III. 1 Court of Justice of the European Union
Judgment of the Court of 28 February 2018, Case no. C 577/16: Reference for a preliminary ruling. Scheme for greenhouse gas emission allowance trading within the European Union. Directive 2003/87 / EC. Scope of Article 2 (1) Annex I. Activities subject to the trade regime. Production of polymers. Use of heat supplied per installation. Application for free allocation of allowances. 2013-2020 period.
“Article 2 (1) of Directive 2003/87 / EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for the sale of greenhouse gas emission allowance Community Directive and amending Council Directive 96/61 / EC as amended by Directive 2009/29 / EC of the European Parliament and of the Council of 23 April 2009 is to be interpreted as meaning that a production plant of polymers, in particular polycarbonate, such as the one at issue in the main proceedings, which supplies itself with the heat required for that production at another plant, is not covered by the greenhouse gas emission allowance trading scheme established by it since it does not generate direct CO2 emissions.”
Judgment of the Court of 28 February 2018, Case no. C 3/17: Reference for a preliminary ruling. Freedom to provide services. Article 56 TFEU, Article 4 (3) TEU. Charter of Fundamental Rights of the European Union. Restrictions. Games of fortune and chance. National legislation. Exploration of certain forms of games of chance by the State. Exclusivity. System of concession for other forms of game. Requirement of authorization. Administrative penalty.
“Article 56 TFEU must be interpreted as not precluding, in principle, a dual system of market organization for games of chance in which certain types of games form part of the system of state monopoly, while others form part of the system of concessions and authorizations for the organization of games of chance provided that the national court finds that the rules restricting the freedom to provide services effectively pursue in a consistent and systematic way the objectives invoked by the Member State concerned.
Article 56 TFEU must be interpreted as precluding a national rule, such as that at issue in the main proceedings, according to which the granting of an authorization for the organization of online games of chance is reserved exclusively for operators of games of chance who have a casino concession situated in the national territory, inasmuch as that rule is not an indispensable condition for attaining the intended objectives and that there are less restrictive measures to achieve them. Article 56 TFEU is to be interpreted as precluding legislation, such as that at issue in the main proceedings, which establishes a system of concessions and authorizations for the organization of online games of chance, where such legislation contains rules which discriminate against operators established in other Member States or which provide for non-discriminatory rules but which do not apply in a transparent manner or are applied in such a way as to prevent or render more difficult the application of certain tenderers established in other Member States.
Must Article 56 TFEU and Article 4 (3) TEU, in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, be interpreted as are contrary to national legislation such as that at issue in the main proceedings which does not provide for an unofficial examination of the proportionate nature of measures restricting the freedom to provide services within the meaning of Article 56 TFEU and imposes the burden of evidence of the parties to the proceedings. Is Article 56 TFEU, read in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights, to be interpreted as meaning that it is for a Member State which has applied restrictive legislation to provide evidence to demonstrate the existence of appropriate objectives to legitimize an obstacle to a fundamental freedom guaranteed by the FUE Treaty and its proportionality, otherwise the national court must be able to withdraw all the consequences of that omission.
Article 56 TFEU must be interpreted as meaning that a Member State can not be found to have failed to fulfill its obligation to justify a restrictive measure on the ground that it did not present an analysis of the effects of that measure when it was introduced into legislation the national court or at the time of the examination of that measure by the national court. Article 56 TFEU is to be interpreted as precluding a penalty, such as that at issue in the main proceedings, imposed by breach of national legislation establishing a system of concessions and authorizations for the organization of games of fortune and chance, in the event that such national legislation would be contrary to that article.”
Judgment of the Court of 28 February 2018, Case no. C-289/17: Reference for a preliminary ruling. Judicial cooperation in civil and commercial matters. Regulation (EC) No 805/2004 – European enforcement order for uncontested claims. Certification requirements. Minimum standards for procedures relating to uncontested claims. Rights of the debtor. Failure to state the address of the institution to which the challenge to the credit may be directed or the challenge to the decision.
“Articles 17 (a) and 18 (1) (b) of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 establishing the to be interpreted as meaning that a judgment given without the debtor having been informed of the address of the court to which be addressed to challenge that decision, it cannot be certified as a European Enforcement Order.”
Judgment of the Court of February 21, Case no. C‑628/16: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Successive supplies relating to the same goods. Place of the second supply. Information provided by the first supplier. VAT identification number. Right to deduct. Legitimate expectation on the part of the taxable person regarding the existence of the conditions giving rise to the right to deduct.
