ddrg/super_eurlex huggingface dataset:
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1. Preliminary rulings – Reference to the Court – Conformity of the decision to refer with the rules of national law governing the organisation of the courts and their procedure, including those on international jurisdiction – Not a matter for the Court to determine

(Art. 234 EC; Convention of 27 September 1968)

2. Free movement of capital – Restrictions on the acquisition of immovable property – Scheme for notification of the acquisition of immovable property – Retroactive invalidity of the transaction if declaration is submitted late – Not permissible – Justification – None – Breach of the principle of proportionality

(Art. 56(1) EC)

Summary

1. Under the procedure laid down in Article 234 EC, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure.

Nor is it for the Court to examine whether the matter was brought before the national court in compliance with the rules on jurisdiction laid down by the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, unless the conditions for applying those rules are the actual subject of the reference for a preliminary ruling.

The Court must abide by the decision of a court of a Member State requesting a preliminary ruling in so far as that decision has not been overturned in any appeal procedures provided for by national law.

(see paras 30-32)

2. Article 56(1) EC preludes the application of national legislation on the acquisition of real property making the effectiveness of transactions subject to the submission of a declaration by the purchaser under which the mere fact that the declaration of acquisition is submitted after the due date results in the retroactive invalidity of the property transaction concerned.

It is true that a prior declaration system, when coupled with appropriate legal instruments, may in fact constitute a measure proportionate to the public interest objective pursued designed to maintain, with a view to town and country planning, a permanent population and economic activity independent of the tourist sector by introducing restrictions on the establishment of second homes in a particular geographical area. However, the retroactive annulment of the property transaction is not a proportionate penalty where it is imposed automatically, following the mere passing of the time-limit for submitting the requisite declaration, irrespective of the reasons for its being late, and for no reason deriving from infringement of the applicable substantive rules, radically calls into question an agreement expressing the intentions of the parties and cannot therefore reflect the requirements of legal certainty, which are particularly important in relation to property acquisitions.

(see paras 46, 52-56, 62, operative part)
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International agreements – EEC-Turkey Association Agreement – Association Council set up by the EEC-Turkey Association Agreement – Decision No 1/80 – Family reunification – Members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State

(Decision No 1/80 of the EEC-Turkey Association Council, Arts 7, second para., and 14(1))

Summary

The child, who has reached the age of majority, of a Turkish migrant worker who has been legally employed in a Member State for more than three years, and who has successfully finished a vocational training course in that State and satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council does not lose the right of residence that is the corollary of the right to respond to any offer of employment conferred by that provision except in the circumstances laid down in Article 14(1) of that provision, namely on grounds of public policy, public security or public health, or when he leaves the territory of the host Member State for a significant length of time without legitimate reason.

(see paras 21, 29, operative part)
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1. Tax provisions – Harmonisation of legislation – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13(C))

2. Tax provisions – Harmonisation of legislation – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13(B)(b), and (C)(a))

Summary

1. Member States, when giving their taxable persons the right to opt for taxation under Article 13(C) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, may make a distinction by reference to types of transactions or groups of taxable persons provided that they observe the general objectives and principles of the Sixth Directive, in particular the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for.

(see para. 35, operative part 1)

2. It is for the national court to determine whether national legislation which, by exempting generally the transactions of non-profit-making sports clubs, restricts their right to opt for taxation of leasing and letting transactions exceeds the discretion conferred on the Member States, having regard in particular to the principle of fiscal neutrality and the requirement of correct, straightforward and uniform application of the exemptions provided for.

Since Article 13(C) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes does not specify on what conditions and by what means the scope of this right of option for taxation of leasing and letting transactions may be restricted, it is for each Member State to specify, in its national law, the scope of this right of option and to lay down the rules pursuant to which certain taxable persons may benefit from the right. Nevertheless, Article 13(C) of the Sixth Directive does not confer upon the Member States the right to place conditions on or to restrict in any manner whatsoever the exemptions provided for by part B of that Article 13, but merely reserves the right to the Member States to allow, to a greater or lesser degree, persons entitled to those exemptions to opt for taxation themselves, if they consider that it is in their interest to do so.

