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TZA News. EU Law / 20 August 2019

In this issue:

1. EU legal instruments and relevant case law of the ECJ – July 2019

Legislation

REGULATION (EU) 2019/942 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators

OJ publication date: 14.06.2019 ● Date of entry into force: 04.07.2019 ● Applies from: 04.07.2019 

The Agency for the Cooperation of Energy Regulators (ACER) was established by Regulation (EC) No. 713/2009 of the European Parliament and of the Council from the 13th of July 2009, which was later amended by Regulation (EU) No. 347/2013.

The purpose of the amendments made by the Regulation is to increase efforts to coordinate national energy policies with neighbors and to use the opportunities of cross-border electricity trade.

ACER should have a role in the development of a coordinated European resource adequacy assessment, in close cooperation with the European Network of Transmission System Operators for Electricity (ENTSO), in order to avoid the problems of fragmented national assessments which follow different uncoordinated methods and do not sufficiently take into account the situation in neighbouring countries.

ACER provides an integrated framework which enables the regulatory authorities to participate and cooperate. That framework facilitates the uniform application of the legislation on the internal markets for electricity and natural gas throughout the Union. In situations concerning more than one Member State, ACER has been granted the power to adopt individual decisions covering technical and regulatory issues which require regional coordination, in particular those concerning the implementation of network codes and guidelines, cooperation within regional coordination centers, the regulatory decisions necessary to effectively monitor wholesale energy market integrity and transparency, decisions concerning electricity and natural gas infrastructure that connects or that might connect at least two Member States and, as a last resort, exemptions from the internal market rules for new electricity interconnectors and new gas infrastructure located in more than one Member State.

A Board of Appeal has been organized within ACER where appeals may be lodged by any natural or legal person against an ACER decision taken against that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.

An appeal lodged does not have suspensory effect, however, the Board of Appeal may suspend the application of the contested decision if it considers that circumstances so require. The appeal shall be filed in writing at ACER within two months of the notification of the decision to the person concerned, or, in the absence thereof, within two months of the date on which ACER published its decision. The Board of Appeal shall decide upon the appeal within four months of
the lodging of the appeal.

DIRECTIVE (EU) 2019/1152 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 on transparent and predictable working conditions in the European Union

OJ publication date: 11.07.2019 ● Date of entry into force: 31.07.2019 ● Transposition deadline: 01.08.2022

The purpose of this Directive is to improve working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. minimum rights that apply to every worker in the Union, but Member States may decide not to This Directive lays down apply the obligations in this Directive to workers who have an employment relationship in which their predetermined and actual working time is equal to or less than an average of three hours per week in a reference period of four consecutive weeks.

This Directive reiterates some employer obligations which are usually provided for by national legislation, such as the employer’s obligation to inform the employee of his or her work conditions, the maximum duration of the probationary period, and legislation regarding the negotiation, modification and conclusion of employment relationships.

A novelty element is the mandatory conditions an employer must satisfy in order to solicit an employee to work in total or partial unpredictable conditions. According to article 10 section (1) of the Directive:
“a) the work takes place within predetermined reference hours and days as referred to in point (m)(ii) of Article 4(2); and
b) the worker is informed by his or her employer of a work assignment within a reasonable notice period established in accordance with national law, collective agreements or practice as referred to in point (m)(iii) of Article 4(2). (…)”

According to Article 13 of the Directive, work-related training shall be provided to the worker free of cost, shall count as working time and, where possible, shall take place during working hours.

REGULATION (EU) 2019/1157 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement

OJ publication date: 12.07.2019 ● Date of entry into force: 01.08.2019 ● Applies from: 02.08.2021

The Regulation’s objective is to strengthen the security standards applicable to identity cards issued by Member States to their nationals and to residence documents issued by Member States to Union citizens and their family members when exercising their right to free movement.

The new identity cards shall include a highly secure storage medium which shall contain a facial image of the holder of the card and two fingerprints in interoperable digital formats. The data stored shall be accessible in contactless form.

All citizens of the Union shall be required to give fingerprints, with the exception of children under 12 years of age which can be exempt, children under 6 which cannot be required to give fingerprints, and people who are physically incapable of providing a fingerprint.

