larimo/cjeu-paragraph-retrieval huggingface dataset:
Mercedes Benz Italia SpA v Agenzia delle Entrate Direzione Provinciale Roma 3.
Date: 2016-12-14
24


However, the third subparagraph of Article 17(5) of the Sixth Directive allows Member States to use specific methods, of a derogating character, for the calculation of the right of deduction, including that laid down in point (d) of that provision (see, to that effect, judgment of 8 November 2012, BLC Baumarkt , C‑511/10, EU:C:2012:689, paragraph 24).
34


First, in that regard, it is clear from the actual wording of the first subparagraph of Article 17(5) of the Sixth Directive that the calculation of a deductible proportion to determine the amount of deductible VAT is, in principle, reserved solely to goods and services used by a taxable person to carry out both economic effect, transactions which give rise to a right to deduct and those which do not (see, to that effect, judgments of 6 September 2012, Portugal Telecom , C‑496/11, EU:C:2012:557, paragraph 40, and of 9 June 2016, Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft, C‑332/14, EU:C:2016:417, paragraph 25).
39


It must be recalled that, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness (see, inter alia, judgment of 9 March 2000, EKW and Wein & Co , C‑437/97, EU:C:2000:110, paragraph 41).
43


The considerations set out in paragraph 38 above are, moreover, supported by one of the objectives pursued by the Sixth Directive, which is, as is clear from the 17th recital of that directive, to authorise the use of rules which are relatively simple to apply (see, to that effect, judgment of 8 March 2012, Commission v Portugal, C‑524/10, EU:C:2012:129, paragraph 35).
47


However, the Court has already stated that, although the scale of the income generated by financial transactions within the scope of the Sixth Directive may be an indication that those transactions should not be regarded as incidental within the meaning of Article 19(2) of that directive, the fact that income greater than that produced by the activity stated by the undertaking concerned to be its main activity is generated by such transactions cannot, by itself, suffice to preclude their classification as ‘incidental transactions’ within the meaning of that provision (see, to that effect, judgment of 29 April 2004, EDM , C‑77/01, EU:C:2004:243, paragraph 77).
48


Moreover, it is apparent from the Court’s case-law that an economic activity must be classified as ‘incidental’, within the meaning of Article 19(2) of the Sixth Directive, if it does not constitute the direct, permanent and necessary extension of the business and if it does not entail a significant use of goods and services subject to VAT (see, to that effect, judgments of 11 July 1996, Régie dauphinoise, C‑306/94, EU:C:1996:290, paragraph 22; of 29 April 2004, EDM , C‑77/01, EU:C:2004:243, paragraph 76; and of 29 October 2009, NCC Construction Danmark, C‑174/08, EU:C:2009:669, paragraph 31).
SV Capital OÜ v European Banking Authority (EBA).
Date: 2016-12-14
31


With regard to the first ground of appeal, by which the appellant claims that the General Court ruled ultra petita, it is sufficient to note that the EU judicature is required to raise of its own motion questions as to the competence of the authority whose measure is being challenged before it, even where none of the parties has made any application to that effect, when the lack of competence of the authority which adopted the measure adversely affecting a party constitutes an absolute bar to proceeding with the case that the Court not only may but must raise of its own motion.
65


It is settled case-law that complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective (see judgments of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 75, and of 29 March 2011, Anheuser-Busch v Budějovický Budvar, C‑96/09 P, EU:C:2011:189, paragraph 211 and the case-law cited).
69


According to settled case-law, it is apparent from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169 of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment under appeal and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see, inter alia, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 29, and order of 12 February 2015, Meister v Commission, C‑327/14 P, not published, EU:C:2015:99, paragraph 12). The seventh to eleventh grounds of appeal do not in any way relate to the judgment under appeal; rather, they concern the EBA decision of 21 February 2014. For that reason alone, they must be rejected as inadmissible.
Alberto José Vieira de Azevedo and Others v CED Portugal Unipessoal, Lda and Instituto de Seguros de Portugal - Fundo de Garantia Automóvel.
Date: 2016-12-15
19


As a preliminary point, it should be recalled that, in order to determine the scope of a provision of EU law, its wording, context and objectives must all be taken into account (judgment of 10 October 2013, Spedition Welter, C‑306/12, EU:C:2013:650, paragraph 17).
23


