ddrg/super_eurlex huggingface dataset:
Case C-425/02

Johanna Maria Boor, née Delahaye

v

Ministre de la Fonction publique et de la Réforme administrative

(Reference for a preliminary ruling from the Cour administrative)

(Safeguarding of employees’ rights in the event of a transfer of an undertaking to the State – Possibility for the State to impose rules of public law – Reduction of the amount of remuneration)

Summary of the Judgment

Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of workers’ rights – Directive 77/187 – Taking over by the State of activities previously carried on by a legal person governed by private law – Possibility for the State to comply with national rules for public employees – Substantial reduction in remuneration – Substantial change in working conditions – Termination regarded as resulting from the action of the employer

(Council Directive 77/187, Arts 1(1) and 4(2))

Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses must be interpreted as not precluding in principle, in the event of a transfer of an undertaking from a legal person governed by private law to the State, the latter, as new employer, from reducing the amount of the remuneration of the employees concerned for the purpose of complying with the national rules in force for public employees. However, the competent authorities responsible for applying and interpreting those rules are obliged to do so as far as possible in the light of the purpose of that directive, taking into account in particular the employee’s length of service, in so far as the national rules governing the position of State employees take a State employee’s length of service into consideration for calculating his remuneration. If such a calculation leads to a substantial reduction in the employee’s remuneration, such a reduction constitutes a substantial change in working conditions to the detriment of the employees concerned by the transfer, so that the termination of their contracts of employment for that reason must be regarded as resulting from the action of the employer, in accordance with Article 4(2) of Directive 77/187.

(see para. 35, operative part)
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Procedure — Proceedings brought before the Court on the basis of an arbitration clause — Contract granting Community funding for a project in the field of research and technological development, including demonstration — Total financial contribution to the project less than the amount paid out by the Commission — Right to partial reimbursement of an advance payment together with default interest — (Art. 238 EC)
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Social policy – Men and women – Access to employment and working conditions – Equal treatment – Derogations – Measures to promote equal opportunity for men and women – Benefit of an exemption from the age limit to enter public employment allowed only to widows who have not remarried – Not permissible

(Art. 141(4) EC; Council Directive 76/207, Arts 2(4) and 3(1))

Summary

Articles 3(1) and 2(4) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as meaning that they preclude a national provision which reserves the exemption from the age limit for entry to competitive examinations organised for the recruitment of civil servants to widows who have not remarried who are obliged to work, excluding widowers who have not remarried who are in the same situation.

First, that provision is contrary to Article 3(1) of Directive 76/207 as it results in discrimination on grounds of sex. Secondly, it cannot be allowed under Article 2(4) of that directive which exclusively authorises measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life. Therefore such a measure which is intended to give priority in promotion to women in sectors of the public service is incompatible with Community law when it automatically and unconditionally gives priority to the candidatures of certain categories of women, excluding men who are in the same situation.

(see paras 20, 22-23, 27, 32, operative part)
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Member States – Obligations – Supervisory task conferred on the Commission – Duty on the part of Member States – Cooperation in investigations relating to a failure by a Member State to fulfil obligations

(Arts 10 EC and 226 EC)
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1. Environment – Conservation of wild birds – Directive 79/409 – Implementation by the Member States – Derogations from the prohibition on killing or capturing protected species – Prevention of serious damage to crops – Condition – Lack of satisfactory alternative solution

(Council Directive 79/409, Art. 9(1)(a))

2. Environment – Conservation of wild birds – Directive 79/409 – Implementation by the Member States – Derogations from the prohibition on killing or capturing protected species – Condition – Capture in small numbers – Criteria

(Council Directive 79/409, Art. 9(1)(c))

Summary

1. A derogation under Article 8 of Directive 79/409 on the conservation of wild birds, which prohibits the use of all means, arrangements or methods used for large-scale or non-selective capture or hunting, may, according to Article 9(1) of the directive, be made only where there is no other satisfactory solution and for reasons exhaustively listed in Article 9(1)(a) and (c), including serious damage to crops.

(see para. 24)

2. In order to assess whether the derogation granted by a Member State under Article 9(1)(c) of Directive 79/409 on the conservation of wild birds fulfils the condition that the capture of the birds in question should be carried out in small numbers, the Court may, in the absence before the Court of any element of scientific proof to the contrary, use as a basis of reference the opinion of the ORNIS committee, the Committee for the Adaptation to Technical and Scientific Progress, instituted under Article 16 of the Directive, by means of the acknowledged scientific value of those opinions. That applies to the opinion proposing the criterion of small numbers, notwithstanding the fact that it is not legally binding on the Member States.