The period of validity for the new identity cards shall be between 5 to 10 years.

The existing identity cards which do not meet the requirements set out in the Regulation shall

Each Member State shall designate at least one central authority as a contact point for the implementation of this Regulation. The biometric identifiers shall be collected solely by qualified and duly authorized staff designated by the authorities responsible for issuing identity cards or residence cards. Member States shall guarantee the security, integrity, authenticity and confidentiality of the data that has been collected and stored according to the Regulation.

Case Law

Judgment of the Court (First Chamber) of 3 July 2019. “UniCredit Leasing” EAD v Direktor na Direktsia „Obzhalvane i danachno-osiguritelna praktika“ – Sofia pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (NAP) (Case C-242/18)

Reference for a preliminary ruling Preliminary reference – Common system of value added tax (VAT) – Tax basis – Reduction – Principle of fiscal neutrality – Cancelled financial lease for non-payment of rates – Amending decision – Scope – Taxable transactions – Delivery of goods for tax purposes – Payment of a termination “allowance” until the contract expires – Jurisdiction of the Court.

1) Article 90 (1) of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding, in the event of termination of a financial lease, a reduction of the taxation for value added tax calculated at a lump sum by an amending decision on the whole of the lease rates due throughout the contract, even if this amending decision had entered into force and would thus constitute a “stable administrative act” finding of a fiscal debt under national law.

2) Article 90 of Directive 2006/112 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the failure to pay part of the lease rates owed by a financial lease for the period between termination of payments and termination non-retroactive of the contract, on the one hand, and the lack of payment of compensation due in case of early termination of the contract, corresponding to the sum of all unpaid lease rates until the expiry of this contract, on the other hand, is a case of non-payment likely to fall under the incidence of derogation from the obligation to reduce the tax base for value added tax purposes, provided for in paragraph 2 of this article, unless the taxable person demonstrates the existence of a reasonable probability that the debt will not be honored, an aspect which should be verified by the referring court.

Judgment of the Court (Eighth Chamber) of 10 July 2019. SIA “Kuršu zeme’ v Valsts ieņēmumu dienests (Case C-273/18)

Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Right to deduct input VAT — Article 168 — Goods supply chain — Refusal of the right to deduct on account of that chain’s existence — Obligation on the competent tax authority to establish the existence of an abusive practice.

Article 168(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as meaning that, for the purposes of refusing the right to deduct input value added tax (VAT), the fact that an acquisition of goods took place at the end of a chain of successive sale transactions between several persons and that the taxable person acquired possession of the goods concerned in the warehouse of a person forming part of that chain, other than the person mentioned as supplier on the invoice, is not in itself sufficient to find the existence of an abusive practice on the part of the taxable person or the other persons participating in that chain, the competent tax authority being required to establish the existence of an undue tax advantage obtained by that taxable person or those other persons.

Judgment of the Court (Fourth Chamber) of 11 July 2019. Procedures initiate by A. (Case C- 716/17)

Request for a preliminary ruling – Freedom of movement for workers – Restrictions – Opening of a debt relief procedure – Condition of residence – Admissibility – Article 45 TFEU – Direct effect.

1) Article 45 TFEU must be interpreted as precluding a rule of jurisdiction laid down by the regulation of a Member State such as that at issue in the main proceedings, which makes the granting of a debt relief measure conditional on the debtor having his domicile or residence in this Member State.

2) Article 45 TFEU must be interpreted as requiring the national court to leave the residence requirement provided for by a national jurisdiction rule such as that at issue in the main proceedings irrelevant, regardless of whether the debt relief procedure also provided for by that regulation, possibly leads to the impairment of claims held by individuals under the said regulation.

Judgment of the Court (Tenth Chamber) of 11 July 2019. Agrenergy Srl and Fusignano Due Srl v Ministero dello Sviluppo Economico.. (Joined Cases C-180/18, C-286/18 and C-287/18)

Reference for a preliminary ruling — Environment — Directive 2009/28/EC — Article 3(3)(a) — Promotion of the use of energy from renewable sources — Production of electricity by solar photovoltaic plants — Alteration of a support scheme — Principles of legal certainty and the protection of legitimate expectations.