Whilst, according to the wording of Article 4(5) of Directive 2000/26, the claims representative possesses sufficient powers to represent the insurance undertaking in relation to injured parties and to meet their claims in full, that provision, which thus lays down the purpose of that representation, does not define the exact scope of the powers granted for that purpose (see, to that effect, judgment of 10 October 2013, Spedition Welter, C‑306/12, EU:C:2013:650, paragraph 18).
33


It admittedly follows from those considerations that the Union legislature intended that, without being able to call into question observance of the rules of private international law, representation of insurance undertakings under Article 4(5) of Directive 2000/26 includes the duty to allow injured parties validly to bring proceedings before national courts for compensation for damage. In that context, the claims representative’s sufficient powers must include the authority to accept service of judicial documents (see, to that effect, judgment of 10 October 2013, Spedition Welter, C‑306/12, EU:C:2013:650, paragraphs 23 and 24).
34


As already noted by the Court, it is apparent from the drafting history of Directive 2000/26 that the legislature’s intention was that the powers enjoyed by the representative of an insurance undertaking in the victim’s State of residence should include, albeit to a limited extent, acceptance of service of judicial documents, since it was not to affect the rules of private international law relating to the conferral of jurisdiction (see, to that effect, judgment of 10 October 2013, Spedition Welter, C‑306/12, EU:C:2013:650, paragraph 22).
Loterie Nationale – Nationale Loterij NV van publiek recht v Paul Adriaensen and Others.
Date: 2016-12-15
19


The Court has previously held that the prohibition of ‘pyramid promotional schemes’ within the meaning of point 14 of Annex I to Directive 2005/29 is based on three cumulative conditions. First, the promotion is based on the promise that the consumer will have the opportunity of obtaining a commercial advantage. Next, the realisation of that promise depends on the introduction of other consumers into the scheme. Finally, the greater part of the revenue to fund the compensation promised to consumers does not result from a real economic activity (see, to that effect, judgment of 3 April 2014, 4finance, C‑515/12, EU:C:2014:211, paragraph 20).
25


It should be recalled that the Court has previously held that, where there is no real economic activity to generate enough income to fund the compensation promised to consumers, a pyramid promotional scheme is necessarily based on the economic contribution of its participants, since the opportunity for a member of the scheme to receive compensation depends essentially on the fees paid by additional members (judgment of 3 April 2014, 4finance, C‑515/12, EU:C:2014:211, paragraph 21).
26


Such a scheme can only be a ‘pyramid’ scheme, in that its sustainability requires the subscription of an ever increasing number of new participants to fund the compensation paid to existing members. It also means that the most recent members are less likely to receive compensation for their participation. The scheme ceases to be viable when the growth in membership, which should theoretically tend to infinity in order for the scheme to continue, is no longer sufficient to fund the compensation promised to all participants (judgment of 3 April 2014, 4finance, C‑515/12, EU:C:2014:211, paragraph 22).
27


It follows that classification as a ‘pyramid promotional scheme’ within the meaning of point 14 of Annex I to Directive 2005/29 requires that the members of such a scheme pay a financial contribution (judgment of 3 April 2014, 4finance, C‑515/12, EU:C:2014:211, paragraph 23).
28


For the same reasons, that classification requires the existence of a link between the contributions paid by new members and the compensation received by existing members (see, to that effect, judgment of 3 April 2014, 4finance, C‑515/12, EU:C:2014:211, paragraph 27).
29


As to the nature of that link, it may be seen from the wording of most language versions of point 14 of Annex I to Directive 2005/29 that the funding of the compensation that a consumer may receive depends ‘primarily’ or ‘mostly’ on the contributions subsequently paid by new participants in the scheme (see judgment of 3 April 2014, 4finance, C‑515/12, EU:C:2014:211, paragraph 28).
Biuro podróży 'Partner' Sp. z o.o, Sp. komandytowa w Dąbrowie Górniczej v Prezes Urzędu Ochrony Konkurencji i Konsumentów.
Date: 2016-12-21
24


According to the settled case-law of the Court, the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19).
28


It should further be observed that, according to settled case-law, the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge (judgment of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraph 17 and the case-law cited).
29


In the light of that weaker position, Article 6(1) of Directive 93/13 provides that unfair terms are not binding on the consumer. It is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (judgment of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraph 18 and the case-law cited).
30


