ddrg/super_eurlex huggingface dataset:
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13A(1)(c))

Summary

Article 13A(1)(c) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that it confers on the Member States the discretion to define the paramedical professions and the medical care coming within the scope of such professions for the purpose of the exemption laid down by that provision. However, the Member States must, in the exercise of that discretion, comply with the objective pursued by the said provision, which is to ensure that the exemption applies solely to services provided by persons with the required professional qualifications, and the principle of fiscal neutrality.

National legislation which excludes the profession of psychotherapist from the definition of the paramedical professions is contrary to the said objective and principle only to the extent that psychotherapeutic treatments would, if carried out by psychiatrists, psychologists or any other medical or paramedical profession, be exempt from value added tax, whereas, if carried out by psychotherapists, they can be regarded as being of equivalent quality having regard to the professional qualifications of the latter, a matter which it is for the referring court to determine.

National legislation which excludes certain specific medical care activities, such as treatments using disturbance field diagnostics carried out by physiotherapists, from the definition of that paramedical profession is contrary to the said objective and principle only to the extent that such treatments would, if carried out by doctors or dentists, be exempt from value added tax, whereas, carried out by physiotherapists, they can be regarded as being of equivalent quality having regard to the professional qualifications of the latter, a matter which it is for the referring court to determine.

(see para. 51, operative part)
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Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty levied on capital companies

(Council Directive 69/335, Art. 7(1)(b) and (bb)

Summary

Article 7(1)(b) and (bb) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directives 73/79 and 85/303, must be interpreted as meaning that, where a first capital company, within five years after the acquisition of shares in a second capital company in the course of a share merger that is exempt from capital duty, ceases to hold those shares because the second company has itself merged with a third capital company and has, as a result, ceased to exist, the first company having acquired shares in the third company by way of consideration, the requirement to retain for a period of five years the shares initially acquired, laid down by subparagraph (bb) of the provision in question, is not transferred to the shares the first company holds in the third company. Where the second transaction, which, in the present case, is decisive, is an operation involving the restructuring of undertakings falling within Article 7(1)(b) of Directive 69/335, the obligation to retain shares acquired for a period of five years does not apply. That obligation applies only to transactions falling within Article 7(1)(bb) of the directive, namely, transactions involving the acquisition of shares representing at least 75% of the issued share capital of a capital company in consideration for the allocation of shares in the acquiring company.

In that regard, it is irrelevant that the second sentence of the second sub-subparagraph of Article 7(1)(bb) of the directive refers to a ‘transfer’ of shares held as a result of a transaction that is exempt from capital duty, whereas, where a merger is involved, the company acquired ceases to exist, so that it is not possible to speak of a disposal of shares in the literal sense. The wording of that provision encompasses a merger transaction by way of acquisition as a result of which the shares in the acquired company become extinct and the holders of those shares receive in exchange shares in the acquiring company.

(see paras 30, 36, 40-41, 45, 47, operative part 1-2)
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1. Agriculture – Common organisation of the markets – Oils and fats – Olive oil – Marketing standards

(Commission Regulation No 1019/2002, as amended by Regulation No 1176/2003, Art. 2, first para.)

2. Agriculture – Common organisation of the markets – Oils and fats – Olive oil – Marketing standards

(Commission Regulation No 1019/2002, as amended by Regulation No 1176/2003, Art. 2, first para.)

Summary

1. Regulation No 1019/2002 on marketing standards for olive oil, as amended by Regulation No 1176/2003, and in particular the first paragraph of Article 2 thereof, which provides that olive oils and olive-pomace oils are to be presented to the final consumer in packaging of a maximum capacity of five litres, which is to be fitted with an opening system that can no longer be sealed after the first time it is opened and which must also be labelled in accordance with certain specific rules relating to those products, must be construed as meaning that olive oils and olive-pomace oils may be presented to the final consumer only in packaging which complies with the requirements laid down by that provision.

