403/99 Italy  v Commission  [2001] ECR I-6883, paragraph 28) and which does not detract from its validity (see Italy  v Commission , paragraph 37). Secondly, the need for a uniform interpretation of Community law makes it impossible for the text of a provision to be considered, in case of doubt, in isolation; on the contrary, it requires that it be interpreted in the light of the versions existing in the other official languages (see Case 9/79 Koschniske [1979] ECR 2717, paragraph 6, and Case C-296/95 EMU Tabac and Others  [1998] ECR I-1605, paragraph 36).
30. In the present case, it is apparent from the reasons underlying Directive 91/414 that it has the objective, firstly, of removing barriers to intra-Community trade in plant products and of improving plant production and, secondly, of protecting human and animal health and the environment.
C. D. Robinson-Steele v R. D. Retail Services Ltd (C-131/04), Michael Jason Clarke v Frank Staddon Ltd and J. C. Caulfield and Others v Hanson Clay Products Ltd (C-257/04).
Date: 2006-03-16
48. In that regard, it must be recalled that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by the directive itself (see Case C-173/99 BECTU  [2001] ECR I-4881, paragraph 43).
49. The holiday pay required by Article 7(1) of the directive is intended to enable the worker actually to take the leave to which he is entitled.
50. The term ‘paid annual leave’ in that provision means that, for the duration of annual leave within the meaning of the directive, remuneration must be maintained. In other words, workers must receive their normal remuneration for that period of rest.
57. In that regard, the Member States must ensure that the detailed national implementing rules take account of the limits flowing from the directive itself.
58. The directive treats entitlement to annual leave and to a payment on that account as being two aspects of a single right. The purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work.
60. Furthermore, account must be taken of the fact that, under Article 7(2) of the directive, the minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. That prohibition is intended to ensure that a worker is normally entitled to actual rest, with a view to ensuring effective protection of his health and safety (see, to that effect, BECTU , cited above, paragraph 44, and Case C-342/01 Merino Gómez  [2004] ECR I-2605, paragraph 30).
68. In any event, in the light of the mandatory nature of the entitlement to annual leave and in order to ensure the practical effect of Article 7 of the directive, such set-off is excluded where there is no transparency or comprehensibility. The burden of proof in that respect is on the employer.
Rosmarie Kapferer v Schlank & Schick GmbH.
Date: 2006-03-16
20. In that regard, attention should be drawn to the importance, both for the Community legal order and national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question (Case C-224/01 Köbler  [2003] ECR I-10239, paragraph 38).
21. Therefore, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue (see, to that effect, Case C-126/97 Eco Swiss  [1999] ECR I-3055, paragraphs 46 and 47).
22. By laying down the procedural rules for proceedings designed to ensure protection of the rights which individuals acquire through the direct effect of Community law, Member States must ensure that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness) (see, to that effect, Case C-78/98 Preston and Others  [2000] ECR I-3201, paragraph 31 and the case-law cited). However, compliance with the limits of the power of the Member States in procedural matters has not been called into question in the dispute in the main proceedings as regards appeal proceedings.
Ministero dell'Economia e delle Finanze and Agenzia delle Entrate v FCE Bank plc.
Date: 2006-03-23
21. It is established case-law that, in the procedure laid down by Article 234 EC providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it (see Case C-334/95 Krüger  [1997] ECR I-4517, paragraph 22, and Case C-88/99 Roquette Frères  [2000] ECR I-10465, paragraph 18). To that end the Court of Justice may have to reformulate the question referred to it (see Krüger , paragraph 23, and Case C-62/00 Marks & Spencer  [2002] ECR I-6325, paragraph 32).
33. Second, Article 4 of the Sixth Directive defines ‘taxable person’ as any person who ‘independently’ carries out an economic activity. Article 4(4) thereof states that the word ‘independently’ excludes from the tax persons bound to an employer by a contract of employment or by any other legal ties creating the relationship of employer and employee as regards working conditions, remuneration and the employer’s liability (see Joined Cases C-78/02 to C-80/02 Karageorgou and Others  [2003] ECR I-13295, paragraph 35).
34. In that regard, according to the case-law of the Court, a provision of services is taxable only if there exists between the service provider and the recipient a legal relationship in which there is a reciprocal performance (see Case C-16/93 Tolsma  [1994] ECR I-743, paragraph 14, and Case C-174/00 Kennemer Golf  [2002] ECR I-3293, paragraph 39).
35. To establish whether such a legal relationship exists between a non-resident company and one of its branches so that the supplies made may be subject to VAT, it is necessary to determine whether FCE IT carries out an independent economic activity. It is necessary in that regard to determine whether a branch such as FCE IT may be regarded as being an independent bank, in particular in that it bears the economic risk arising from its business.
36. As Advocate General Léger noted in point 46 of his Opinion, the branch does not itself bear the economic risks associated with carrying on the business of a credit institution, such as, for example, a customer defaulting on the repayment of a loan. The bank, as a legal person, bears that risk and is therefore the subject of supervision of its financial strength and solvency in the Member State of origin.
37. As a branch, FCE IT does not have any endowment capital. Consequently, the risk associated with the economic activity lies wholly with the FCE Bank. Consequently, FCE IT is dependent upon that company and, with it, constitutes a single taxable person.
40. Lastly, any agreement on the sharing of costs is also irrelevant for present purposes since such an agreement was not negotiated between independent parties.
Kingdom of Spain v Council of the European Union.
Date: 2006-03-30
9. The Court invited the parties to submit their observations on the question of the admissibility of the action having regard to the case-law according to which partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see, inter alia, Case C-29/99 Commission v Council  [2002] ECR I-11221, paragraphs 45 and 46; Case C-378/00 Commission  v Parliament and Council  [2003] ECR I‑937, paragraph 30; Case C-239/01 Germany  v Commission  [2003] ECR I‑10333, paragraph 33; and Case C-244/03 France  v Parliament and Council [2005] ECR I-4021, paragraph 12).
13. The Court has repeatedly ruled that that requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95 France and Others  v Commission  [1998] ECR I-1375, paragraph 257; Commission v Council , paragraph 46; Germany  v Commission , paragraph 34; and France  v Parliament and Council , paragraph 13).
14. Moreover, the Court has decided that the question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue ( Germany v Commission , paragraph 37).
16. The contested provisions constitute the core of the contested regulation.