“In circumstances such as those in the main proceedings, the first paragraph of Article 32 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that it applies to the second of two successive supplies of the same goods which gave rise to only one intra-Community transport.
Where the second supply in a chain of two successive supplies involving a single intra-Community transport is an intra-Community supply, the principle of the protection of legitimate expectations must be interpreted as meaning that the person ultimately acquiring the goods, who wrongly claimed a right to deduct input value added tax, may not deduct, as input value added tax, the value added tax paid to the supplier solely on the basis of the invoices provided by the intermediary operator which incorrectly classified its supply.”
Judgment of the Court of February 22, Cases no. C‑398/16 and C‑399/16: Reference for a preliminary ruling. Articles 49 and 54 TFEU. Freedom of establishment. Tax legislation. Corporation tax. Advantages linked to the formation of a single tax entity. Exclusion of cross-border groups
“Articles 49 and 54 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, pursuant to which a parent company established in a Member State is not allowed to deduct interest in respect of a loan taken out with a related company in order to finance a capital contribution to a subsidiary established in another Member State, whereas if the subsidiary were established in the same Member State, the parent company could avail itself of that deduction by forming a tax-integrated entity with it.
Articles 49 and 54 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, pursuant to which a parent company established in a Member State is not allowed to deduct from its profits capital losses derived from fluctuations in the exchange rate, in connection with the value of its shares in a subsidiary established in another Member State, where the same legislation does not provide, symmetrically, for tax to be levied on capital gains derived from those fluctuations.”
III. 2 Constitutional Court
Judgment of the Constitutional Court no. 91/2018 of February 20, Case no. 574/16: Doesn’t consider the interpretation, extracted from the conjunction of articles 150, paragraph 1, of the Code of Procedure in the Administrative Courts unconstitutional, and 26 (h) of the Statute of the Administrative and Tax Courts, to the effect that the Tax Litigation Section of the Supreme Administrative Court is competent, as a matter of fact, to hear the appeal brought by the Tax Litigation Section of the Central Administrative Court.
III. 3 Courts of Justice
Judgment of the Supreme Court of Justice of February 12, Process no. 1/2018: “The simple failure to observe the 48-hour deadline imposed in paragraph 4 of art. 188 of the CPP, for M. º P. º to bring to the judge the technical support, records and reports regarding wiretapping, constitutes nullity dependent on argument, under the terms of articles 190 and 120, both of the Code of Criminal Procedure.’
Judgment of the Supreme Court of Justice of February 13, Process no. 2/2018: “In the case of a crime contest, ancillary penalties for driving motor vehicles, provided for in paragraph 1, al. (a) of the Criminal Code, are subject to a legal clause “.
Judgment of the Supreme Court of Justice of February 19, Process no. 3/2018, “The document that is offered for execution under the provisions of Article 46, (1) (c) of the Civil Procedure Code of 1961 (in the wording given by Decree-Law no. 329-A / 95, of December 12), and which includes recognition of the obligation to monetary amount resulting from mutual lien for lack of legal form shall be enforceable in respect of the lodged capital”.
Judgment of Oporto’s Court of Appeal of February 8, Process no. 1091/15.5T8PVZ.P1: stipulates that article 505 of the Civil Code must be interpreted in a currentistic manner, in accordance with Community law. Hence, that provision allows for the liability of the injured person to be held liable for the risk of the driver of the vehicle, which is only excluded when the accident is only attributable — ie solely due, with or without fault – to the driver himself third party, or where it results (exclusively) from force majeure unrelated to the operation of the vehicle. However, de jure constituted, the actual risk is not presumed Does not include as a risk of the vehicle, in competition with the fault of the injured, the action of the driver who, restarting the march of his car at a traffic light, the moment it opens for him the green signal, immediately hit the injured person who, with a bicycle, starts crossing the road, from the right side of the vehicle in violation of the luminous red signal that was directed at him forbidding the pedestrians crossing.
III. 4 Administrative and Tax Courts
Judgment of the Supreme Administrative Court of February 7, Case no. 020/18: Evidences of wealth. Temporal scope. Presumption.
Judgment of the Central Administrative Court South of February 8, Case no. 117/14.4BELLE: Municipal Property Tax. Building land. Coefficient of quality and comfort and location.
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