(see para. 33, operative part 1)

2. The first paragraph of Article 2 of Regulation No 1019/2002 on marketing standards for olive oil, as amended by Regulation No 1176/2003, which provides that olive oils and olive-pomace oils are to be presented to the final consumer in packaging of a maximum capacity of five litres, which is to be fitted with an opening system that can no longer be sealed after the first time it is opened and which must also be labelled in accordance with certain specific rules relating to those products, is to be construed as prohibiting a method of marketing, such as the so-called ‘bag in the box’ method, which does not meet the conditions laid down by that provision. Owing to the fact the olive oil and olive-pomace oil has to be decanted, at the place of purchase, from a container which is open or which is to be opened into a receptacle purchased or brought by the final consumer, such a method of marketing does not meet the condition set out in the first paragraph of Article 2 relating to an appropriate opening system, which requires, in order to guarantee the authenticity of the olive oil, that the packaging be able to be opened by the final consumer himself.

(see paras 40-42, 45, operative part 2)
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Social policy – ETUC, UNICE and CEEP framework agreement on fixed-term work – Directive 1999/70

(Council Directive 1999/70, Annex, clauses 1(b) and 5)

Summary

The framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not in principle precluding national legislation which, where there is abuse arising from the use of successive fixed-term employment contracts or relationships by a public-sector employer, precludes their being converted into contracts of indeterminate duration, even though such conversion is provided for in respect of employment contracts and relationships with a private-sector employer, where that legislation includes another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts by a public-sector employer.

(see para. 42, operative part)
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Free movement of capital – Restrictions

(EC Treaty, Art. 73b(1) (now Art. 56(1) EC))

Summary

Article 73b(1) of the EC Treaty (now Article 56(1) EC) does not preclude legislation of a Member State, such as Belgian tax legislation, which, in the context of tax on income, makes dividends from shares in companies established in the territory of that State and dividends from shares in companies established in another Member State subject to the same uniform rate of taxation, without providing for the possibility of setting off tax levied by deduction at source in that other Member State.

In circumstances such as those of the present case, the adverse consequences which might arise from the application of an income tax system such as the Belgian system at issue in the main proceedings result from the exercise in parallel by two Member States of their fiscal sovereignty. Community law, in its current state and in a situation such as that in the main proceedings, does not lay down any general criteria for the attribution of areas of competence between the Member States in relation to the elimination of double taxation within the Community. Consequently, it is for the Member States to take the measures necessary to prevent double taxation situations by applying, in particular, the apportionment criteria followed in international tax practice in the context of double taxation conventions.

(see paras 20-24, operative part)
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Freedom of movement for persons – Workers – Equal treatment

(Art. 39 EC; Council Regulation No 1612/68, Art. 7)

Summary

A Member State which fails to take into account the professional experience and seniority gained in the exercise of a comparable activity within the public administration of another Member State by a Community worker employed in the national civil service fails to fulfil its obligations under Article 39 EC and Article 7(1) of Regulation No 1612/68 on freedom of movement for workers within the Community.

(see para. 22, operative part)
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Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action

(Art. 226 EC)

Summary

The reasoned opinion and the action, referred to in Article 226 EC, must set out the complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged.

An action for failure to fulfil obligations which is founded on contradictory arguments, and does not therefore satisfy those requirements of coherence and precision, must be dismissed as inadmissible.

(see paras 21, 25-26)
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Officials of the European Communities – Action – Request within the meaning of Article 90(1) of the Staff Regulations – Definition (Staff Regulations, Art. 90(1) (see para. 37)

2. Officials of the European Communities – Action – Act adversely affecting an official – Definition (Staff Regulations, Art. 91) (see paras 42, 44)
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Social security for migrant workers – Applicable legislation – Workers posted to a Member State other than that of their employer’s establishment

(Council Regulations No 1408/71, Art. 14(1)(a), and No 574/72, Art. 11(1)(a))

Summary

An E 101 certificate issued under Article 11(1)(a) of Regulation No 574/72 laying down the procedure for implementing Regulation No 1408/71, in the version amended and updated by Regulation No 2001/83, as amended by Regulation No 2195/91, binds the competent institution and the courts of the Member State in which workers are posted, as long as it has not been withdrawn or declared invalid by the authorities of the Member State which issued it.

