ddrg/super_eurlex huggingface dataset:
Case C-195/03

Ministerie van Financiën

v

Merabi Papismedov and Others

(Reference for a preliminary ruling from the Hof van Beroep te Antwerpen)

(Community Customs Code – Presentation of goods to customs – Meaning – Cigarettes declared under the description ‘cookware’ – Incurrence of the customs debt on importation – Debtor of the customs debt)

Opinion of Advocate General Kokott delivered on 30 September 2004

Judgment of the Court (Sixth Chamber), 3 March 2005

Summary of the Judgment

1. Customs Union – Customs supervision – Scope – Submission of all goods introduced, whether lawfully or not, into the Community

(Council Regulation No 2913/92, Art. 4(13) and 37)

2. Customs Union – Incurrence of customs debt following the unlawful introduction of goods – Meaning of ‘unlawful introduction’ – Goods presented to customs under an incorrect designation – Included

(Council Regulation No 2913/92, Art. 202)

3. Customs Union – Incurrence of customs debt following the unlawful introduction of goods – Meaning of ‘debtor’ – Goods presented to customs under an incorrect designation – Determination by national court – Criteria

(Council Regulation No 2913/92, Art. 202(3))

1. It is clear from the combined effect of Articles 4(13) and 37 of Regulation No 2913/92 establishing the Community Customs Code that goods arriving in the Community are subject to customs supervision from the time of their introduction therein, whether it is lawful or in breach of Articles 38 to 41 or the second indent of the first paragraph of Article 177 of the Customs Code, which is what the supervising authorities must, by their controls, establish. It follows that the submission of goods to such supervision is not connected to the lawfulness of their introduction into that territory.

(see para. 22)

2. Goods presented to customs, for which a summary declaration was lodged and an external Community transit document validated, were not lawfully introduced into the customs territory of the Community if, in the documents lodged with the customs authorities, the goods were wrongly designated. In such cases, the customs debt is based on Article 202 of Regulation No 2913/92 establishing the Community Customs Code, which lays down the detailed rules on incurrence of the customs debt on the unlawful introduction of goods.

(see paras 32, 36, operative part 1, 2)

3. In order to determine who is the debtor of the customs debt in cases of lodging of a summary declaration or customs declaration under an incorrect designation, the national court must establish whether the person who lodged the summary declaration or the customs declaration was, because he stated an incorrect designation, responsible for the unlawful introduction of the goods. If such is not the case, it is for that court to consider whether, by that action, the person participated in the introduction of the goods whilst he was or should reasonably have been aware that it was unlawful.

(see para. 41, operative part 3)
Case C-15/03

Commission of the European Communities

v

Republic of Austria

(Failure of a Member State to fulfil obligations – Directive 75/439/EEC – Disposal of waste oils – Priority to processing by regeneration)

Opinion of Advocate General Tizzano delivered on 28 October 2004

Judgment of the Court (Second Chamber), 27 January 2005

Summary of the Judgment

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))

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)
Case C-491/03

Ottmar Hermann

v

Stadt Frankfurt am Main

(Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof)

(Indirect tax – Directive 92/12/EEC – Local tax on the supply of alcoholic beverages for immediate consumption on the premises)

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 11 January 2005

Judgment of the Court (First Chamber), 10 March 2005

Summary of the Judgment

Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 – Alcohol and alcoholic beverages – Tax on the supply of beverages for immediate consumption on the premises – Classification of tax not on products subject to excise duty but on the provision of services relating to such products – Need for that tax to pursue specific purposes – None

(Council Directive 92/12, Art. 3(2) and (3))

A tax which is levied, in a catering context, on the supply for consideration of alcoholic beverages for immediate consumption on the premises must be considered to be a tax on the supply of services relating to products subject to excise duty which cannot be characterised as a turnover tax for the purposes of the second subparagraph of Article 3(3) of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products.