Moreover, given the nature and significance of the public interest constituted by the protection of consumers, who are in a position of weakness vis-à-vis sellers or suppliers, Article 7(1) of Directive 93/13 requires the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers (judgment of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 30 and the case-law cited).
52


In those judgments, the Court has held that decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of ‘a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’ within the meaning of Article 267 TFEU. The fact that the examination of the merits of such challenges is conditional upon a preliminary declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy (judgment of 16 December 2008, Cartesio, C‑210/06, EU:C:2008:723, paragraph 76 and the case-law cited).
53


The Court further held that that is true a fortiori in the case of a procedural system that merely imposes restrictions with regard, in particular, to the nature of the pleas which may be raised before such a court, which must allege a breach of law (judgment of 16 December 2008, Cartesio, C‑210/06, EU:C:2008:723, paragraph 77).
Swiss International Air Lines AG v The Secretary of State for Energy and Climate Change and Environment Agency.
Date: 2016-12-21
21


In that regard, it must be observed that the external aspects of the internal polices of the European Union are within the competences of the EU in the area of its external relations (see, by analogy, with respect to an act in relation to the internal market and the common agricultural policy, judgment of 22 January 1976, Balkan-Import-Export, 55/75, EU:C:1976:8, paragraph 14).
26


In accordance with the Court’s settled case-law, there is in the FEU Treaty no general principle obliging the Union, in its external relations, to accord in all respects equal treatment to different third countries and traders do not in any event have the right to rely on the existence of such a principle (see, inter alia, judgments of 22 January 1976, Balkan-Import-Export, 55/75, EU:C:1976:8, paragraph 14 ; of 28 October 1982, Faust v Commission, 52/81, EU:C:1982:369, paragraph 25; of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraph 56, and of 10 March 1998, T. Port, C‑364/95 and C‑365/95, EU:C:1998:95, paragraph 76).
29


On the contrary, the effect of the case-law cited in paragraph 25 of this judgment is that the institutions and agencies of the Union are relieved of any obligation to apply the principle of equal treatment to third countries, in order to maintain their internal freedom of action in terms of policy. Accordingly, the Court has stated, in general terms, that a difference in treatment of third countries is not contrary to EU law, emphasising that there is no obligation to treat third countries equally (see, to that effect, judgments of 28 October 1982, Faust v Commission, 52/81, EU:C:1982:369, paragraphs 25 and 27; of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraph 56, and of 10 March 1998, T. Port, C‑364/95 and C‑365/95, EU:C:1998:95, paragraph 76).
30


The non-application of the principle of equal treatment to the Union’s relations with third countries is confirmed by the manner in which the Court has given effect to the principle, enshrined in the case-law, referred to in paragraph 26 of this judgment. Accordingly, in the judgment of 28 October 1982, Faust v Commission (52/81, EU:C:1982:369, paragraph 25) the Court confined itself to finding that the difference in treatment of certain imports was due to a difference in treatment of third countries, in order to conclude that that difference in treatment was not contrary to EU law. Likewise, the Court has held that different treatment of traders marketing goods from third countries, which was the automatic consequence of a difference in treatment of third countries, was not contrary to the general principle of equal treatment (see judgments of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraphs 56 to 58, and of 10 March 1998, T. Port, C‑364/95 and C‑365/95, EU:C:1998:95, paragraphs 76 and 77).
Interservice d.o.o. Koper v Sándor Horváth.
Date: 2016-12-21
20


In the absence of a definition of the word ‘carrier’ in the Customs Code, it is necessary, according to settled case-law, to determine the scope of that concept of EU law by taking into account its wording, context and objectives (see, to that effect, judgment of 16 April 2015, Angerer, C‑477/13, EU:C:2015:239, paragraph 26 and the case-law cited).
Länsförsäkringar AB v Matek A/S.
Date: 2016-12-21
25


In laying down in Articles 15(1) and 51(1)(a) of Regulation No 207/2009 a rule under which an EU trade mark that has not been used for a period of five years is to be revoked, the EU legislature, as is apparent from recital 10 of the regulation, intended to make preservation of the rights connected with an EU trade mark conditional on the mark being actually used. That condition can be explained by the consideration that it would not be justifiable if a mark which is not used were to obstruct competition by limiting the range of signs which can be registered as marks by others and by denying competitors the opportunity to use a sign identical or similar to that mark when putting onto the internal market goods or services which are identical or similar to those covered by the mark in question (see, to this effect, judgments of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 32, and of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraph 54).
26