Consequently, a court of the host Member State of such workers is not entitled to scrutinise the validity of an E 101 certificate as regards the certification of the matters on the basis of which such a certificate was issued, in particular the existence of a direct relationship, within the meaning of Article 14(1)(a) of Regulation No 1408/71, in the version amended and updated by Regulation No 2001/83, as amended by Regulation No 2195/91, read in conjunction with paragraph 1 of Decision No 128 of the Administrative Commission on Social Security for Migrant Workers of 17 October 1985 concerning the application of Articles 14(1)(a) and 14b(1) of Regulation No 1408/71, between the undertaking established in a Member State and the workers which it has posted to another Member State, during the period of their posting.

(see para. 33, operative part)
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1. Free movement of goods – Trade with non-member countries – Procedure for processing under customs control

(Council Regulation No 2913/92, Art. 133(e))

2. Preliminary rulings – Jurisdiction of the Court – Acts adopted by the institutions

(Art. 234 EC; Council Regulation No 2913/92, Art. 133(e))

3. Free movement of goods – Trade with non-member countries – Procedure for processing under customs control

(Council Regulation No 2913/92, Art. 133(e))

4. Free movement of goods – Trade with non-member countries – Procedure for processing under customs control

(Council Regulation No 2913/92, Art. 133(e); Commission Regulation No 2454/93, Art. 502(3))

Summary

1. The conclusions issued by the Customs Code Committee in the context of an application for authorisation for processing under customs control under Article 133(e) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, is not binding on national customs authorities when they are determining such an application.

(see para. 33, operative part 4)

2. The conclusions issued by the Customs Code Committee in the assessment of an application for processing under customs control under Article 133(e) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, cannot be examined within the framework of Article 234 EC.

(see para. 41, operative part 3)

3. Article 133(e) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, which lays down the economic conditions which must be fulfilled in order to grant authorisation for processing under customs control, refers to ‘the essential interests of Community producers of similar goods’. In that connection, in the assessment of an application for authorisation for processing under customs control under that provision, account must be taken not only of the market for the finished products but also the economic situation of the market for raw materials used to produce those products.

(see paras 47, 52, operative part 1)

4. The criteria to be taken into consideration when assessing ‘processing activities to be created or maintained’ within the meaning of Article 133(e) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, and Article 502(3) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 may include the criterion relating to the creation of a minimum number of jobs on account of the processing activities envisaged, but is not limited to that criterion. Those criteria depend on the nature of the processing activity concerned, and the national customs authority responsible for examining the economic conditions under those provisions must make an overall assessment of all the relevant factors, including those concerning the number of jobs created, the value of the investment made and the permanence of the activity envisaged.

(see para. 59, operative part 2)
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Approximation of laws – Misleading and comparative advertising – Directive 84/450

(Council Directive 84/450, Art. 3a(1)(g), as amended by Directive 97/55)

Summary

Under Article 3a(1)(g) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, the benefit of comparative advertising to consumers must necessarily be taken into account in determining whether an advertiser is taking unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor. On the other hand, the benefit an advertiser derives from comparative advertising, which, by reason of its very nature, is self-evident in all cases, cannot alone be determinative of whether the conduct of such an advertiser is lawful.

It follows that that provision must be interpreted as meaning that, by using in its catalogues the core element of a manufacturer’s distinguishing mark, namely a system of order numbers for its products, which is known in specialist circles, a competing supplier does not take unfair advantage of the reputation of that distinguishing mark.

(see paras 24-25, 27, operative part)
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1. Approximation of laws – Copyright and related rights – Rental right and lending right in respect of protected works – Directive 92/100

(Council Directive 92/100, Arts 1 and 5)

2. Actions for failure to fulfil obligations – Disregard of obligations under a decision or a directive – Pleas in defence

(Art. 226 EC)

Summary

1. A Member State which exempts all categories of public lending establishments from the obligation to pay remuneration to authors for public lending fails to fulfil its obligations under Articles 1 and 5 of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property.