Subject to verifications to be carried out by the referring court taking into account all the relevant factors, Article 3(3)(a) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, read in the light of the principles of legal certainty and the protection of legitimate expectations, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows a Member State to provide for the reduction, or even the removal, of incentive rates for energy produced by solar photovoltaic plants which were introduced previously.

Judgment of the Court (Fourth Chamber) of 29 July 2019. European Commission v Republic of Austria. (Case C-209/18)

Failure of a Member State to fulfil obligations — Infringement of Directive 2006/123/EC and Articles 49 and 56 TFEU — Restrictions and requirements relating to the location of the registered office, legal form, shareholding and multidisciplinary activities of partnerships and companies of civil engineers, patent agents and veterinary surgeons.

Declares that, by maintaining the requirements relating to the location of the seat for partnerships and companies of civil engineers and patent agents, the requirements relating to legal form and shareholding for partnerships and companies of civil engineers, patent agents and veterinary surgeons, and the restriction of multidisciplinary activities for partnerships and companies of civil engineers and patent agents, the Republic of Austria has failed to fulfil its obligations under Article 14(1), Article 15(1), (2)(b) and (c), and (3), and Article 25 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.

Judgment of the Court (Second Chamber) of 29 July 2019. Istituto nazionale della previdenza sociale (INPS) v Azienda Napoletana Mobilità SpA. Request for a preliminary ruling from the Corte suprema di cassazione. (Case C-659/17)

Reference for a preliminary ruling — State aid — Employment aid — Exemption from social security contributions in connection with training and work experience contracts — Decision 2000/128/EC — Aid granted by Italy to promote employment — Aid incompatible in part with the internal market — Applicability of Decision 2000/128/EC to an undertaking exclusively providing local public transport services which were directly awarded to it by a municipality — Article 107(1) TFEU — Concept of ‘distortion of competition’ — Concept of ‘effect on trade’ between Member States.

Subject to verifications which are to be made by the referring court, Commission Decision 2000/128/EC of 11 May 1999 concerning aid granted by Italy to promote employment must be interpreted as applying to an undertaking, such as that in the main proceedings, which, on the basis of a direct and exclusive award by a municipality, provided local public transport services and benefited from reductions in social security contributions under national legislation which was declared by that decision to be incompatible, in part, with the prohibition laid down in Article 107(1) TFEU.

Judgment of the Court (Tenth Chamber) of 29 July 2019. Finanzamt A v B. Reference for a preliminary ruling made by Bundesfinanzhof. (Case C-388/18)

Reference for a preliminary ruling – Taxation – Harmonization of tax laws – Directive 2006/112 / EC – Common system of value added tax (VAT) – Article 288, first paragraph, point 1 and Article 315 – Special regime for small businesses – Special regime for traders taxable persons – Trader taxable person which fall under the margin regime – Annual turnover that determines the applicability of the special regime for small businesses – Profit margin or amounts received.

Article 288, first paragraph, point 1 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax is to be interpreted as precluding a national regulation or national administrative practice under which the turnover serves as a reference for the purpose of applying the special regime for small businesses to a taxable person falling under the special regime of the margin provided for taxable traders calculated, according to Article 315 of this Directive, taking into account only the profit margin achieved. This turnover must be established based on all amounts, excluding value added tax, collected or to be collected by this trader taxable person, regardless of the modalities according to which these amounts will be effectively taxed.

Judgment of the Court (Fourth Chamber) of 29 July 2019. Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék. Request for a preliminary ruling from the Székesfehérvári Törvényszék. (Case C-620/17)

Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Directive 92/13/EEC — Right to effective judicial protection — Principles of effectiveness and equivalence — Action for review of judicial decisions in breach of EU law — Liability of the Member States in the event of infringement of EU law by national courts or tribunals — Assessment of damage eligible for compensation.