(see para. 41)
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1. Agriculture – Approximation of laws – Health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products – Directive 92/46 – Meaning of ‘milk for the manufacture of milk-based products’ – Milk constituents of a product which also contains other non-milk constituents which cannot be separated from the former – Excluded

(Council Directive 92/46, Art. 2(2))

2. Agriculture – Approximation of laws – Health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products – Directive 92/46 – Meaning of ‘milk-based products’ – Semi-finished products – Included – Criteria – Characteristics and objective properties of the product

(Council Directive 92/46, Art. 2(4))

Summary

1. Article 2(2) of Directive 92/46 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products is to be interpreted as meaning that the expression ‘milk for the manufacture of milk-based products’ does not include milk constituents of a product which also contains other non-milk constituents if the milk constituent cannot be separated from the non-milk constituents. That provision covers only milk regarded as a single product whose composition could be modified only by the addition and/or removal of natural milk constituents.

(see paras 26, 28, operative part 1)

2. Article 2(4) of Directive 92/46 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products is to be interpreted as meaning that the term ‘milk-based products’ covers both finished products and semi-finished products which must undergo further processing before they can be offered for sale to the consumer. In such a case, it is with regard to the semi-finished product that it must be ascertained whether its milk content is an essential part, in terms of quantity or for its characterisation. To do that, account must be taken of the characteristics and objective properties of the semi-finished product when it is imported, particularly the proportion of milk or milk product which it contains, the use which can be made of it and its taste.

(see paras 34, 37-39, operative part 2)
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Approximation of laws – Disposal of waste oils – Directive 75/439 – Obligation of the Member States to give priority to the processing of oils by regeneration – Limits – Technical, economic or organisational constraints – Meaning

(Council Directive 75/439, Art. 3(1))

Summary

It is clear from Article 3(1) of Directive 75/439 on the disposal of waste oils, as amended by Directive 87/101, that the reference to ‘technical, economic or organisational constraints’ in that article forms part of a provision giving general expression to the obligation imposed on Member States and that the Community legislature did not thereby intend to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.

To consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in that article would deprive it of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary to give priority to the processing of waste oils by regeneration.

(see paras 38-39)
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Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation – Sites, included in the national lists, eligible for identification as sites of Community importance – Protective measures – Inapplicability of the measures prescribed in Article 6(2), (3) and (4) – Obligation on the Member States to safeguard their ecological interest

(Council Directive 92/43, Arts 4(5), and 6(2),(3) and (4))

Summary

On a proper construction of Article 4(5) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, the protective measures prescribed in Article 6(2), (3) and (4) of that directive are required only as regards sites which, in accordance with the third subparagraph of Article 4(2) of the directive, are on the list of sites selected as sites of Community importance adopted by the Commission in accordance with the procedure laid down in Article 21 of the directive. Consequently, those measures do not apply to the sites included in the national lists transmitted to the Commission pursuant to Article 4(1) of the directive.

However, by virtue of that directive, the Member States are required, as regards the latter sites, which are eligible for identification as sites of Community importance, and in particular as regards those hosting priority natural habitat types or priority species, to take protective measures that are appropriate, from the point of view of the directive’s conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.

(see paras 21-22, 25, 28-30, operative part)
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Agriculture – Approximation of laws – Control of foot-and-mouth disease – Directive 85/511 – Additional national measures to control the disease based on Directive 90/425 – Whether permissible – Conditions

(Council Directives 85/511, as amended by Directive 90/423, and 90/425, Art. 10(1))

Summary

Since foot-and-mouth disease is a disease which constitutes a serious hazard for animals, Article 10(1) of Directive 90/425 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market confers on Member States the power to adopt measures to control the disease in addition to those provided for in Directive 85/511 introducing Community measures for the control of foot-and-mouth disease, as amended by Directive 90/423. Member States have, in particular, the power to order the slaughter of animals belonging to a holding adjacent to or within a specific radius of a holding containing infected animals.

Such measures must however be adopted in compliance with the objectives pursued by the Community rules in force and, more particularly, Directive 85/511, as amended by Directive 90/423, the general principles of Community law, such as the principle of proportionality, and the obligation to communicate laid down in Article 10(1) of Directive 90/425.

(see para. 52, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – National legislation allowing an employer to deduct the tax on supplies of fuel to his employees – Fuel not used solely for business purposes – Not permissible

(Council Directive 77/388, Arts 17(2)(a) and 18(1)(a))

Summary

By granting taxable persons, in this case employers, the right to deduct value added tax on certain supplies of fuel to non-taxable persons, in this case their employees, in conditions that do not ensure that the tax deducted attaches solely to fuel used for the purposes of the taxable person’s taxable transactions, a Member State fails to fulfil its obligations under Articles 17(2)(a) and 18(1)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.