Article 5(3) of that directive, pursuant to which Member States may exempt certain categories of establishments from the payment of the remuneration to authors for public lending referred to in Article 5(1), cannot be interpreted as allowing for total derogation from that obligation of remuneration, since the effect of such an interpretation would be to render Article 5(1) meaningless and thus deprive that provision of all effectiveness. The directive seeks to guarantee that authors and performers receive appropriate income and recoup the especially high and risky investments required particularly for the production of phonograms and films. The fact of exempting all categories of establishments which engage in such lending from the obligation laid down in Article 5(1) of the directive would deprive authors of remuneration with which they could recoup their investments, with inevitable repercussions for the creation of new works.

(see paras 23-25, 42, operative part)

2. A Member State cannot properly plead the unlawfulness of a directive or decision addressed to it as a defence in an action for a declaration that it has failed to implement that decision or comply with that directive.

(see para. 30)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13B(f))

Summary

Article 13B(f) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that the provision of call centre services to a telephone bookmaking organiser, which entails the staff of the supplier of those services accepting bets on behalf of the organiser, does not constitute a betting transaction within the meaning of that provision and cannot, therefore, qualify for the exemption from value added tax laid down by that provision.

In contrast to the betting transaction referred to in that provision, that activity alone cannot in any way be said to be characterised by the offer to customers placing bets of a chance of winning in consideration for accepting the risk of having to pay for winnings and cannot, therefore, be classified as a betting transaction within the meaning of that provision.

(see paras 26, 29, operative part)
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Citizenship of the European Union – Right of free movement and residence in the territory of the Member States – Social advantages

(Art. 18 EC)

Summary

Article 18(1) EC must be interpreted as precluding legislation of a Member State under which it refuses to grant to one of its nationals a benefit for civilian war victims solely on the ground that, at the time at which the application was submitted, the person concerned was resident, not in the territory of that Member State, but in the territory of another Member State.

The objective of limiting the obligation of solidarity with civilian war victims to those who had links with the population of the Member State concerned during and after the war, by means of a residence condition regarded as an expression of the extent to which those persons are connected to that society, may constitute an objective consideration of public interest capable of justifying a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union.

However, the setting of a residence criterion based solely on the date on which the application for the benefit is submitted is not a satisfactory indicator of the degree of attachment of the applicant to the society which is thereby demonstrating its solidarity with him, and therefore fails to comply with the principle of proportionality.

(see paras 31, 34-35, 37-40, operative part)
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Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation

(Council Directive 92/43, Arts 3(1) and 4(1))

Summary

Before a site is placed on the list of sites of Community importance adopted by the Commission in accordance with Article 4(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, Member States must take appropriate protective measures in order to maintain the ecological characteristics of the sites which appear on the national list transmitted to the Commission under Article 4(1) of that directive.

That appropriate protection scheme not only requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites, but also to take, in accordance with the provisions of national law, all the measures necessary to avoid such interventions.

The Commission must be sure of having available an exhaustive list of sites eligible as special areas of conservation, the drawing up of which is aimed at a coherent European ecological network. It follows from this that, at the time of the decision which the Commission is called upon to take, the sites identified by the Member States must reflect the situation on the basis of which the scientific evaluations of potential sites of Community importance have been carried out. If that were not the case, the Community decision-making process which is not only based on the integrity of the sites as notified by the Member States, but is also characterised by the ecological comparisons between the different sites proposed by the Member States, would run the risk of being distorted and the Commission would no longer be in a position to fulfil its duties in the area concerned.

Furthermore, in so far as, in accordance with the first part of Annex III to the directive, the ecological characteristics of a site identified by the competent national authorities must reflect a number of assessment criteria which are expressly listed there, Member States cannot authorise interventions which may pose the risk of seriously compromising the ecological characteristics of a site, as defined by those criteria. This is particularly the case when an intervention poses the risk either of significantly reducing the area of a site, or of leading to the disappearance of priority species present on the site, or, finally, of having as an outcome the destruction of the site or the destruction of its representative characteristics.

(see paras 41-42, 44-47, 51, operative part 1-2)