In order to determine whether a tax applies to products subject to excise duty for the purposes of Article 3(2) of Directive 92/12 or, rather, to the services supplied in relation to such products for the purposes of the second subparagraph of Article 3(3), regard must be had to the predominant feature of the transaction on which it is imposed. A supply of alcoholic beverages in a catering context is characterised by an array of features and acts, of which the supply of the product itself is only one component and in which services predominate.

In addition, the ‘same proviso’ to which taxes falling within the scope of the second subparagraph of Article 3(3) are subject refers only to the condition set out in the first subparagraph of that paragraph, namely that such ‘taxes do not give rise to border-crossing formalities in trade between Member States’. The directive therefore does not require that the taxes concerned comply with the condition laid down in Article 3(2), namely that they be for a specific purpose.

(see paras 21, 27, 30, 33-34, operative part 1, 2)
Judgment of the Court (Fifth Chamber) of 26 January 2005 – Implants (International) Ltd v Commission

(Case C-279/03 OP)

Arbitration clause – Proceedings to have a judgment by default set aside – Reimbursement of an advance payment – Default interest

Procedure – Reference to the Court pursuant to an arbitration clause (Art. 238 EC) (see paras 25-35)

Re:

Application to set aside the judgment of the Court of 24 February 2005 in Case C‑279/03 Commission v Implants

Operative part:

The Court:

1. Dismisses the application by Implants (International) Ltd to set aside the judgment in Case C-279/03 Commission v Implants;
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Common flat-rate scheme for farmers – Scope – Operations which are neither a supply of agricultural products nor a supply of agricultural services – Excluded – Supplies of agricultural services – Meaning – Grant of hunting licences – Excluded

(Council Directive 77/388, Art. 25)

Summary

Article 25 of Sixth Directive 77/388, which provides that where the application to farmers of the normal value added tax scheme, or the simplified scheme provided for in Article 24, would give rise to difficulties, Member States may apply to farmers a flat-rate scheme, is to be interpreted as meaning that that scheme applies only to the supply of agricultural products and agricultural services, as defined in Article 25(2), and that other operations carried out by flat-rate farmers are subject to the general scheme under that directive.

In that regard, the fifth indent of Article 25(2) of the Directive, read together with Annex B thereto, is to be interpreted as meaning that the grant of hunting licences by a flat-rate farmer is not an agricultural service within the meaning of that directive. First of all, the grant of hunting licences is not expressly covered by those provisions, and nor does it fulfil the conditions laid down therein. Next, the common flat-rate scheme is an exception to the general scheme under the Sixth Directive and must therefore be applied only to the extent necessary to achieve its objective. Lastly, it would be contrary to the nature and purpose of that scheme to interpret the concept of ‘agricultural service’ as covering a licensing operation, such as the grant of hunting licences, which is not intended for agricultural purposes and which does not relate to equipment normally used in agricultural, forestry or fisheries undertakings.

(see paras 21, 26-27, 29, 31, operative part 1-2)
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Convention on Jurisdiction and the Enforcement of Judgments – Exclusive jurisdiction – Proceedings which have as their object tenancies of immovable property – Definition – Time-share in immovable property by virtue of a club membership contract – Exclusion

(Convention of 27 September 1968, Art. 16(1)(a))

Summary

Article 16(1)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Accession Conventions of 1978, 1982 and 1989, must be interpreted as meaning that it does not apply to a club membership contract which, in return for a membership fee which represents the major part of the total price, allows members to acquire a right to use on a time‑share basis immovable property of a specified type in a specified location and provides for the affiliation of members to a service which enables them to exchange their right of use.