(see paras 18, 26, 31 and operative part)
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1. Approximation of laws — Procedure for the provision of information in the field of technical standards and regulations — Directive 83/189 — Technical regulation — Definition — National legislation prohibiting the use of certain automatic gaming machines for the organisation of games of chance — Included — Conditions

(Council Directive 83/189, Art. 1(9))

2. Approximation of laws — Procedure for the provision of information in the field of technical standards and regulations — Directive 83/189 — Member States’ obligation to notify all draft technical regulations to the Commission — National legislation redefining technical regulations — Obligation to notify — Conditions

(Council Directive 83/189, Art. 1(9))

3. Approximation of laws — Procedure for the provision of information in the field of technical standards and regulations — Directive 83/189 — Member States’ obligation to notify all draft technical regulations to the Commission — Scope

(Council Directive 83/189, Art. 1(9))

Summary

1. National provisions which entail a prohibition on the organisation of games of chance using certain gaming machines are liable to constitute a technical regulation within the meaning of Article 1(9) of Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10, where it is established that the scope of the prohibition at issue leaves no room for any use which can reasonably be expected of the product concerned other than a purely marginal one or, if that is not the case, where it is established that that prohibition may significantly influence the composition or nature of the product or its marketing.

(see para. 80, operative part 1)

2. Redefining in national legislation a service connected with the design of a product, in particular that of operating certain gaming machines can constitute a technical regulation which must be notified under Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10, if that new legislation does not merely reproduce or replace, without adding new or additional specifications, existing technical regulations which, if adopted after the entry into force of Directive 83/189 in the Member State concerned, have been duly notified to the Commission.

(see paras 84-85, operative part 2)

3. The replacement of a licence requirement by a prohibition in national law may be a significant factor with regard to the obligation to notify provided for by Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10.

However, the greater or lesser value of the product or service or the size of the market for the product or service are factors which are not relevant as regards that obligation.

(see para. 95, operative part 3)
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Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas – Obligations of Member States – Assessment of the impact of a project on a site – Meaning

(Council Directive 92/43, Art. 6(3) and (4))

Summary

It is clear from Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, that in every case of a plan or project not directly connected with or necessary to the management of a site, but likely to have a significant effect thereon, either individually or in combination with other plans and projects, the competent authorities are required to carry out an appropriate assessment in that respect. It is only on completion of that assessment, which must allow a detailed analysis which satisfies the conservation objectives of the site in question, and in the light of the conclusions on the implications for the site in question of the plan or project that the competent authorities adopt a decision on it. Those authorities, when taking their decision, agree to the plan or project only after having ascertained that the planned operation does not adversely affect the integrity of the site concerned. Furthermore, those authorities must, if appropriate, obtain the opinion of the general public on that subject.

However, the examination laid down in Article 6(4) must be undertaken only where the plan or project must, despite the negative conclusions resulting from the assessment required under Article 6(3) and in the absence of alternative solutions, nevertheless be carried out for imperative reasons of overriding public interest.

Therefore, having regard to the particular characteristics of each of the stages referred to in Article 6, it must be held that the various requirements set out in Article 6(4) cannot constitute elements that the competent national authorities are obliged to take account of where they carry out an appropriate assessment provided for in Article 6(3).

(see paras 22-26, 28)
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Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal for the purposes of Article 234 EC — Meaning — ‘Epitropi Antagonismou’ (Greek Competition Commission) — Excluded

(Art. 234 EC)

Summary

In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. In addition, a body may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.

The Epitropi Antagonismou (Greek Competition Commission) does not satisfy those criteria. First of all, it is subject to the supervision of the Minister for Development, which implies that that minister is empowered, within certain limits, to review the lawfulness of its decisions. Next, even though its members enjoy personal and operational independence, there are no particular safeguards in respect of their dismissal or the termination of their appointment, which does not appear to constitute an effective safeguard against undue intervention or pressure from the executive on those members. In addition, its President is responsible for the coordination and general policy of its secretariat and is the supervisor of the personnel of that secretariat, with the result that, by virtue of the operational link between the Epitropi Antagonismou, a decision-making body, and its secretariat, a fact-finding body on the basis of whose proposal it adopts decisions, the Epitropi Antagonismou is not a clearly distinct third party in relation to the State body which, by virtue of its role, may be akin to a party in the course of competition proceedings. Finally, a competition authority such as the Epitropi Antagonismou is required to work in close cooperation with the Commission and may, pursuant to Article 11(6) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, be relieved of its competence by a decision of the Commission, with the consequence that the proceedings initiated before it will not lead to a decision of a judicial nature.

(see paras 29-37)
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International agreements — EEC-Turkey Association Agreement — Association Council established by the EEC-Turkey Association Agreement — Decision No 1/80 — Freedom of movement for persons — Workers — Access by Turkish nationals duly registered as belonging to the labour market of a Member State to paid employment of their choice in that Member State and the corresponding residence permit – Limitation of rights on the ground of prolonged absence from the labour market as a result of imprisonment — Not permissible

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 6(1), and Art. 14(1))

Summary

A Turkish national who, after four years of legal employment, enjoys the right of free access to any paid employment of his choice under the third indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council does not forfeit that right because he is not in employment during his imprisonment, even for several years, if his absence from the labour market of the host Member State is only temporary.

The employment rights conferred by that provision on the person concerned and the concomitant right of residence may be limited only on grounds of public policy, public security and public health pursuant to Article 14(1) of Decision No 1/80, or on account of the fact that the Turkish national concerned has failed to find new paid employment within a reasonable time after his release.

(see para. 25, operative part)