(see paras 42-43, 49, operative part 2)
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1. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653

(Council Directive 86/653, Arts 17(2) and 19)

2. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653

(Council Directive 86/653, Art. 17(2))

Summary

1. Article 19 of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that the indemnity for termination of contract which results from the application of Article 17(2) of the Directive cannot be replaced, pursuant to a collective agreement, by an indemnity determined in accordance with criteria other than those prescribed by Article 17, unless it is established that the application of such an agreement guarantees the commercial agent, in every case, an indemnity equal to or greater than that which results from the application of Article 17.

(see paras 25, 27, 36, operative part 1)

2. Although the system established by Article 17 of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents is mandatory and prescribes a framework, it does not give any detailed indications as regards the method of calculation of the indemnity for termination of contract to which the commercial agent may be entitled.

Within the framework prescribed by Article 17(2), the Member States enjoy a margin of discretion which they may exercise, in particular, in relation to the criterion of equity.

(see paras 34, 36, operative part 2)
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Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 77/187

(Council Directive 77/187, Art. 3(1))

Summary

Article 3(1) of 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 a situation where the contract of employment refers to a collective agreement binding the transferor, that the transferee, who is not party to such an agreement, is not bound by collective agreements subsequent to the one which was in force at the time of the transfer of the business.

The wording of the directive does not in any way indicate that the Community legislature intended that the transferee be bound by collective agreements other than the one in force at the time of the transfer and, consequently, that the terms and conditions be subsequently amended through the application of a new collective agreement, to which the transferee is not party, concluded after the transfer. Such an assessment is consistent with the objective of the directive, which is merely to safeguard the rights and obligations of employees in force on the day of the transfer; it was not intended to protect mere expectations to rights and, therefore, hypothetical advantages flowing from future changes to collective agreements, by disregarding the interests of the transferee, who must be in a position to make the adjustments and changes necessary to carry on his operations.

(see paras 29, 31, 37, operative part)
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1. Approximation of laws – Uniform laws – Industrial and commercial property – Patent right – Supplementary protection certificate for medicinal products

(Council Regulation No 1768/92, Art. 1(b))

2. Approximation of laws – Uniform laws – Industrial and commercial property – Patent right – Supplementary protection certificate for medicinal products

(Council Regulation No 1768/92, Art. 1(b))

Summary

1. In the absence of any definition of the concept of ‘active ingredient’ of a medicinal product in Regulation No 1768/92 concerning the creation of a supplementary protection certificate for medicinal products, the meaning and scope of those terms must be determined by considering the general context in which they are used and their usual meaning in everyday language.

(see para. 17)

2. Article 1(b) of Council Regulation No 1768/92 concerning the creation of a supplementary protection certificate for medicinal products must be interpreted so as not to include in the concept of ‘combination of active ingredients of a medicinal product’ a combination of two substances, only one of which has therapeutic effects of its own for a specific indication, the other rendering possible a pharmaceutical form of the medicinal product which is necessary for the therapeutic efficacy of the first substance for that indication.

(see para. 31, operative part)
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Freedom of movement for persons – Freedom of establishment – Freedom to provide services

(Arts 43 EC, 49 EC and 86 EC)

Summary

Articles 43 EC, 49 EC and 86 EC, and the principles of equal treatment, non‑discrimination on grounds of nationality and transparency do not preclude national legislation which allows a public authority to award a contract for the provision of a public service directly to a company of which it wholly owns the share capital, provided that the public authority exercises over that company control comparable to that exercised over its own departments and that that company carries out the essential part of its activities with the controlling authority.

(see para. 33, operative part)
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Freedom of movement for persons – Freedom of establishment – Fiscal legislation

(EC Treaty, Art. 52 (now, after amendment, Article 43 EC))

Summary

Article 52 of the EC Treaty (now, after amendment, Article 43 EC) precludes national legislation which does not allow a person with restricted tax liability to deduct from his taxable income, as special expenditure, the costs incurred by him in obtaining tax advice for the purpose of preparing his tax return, in the same way as a person with unrestricted tax liability.