1) The liability of a Member State for damage caused by a decision of a national court or tribunal adjudicating at final instance which breaches a rule of European Union law is governed by the conditions laid down by the Court, in particular in paragraph 51 of the judgment of 30 September 2003, Köbler (C‐224/01, EU:C:2003:513), without excluding the possibility that that State may incur liability under less strict conditions on the basis of national law. That liability is not precluded by the fact that that decision has acquired the force of res judicata. In the context of the enforcement of that liability, it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at final instance committed a sufficiently serious infringement of European Union law by manifestly disregarding the relevant European Union law, including the relevant case-law of the Court. By contrast, European Union law precludes a rule of national law which, in such a case, generally excludes the costs incurred by a party as a result of the harmful decision of the national court or tribunal from damage which may be the subject of compensation.

2) European Union law, in particular Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66, as well as the principles of equivalence and effectiveness, must be interpreted as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, of a court or tribunal of that Member State which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment. However, if the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final –– where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision –– that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with European Union law, as interpreted by an earlier judgment of the Court of Justice.

Judgment of the Court (First Chamber) of 29 July 2019. Massimo Gambino and Shpetim Hyka v Procura della Repubblica presso il Tribunale di Bari and others. (Case C-38/18)

Reference for a preliminary ruling — Judicial cooperation in criminal matters – Directive 2012/29 / EU – Minimum requirements on the rights, support and protection of victims of crime – Articles 16 and 18 – Hearing of the victim by a first-degree criminal court – Modification of the composition of the court – Repeating the hearing of the victim at the request of one of the parties to the proceedings – Charter of Fundamental Rights of the European Union – Articles 47 and 48 – The right to a fair trial and the right to defence – The principle of non-mediation – Scope – The victim’s right to protection during the criminal procedure.

Articles 16 and 18 of Directive 2012/29 / EU of the European Parliament and of the Council of 25 October 2012 laying down minimum rules on the rights, support and protection of crime victims and replacing Council Framework Decision 2001/220 / JHA should interpreted in the sense that they do not preclude national regulation according to which, when the victim of a crime was first heard by the trial court of a first-degree criminal court and the composition of this unit is subsequently modified, the mentioned victim must, in principle, be heard again by the newly formed body, when one of the parties to the proceedings refuses to have that body based on the minutes of the first hearing of said victim.

Judgment of the Court (Second Chamber) of 29 July 2019. Fashion ID GmbH & Co.KG v Verbraucherzentrale NRW eV. Request for a preliminary ruling from the Oberlandesgericht Düsseldorf. (Case C-40/17)

Reference for a preliminary ruling — Protection of individuals with regard to the processing of personal data — Directive 95/46/EC — Article 2(d) — Notion of ‘controller’ — Operator of a website who has embedded on that website a social plugin that allows the personal data of a visitor to that website to be transferred to the provider of that plugin — Article 7(f) — Lawfulness of data processing — Taking into account of the interest of the operator of the website or of that of the provider of the social plugin — Articles 2(h) and 7(a) — Consent of the data subject — Article 10 — Informing the data subject — National legislation allowing consumer-protection associations to bring or defend legal proceedings.

1) Articles 22 to 24 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not precluding national legislation which allows consumer-protection associations to bring or defend legal proceedings against a person allegedly responsible for an infringement of the protection of personal data.

2) The operator of a website, such as Fashion ID GmbH & Co. KG, that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor can be considered to be a controller, within the meaning of Article 2(d) of Directive 95/46. That liability is, however, limited to the operation or set of operations involving the processing of personal data in respect of which it actually determines the purposes and means, that is to say, the collection and disclosure by transmission of the data at issue.

3) In a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, it is necessary that that operator and that provider each pursue a legitimate interest, within the meaning of Article 7(f) of Directive 95/46, through those processing operations in order for those operations to be justified in respect of each of them.

4) Articles 2(h) and 7(a) of Directive 95/46 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, the consent referred to in those provisions must be obtained by that operator only with regard to the operation or set of operations involving the processing of personal data in respect of which that operator determines the purposes and means. In addition, Article 10 of that directive must be interpreted as meaning that, in such a situation, the duty to inform laid down in that provision is incumbent also on that operator, but the information that the latter must provide to the data subject need relate only to the operation or set of operations involving the processing of personal data in respect of which that operator actually determines the purposes and means.

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