It is apparent from the wording and purpose of Article 15(1) and Article 51(1)(a) and (2) of Regulation No 207/2009 that, until the period of five years following registration of the EU trade mark has expired, the rights of the proprietor cannot be declared to be revoked in respect of either some or all of the goods or services for which the mark is registered. Those provisions thus confer on the proprietor a grace period for beginning genuine use of his mark, during which he may rely on the exclusive rights which the mark confers, pursuant to Article 9(1) of the regulation, in respect of all those goods and services, without having to demonstrate such use.
Criminal proceedings against Jozef Grundza.
Date: 2017-01-11
32


That having been established, it should be noted that it is that Court’s established case-law that, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment of 16 July 2015, Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraph 35, and of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 31).
41


Unlike those instruments of international law, Framework Decision 2008/909 is based primarily on the principle of mutual recognition, which constitutes, as stated in recital 1 of the decision, read in the light of Article 82(1) TFEU, the ‘cornerstone’ of judicial cooperation in criminal matters within the European Union, which, according to recital 5 of the decision, is founded on a special mutual confidence of the Member States in their respective legal systems (see, to that effect, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 46 and 47).
Rainer Typke v European Commission.
Date: 2017-01-11
19


It should be pointed out that the Court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure under Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 40).
31


The Court has already held that the right of access to documents of the institutions applies only to existing documents in the possession of the institution concerned and that Regulation No 1049/2001 may not be relied upon to oblige an institution to create a document which does not exist (see, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 38 and 46). It follows that, as the General Court correctly held in paragraph 55 of the judgment under appeal, an application for access that would require the Commission to create a new document, even if that document were based on information already appearing in existing documents held by it, falls outside the framework of Regulation No 1049/2001.
58


It follows from the Court’s settled case-law that the General Court’s assessment of the facts of the case before it does not constitute a point of law falling within the scope of the Court’s power of review, unless the General Court’s findings are vitiated by a substantive error or distortion which is manifest from the documents in the file.
Istituto di Ricovero e Cura a Carattere Scientifico (IRCCS) - Fondazione Santa Lucia v Cassa conguaglio per il settore elettrico and Others.
Date: 2017-01-18
29


However, it must be borne in mind that the nature of a tax, duty or charge must be determined by the Court, under EU law, according to the objective characteristics by which it is levied, irrespective of its classification under national law (see judgments of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 107, and of 24 June 2010, P. Ferrero e C. and General Beverage Europe, C‑338/08 and C‑339/08, EU:C:2010:364, paragraph 25).
32


Furthermore, for the purposes of classification of the amounts covering general electricity charges as tax, there must be an obligation to pay those amounts and, where that obligation is not satisfied, the debtor must be pursued by the competent authorities, provided that, in the case of indirect taxation, the person legally liable to pay is not necessarily the end consumer who has in turn been charged those amounts (see, by analogy, as regards VAT, judgment of 14 January 2016, Commission v Belgium, C‑163/14, EU:C:2016:4, paragraph 44).
35


In that context, it must be noted that the fact that the amounts covering general electricity charges are not intended for the general national budget but, as the Italian Government states, are paid to the management accounts of the Electricity Industry Equalisation Fund and allocated to certain categories of operators for specific uses cannot of itself preclude them from coming within the field of direct taxation (see, by analogy, judgment of 15 April 2010, CIBA, C‑96/08, EU:C:2010:185, paragraph 23).
36


Thirdly, as regards, more specifically, indirect taxation, it must be noted that such duties are typically charged to the end consumer of the goods or service supplied by their inclusion in the amount on the invoice sent to him (see, to that effect, judgment of 14 January 2016, Commission v Belgium, C‑163/14, EU:C:2016:4, paragraph 39).
50


That interpretation is borne out by the examination of the objectives pursued by Directive 2003/96. It is apparent from recitals 9 and 11 of that directive that it seeks to give Member States the flexibility necessary to define and implement policies appropriate to their national circumstances and the arrangements made in connection with the implementation of that directive are a matter for each Member State to decide.