(see para. 28, operative part)
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1. Approximation of laws – Foods – Regulation No 2065/2003 – Smoke flavourings – Legal basis – Article 95 EC – Measures for approximation – Discretion – Matter requiring evaluations relating to the safety of foods – Need to ensure, in the choice of harmonisation technique, a high level of protection of human health

(Art. 95 EC; European Parliament and Council Regulation No 2065/2003)

2. Approximation of laws – Foods – Regulation No 2065/2003 – Smoke flavourings – Legal basis – Article 95 EC – Harmonisation in several stages – Drawing up of a list of products authorised throughout the Community – Conditions

(Art. 95 EC; European Parliament and Council Regulation No 2065/2003)

Summary

1. By the expression ‘measures for the approximation’ in Article 95 EC the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the harmonisation technique most appropriate for achieving the desired result, in particular in fields which are characterised by complex technical features.

That discretion may be used in particular to choose the most appropriate harmonisation technique where the proposed approximation requires physical, chemical or biological analyses to be made and scientific developments in the field concerned to be taken into account. Such evaluations relating to the safety of products correspond to the objective imposed on the Community legislature by Article 95(3) EC of ensuring a high level of protection of health.

Consequently, Regulation No 2065/2003 on smoke flavourings used or intended for use in or on foods constitutes an appropriate harmonising measure, in that the matter harmonised requires such evaluations relating to the safety of products.

(see paras 45-46, 52)

2. Where the Community legislature provides for a harmonisation which comprises several stages, in particular where the harmonisation consists in drawing up a list of products authorised throughout the Community to the exclusion of all other products, two conditions must be satisfied. First, the legislature must determine in the basic act the essential elements of the harmonising measure in question. Second, the mechanism for implementing those elements must be designed in such a way that it leads to a harmonisation within the meaning of Article 95 EC. That is the case where the Community legislature establishes the detailed rules for making decisions at each stage of such an authorisation procedure, and determines and circumscribes precisely the powers of the Commission as the body which has to take the final decision.

Regulation No 2065/2003 on smoke flavourings used or intended for use in or on foods satisfies those two conditions, and may therefore be regarded as a harmonising measure within the meaning of Article 95 EC. It does not have the incidental effect of harmonising the conditions of the internal market, but is intended to approximate the laws, regulations and administrative provisions of the Member States in the field of smoke flavourings.

(see paras 47-49, 58-59, 64)
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Approximation of laws – Procedures for the award of public service contracts and procurement contracts in the water, energy, transport and telecommunications sectors – Directives 92/50 and 93/98 – Award of contracts – The most economically advantageous tender – Jury attaching specific weight to the subheadings of an award criterion set out in the contract documents – Lawfulness – Conditions

(Council Directives 92/50, Art. 36 and 93/38, Art. 34)

Summary

Article 36 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts and Article 34 of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors must be interpreted as meaning that Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents were prepared, provided that that decision :

– does not alter the criteria for the award of the contract set out in the contract documents;

– does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation;

– was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.

(see para. 32, operative part)
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1. International agreements – Agreements concluded by the Community – EC-Hungary Association Agreement

(EC-Hungary Association Agreement, Protocol 4, Arts 31(2), 32 and 33)

2. International agreements – Agreements concluded by the Community – EC-Hungary Association Agreement

(EC-Hungary Association Agreement, Protocol 4, Art. 33)

Summary

1. Articles 31(2) and 32 of Protocol 4 to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part, as amended by Decision No 3/96 of the Association Council between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part, are to be interpreted as meaning that the customs authorities of the State of import are bound to take account of judicial decisions delivered in the State of export on actions brought against the results of verification of the validity of goods movement certificates conducted by the customs authorities of the State of export, once they have been informed of the existence of those actions and the content of those decisions, regardless of whether the verification of the validity of the movement certificates was carried out at the request of the customs authorities of the State of import.

The fact that the dispute was not referred to the Association Committee pursuant to Article 33 of Protocol 4 cannot be used as a justification to derogate from the system of cooperation and not to respect the powers as allocated under the Association Agreement.