Costs incurred in obtaining tax advice are linked directly to the income taxed in that Member State, with the result that they affect in the same way the income received by all taxable persons whether resident or non-resident.

(see paras 22, 26, operative part)
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1. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk

(Commission Regulation No 536/93, Art. 7)

2. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk

(Commission Regulation No 536/93, Art. 7)

Summary

1. The first sentence of Article 7(1) of Regulation No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as conferring discretion on a Member State to lay down rules, in so far as is necessary, imposing on producers of milk established in its territory supplementary obligations to keep records which are more extensive than the obligations under Article 7(1)(f). In exercising that discretion, the Member State must comply with the general principles of Community law.

(see para. 42, operative part 1)

2. Under the additional levy scheme for milk established by Regulations Nos 3950/92 and 536/93, Community law does not preclude legislation which requires milk producers to keep records of the quantity of butter produced and the use that it has been put to, even where the butter has been destroyed or used as feeding stuff, where, in the Member State concerned, it is found to be difficult to monitor effectively, on the basis of the Community requirements alone, the accuracy of statements of direct sales drawn up by producers.

(see para. 49, operative part 2)
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1. Fisheries – Common structural policy – Community system of fishing licences

(Council Regulations No 3690/93, Art. 5, and No 3699/93, Art. 8)

2. Fisheries – Common structural policy – Community system of fishing licences

(Council Regulations No 3690/93, Art. 5, and No 3699/93, Art. 8)

Summary

1. The phrase ‘definitive withdrawal from fishing activities’ is defined neither by Article 5 of Regulation No 3690/93 establishing a Community system laying down rules for the minimum information to be contained in fishing licences nor by that regulation as a whole. It is, however, defined by Regulation No 3699/93 laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and marketing of its products and more precisely by Article 8(2) thereof, according to which measures to stop vessels’ fishing activities permanently may include, inter alia, permanent transfer to a non-Member State, provided such transfer is not likely to infringe international law or affect the conservation and management of marine resources.

Although the purpose of those two regulations is different, there is nothing to indicate that that definition applies exclusively to Regulation No 3699/93 and that it cannot be used in the context of other instruments of secondary legislation relating to the sphere of fishing policy. Moreover, Regulation No 3699/93, which defines the concept, was adopted after Regulation No 3690/93, the Community legislature thus having knowingly intended to choose the same expression as that already used in Regulation No 3690/93.

Accordingly, there is nothing to preclude that definition being used in the context of the implementation of Article 5 of Regulation No 3690/93 regarding the temporary or definitive suspension of fishing licences.

(see paras 29, 31-33)

2. The wording of Article 5 of Regulation No 3690/93 establishing a Community system laying down rules for the minimum information to be contained in fishing licences does not as such prohibit fishing capacity made available by the transfer of vessels to a non-Member State from being used to issue new fishing licences, since that article merely requires the flag Member State to withdraw the fishing licences relating to vessels which are subject to definitive withdrawal from fishing activities. Moreover, Article 8 of Regulation No 3699/93 laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and marketing of its products lays down, inter alia, what the measures to stop vessels’ fishing activities permanently may include and requires vessels deleted from the register to be excluded from fishing in Community waters. It does not, however, follow from that provision that the fishing capacity made available in the national register of fishing vessels by the permanent transfer of vessels to a non-Member State should not be used to issue new fishing licences

(see paras 43-44)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Economic activities within the meaning of Article 4(1) and (2) of the Sixth Directive

(Council Directive 77/388, Art. 4(1) and (2)

Summary

Article 4(1) and (2) of the 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 issuing of licences, such as third generation mobile telecommunications licences known as ‘UMTS’, by auction by the national regulatory authority responsible for spectrum assignment of the rights to use telecommunications equipment does not constitute an economic activity within the meaning of that provision and, consequently, does not fall within the scope of that directive.