(see paras 32, 52, 54, operative part 1, 3)

2. The effectiveness of the abolition of the imposition of customs duties under the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part, as amended by Decision No 3/96 of the Association Council between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part, precludes administrative decisions imposing the payment of customs duties, taxes and penalties taken by the customs authorities of the State of import before the definitive result of actions brought against the findings of the subsequent verification have been communicated to them, when the decisions of the authorities of the State of export which initially issued the movement certificates EUR.1 have not been revoked or annulled.

This interpretation is not affected by the fact that the dispute was not referred to the Association Committee pursuant to Article 33 of Protocol 4 to that agreement.

(see paras 43, 52, 54, operative part 2-3)
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EAEC – Treaty – Scope

(Art. 31 EA; Council Directive 89/618, Art. 5)

Summary

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 essential national defence interests, activities falling within the military sphere are outside the scope of all of the provisions of the EAEC Treaty.

As the scope of provisions of secondary legislation cannot validly exceed that of their legal basis, the inapplicability of Article 31 EA, which provides the basis for Directive 89/618 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency, to military activities necessarily means that the directive does not apply to such activities.

In the case of the repair of a nuclear-powered submarine, where it is common ground that the source of the nuclear energy is of military origin, to accept that the obligation under Article 5 of the directive to inform the public who might be affected in the event of a radiological emergency about health protection measures that would apply is incumbent none the less on Member States would amount to recognising that the provisions of the EAEC Treaty concerning health and safety, in particular Article 31 EA, are different in scope from the other provisions of that Treaty.

(see paras 19, 23-24, 27, 29)
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1. Acts of the institutions – Regulations – Basic regulations and implementing regulations – Implementing powers conferred by the Council

(Council Decision 1999/468, Art. 2)

2. Acts of the institutions – Regulations – Basic regulations and implementing regulations – Implementing powers conferred by the Council

(European Parliament and Council Regulation No 2152/2003, Art. 17; Council Decision 1999/468, Art. 2(a) and (b))

Summary

1. Although the criteria laid down in Article 2 of Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission are not binding, where the Community legislature departs from those criteria in the choice of a committee procedure, it must give reasons for its choice.

(see para. 32)

2. According to the first subparagraph of Article 2(b) of Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission, the regulatory procedure should be chosen for measures of general scope designed to apply essential provisions of basic instruments. That concept must be contrasted with the concept of ‘management measures’ within the meaning of Article 2(a) of that decision. Management measures include, inter alia, those relating to the implementation of programmes with substantial budgetary implications. 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.

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), first, measures of individual application adopted for that purpose and, second, measures of general application closely linked to them and part of a framework sufficiently developed by the basic instrument itself.

In that regard, Regulation No 2152/2003 concerning monitoring of forests and environmental interactions in the Community contains the essential elements of the Forest Focus scheme. The Community legislature did not depart from the criteria set out in the first subparagraph of Article 2(b) of Decision 1999/468 by making the adoption of implementing measures for the Forest Focus programme subject to the regulatory procedure, since the basic regulation creates a wide and general framework for the scheme and does not lay down sufficient essential elements of that scheme to allow for the adoption of management measures within the meaning of Article 2(a) of that decision.

(see paras 34-35, 38, 41, 43-45)
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1. Social policy – Equal treatment for men and women in matters of social security –Directive 79/7

(Council Directive 79/7, Art. 4(1))

2. Preliminary rulings – Interpretation – Effect of interpretative judgments ratione temporis

(Art. 234 EC)

Summary

1. Article 4(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security is to be interpreted as precluding legislation which denies a person who, in accordance with the conditions laid down by national law, has undergone male-to-female gender reassignment entitlement to a retirement pension on the ground that she has not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law.

The scope of Directive 79/7 cannot thus be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of that directive is also such as to apply to discrimination arising from the gender reassignment of the person concerned.

(see paras 24, 38, operative part 1)

2. It is only exceptionally that, in application of a general principle of legal certainty which is inherent in the Community legal order, the Court may decide to restrict the right to rely upon a provision it has interpreted with a view to calling in question legal relations established in good faith.

Moreover, the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling.

(see paras 40-41)