Such an activity constitutes a necessary precondition for the access of economic operators to the mobile telecommunications market and cannot constitute participation in that market by the competent national authority. Only those operators, who are the holders of the rights granted, operate on the relevant market by exploiting the property in question for the purpose of obtaining income therefrom on a continuing basis.

Therefore, in granting such authorisations, the competent national authority is not participating in the exploitation of property, consisting in the said user rights, for the purpose of obtaining income therefrom on a continuing basis. By means of that allocation procedure, that authority exclusively carries out the activity of controlling and regulating the use of the electromagnetic spectrum which has been expressly delegated to it.

Furthermore, the fact that the issuing of the licences in question gives rise to a payment cannot affect the legal status of that activity.

(see paras 36, 38-39, 43, operative part)
Case C-109/04

Karl Robert Kranemann

v

Land Nordrhein-Westfalen

(Reference for a preliminary from the Bundesverwaltungsgericht)

(Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Freedom of movement for workers – Civil servant undergoing preparatory practical training – Practical training completed in another Member State – Reimbursement of travel expenses limited to the domestic stretch of the journey)

Opinion of Advocate General Geelhoed delivered on 27 January 2005

Judgment of the Court (First Chamber), 17 March 2005.

Summary of the Judgment

Freedom of movement for persons – Workers – Equal treatment – Preparatory practical training – Reimbursement of travel expenses limited to the domestic stretch of the journey – Not permissible

(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC))

Article 48 of the Treaty (now, after amendment, Article 39 EC) precludes a national measure which grants a person who has completed a practical training period for certain jobs under conditions of genuine and effective activity as an employed person in a Member State other than his Member State of origin the right to reimbursement of travel expenses only up to the amount incurred in respect of the domestic stretch of the journey, while providing that, if such an activity were carried out on national territory, all the travel costs would be reimbursed.

(see para. 36, operative part)
Judgment of the Court (Second Chamber) of 23 February 2006 – Commission v Spain

(Case C-205/04)

Failure of a Member State to fulfil obligations – Freedom of movement for workers – Post in the public service – Failure to take account of seniority and professional experience acquired in the public service of other Member States – Article 39 EC – Article 7 of Regulation (EEC) No 1612/68

Freedom of movement for workers – Workers – Equal treatment (Art. 39 EC; Council Regulation No 1612/68, Art. 7) (see paras 14-19, operative part)

Re:

Failure by a Member State to fulfil obligations – Article 39 EC and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition, 1968 (II), p. 475) – Access to the Spanish civil service – Obligation to recognise, for financial purposes, periods of employment by Community citizens in the civil service of another Member State

Operative part:

The Court:

1. Declares that, by failing to adopt legislative provisions which expressly provide, in respect of the Spanish civil service, for account to be taken, for financial purposes, of previous periods of employment in the public service of another Member State, the Kingdom of Spain has failed to fulfil its obligations under Article 39 EC and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community;
Judgment of the Court (Seventh Chamber) of 19 April 2007 – Spain v Council

(Case C‑134/04)

Fisheries – Regulation (EC) No 2287/2003 distributing catch quotas among Member States – Act of Accession of Spain – End of the transitional period – Requirement of relative stability – Principle of non-discrimination – New fishing opportunities

1. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Prohibition (Act of Accession of 1985; Council Regulation No 2287/2003) (see paras 35-38)

2. Accession of new Member States – Spain – Fisheries (Act of Accession of 1985, Arts 154 to 166; Council Regulation No 2287/2003) (see paras 44-45)

3. Fisheries – Conservation of the resources of the sea – System of fishing quotas (see para. 46)

Re:

Annulment in part of Council Regulation (EC) No 2287/2003 of 19 December 2003 fixing for 2004 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2003 L 344, p. 1) in so far as new fishing opportunities in the North Sea and in the Baltic are not allocated having regard to the interests of Spain despite the end of the transitional regime – Discrimination – Application of Article 20(2) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59).

Operative part

The Court:

Dismisses the action;

Orders the Kingdom of Spain to pay the costs;