ddrg/super_eurlex huggingface dataset:
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Acts of the institutions - Directives - Implementation by the Member States - Need for complete transposition into national law - Fact that an activity referred to in a directive does not exist in a Member State - Irrelevant - Exception - Reasons of geography

(Art. 249 EC, third para.)

Summary

$$The fact that an activity referred to in a directive does not exist in a particular Member State cannot release that State from its obligation to adopt laws or regulations in order to ensure that all the provisions of the directive are properly transposed. It is only where transposition of a directive is pointless for reasons of geography that it is not mandatory.

( see paras 11, 13 )
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Convention on Jurisdiction and the Enforcement of Judgments - Special jurisdiction - Court for the place of performance of the contractual obligation - Obligation not to do something, applicable without geographical limit - Inapplicability of Article 5(1) of the Convention - Only Article 2 of the Convention applicable

(Convention of 27 September 1968, Arts 2 and 5(1), as amended by the Accession Convention of 1978)

Summary

$$The special jurisdictional rule in matters relating to a contract, laid down in Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, is not applicable where the place of performance of the obligation in question cannot be determined because it consists in an undertaking not to do something which is not subject to any geographical limit and is therefore characterised by a multiplicity of places for its performance. In such a case, jurisdiction can be determined only by application of the general criterion laid down in the first paragraph of Article 2 of that Convention.

( see para. 55, operative part )
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1. Agriculture - Common organisation of the markets - Beef and veal - Beef labelling system - Regulation No 820/97 - Prolongation - Legal basis - Regulation No 2772/1999 - Invalidity

(Council Regulations No 820/97, Art. 19, and No 2772/1999)

2. Actions for annulment - Judgment ordering annulment - Effects - Limits imposed by the Court - Invalidity of Regulation No 2772/1999

(Art. 231, second para., EC; Parliament and Council Regulation No 1760/2000; Council Regulations Nos 820/97 and 2772/1999)

Summary

1. By prolonging, by means of Regulation No 2772/1999 providing for the general rules for a compulsory beef labelling system, the validity of the rules relating to the voluntary labelling system set out in Regulation No 820/97, the Council has in fact altered the temporal scope of Regulation No 820/97. However, that regulation could only be amended on a legal basis equivalent to that on which it had been adopted, that is to say, on the basis of the Treaty itself, and in conformity with the decision-making process provided for by the Treaty. The Council was therefore wrong to take Article 19 of Regulation No 820/97 as the basis for adopting Regulation No 2772/1999 and accordingly was not competent to adopt Regulation No 2772/1999 on the basis of that provision, so that Regulation No 2772/1999 must be annulled.

( see paras 41-44 )

2. Even though Regulation No 2772/1999 providing for the general rules for a compulsory beef labelling system has been replaced in the interim by Regulation No 1760/2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Regulation No 820/97, its annulment could create a legal lacuna potentially affecting, in particular, decisions which the Member States may have taken in application of Regulation No 820/97 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products during the period covered by the extension of time provided for by Regulation No 2772/1999. For reasons of legal certainty, it is thus appropriate for the Court to have recourse to the power conferred on it by the second paragraph of Article 231 EC and to rule that the effects of those provisions of Regulation No 2772/1999 pursuant to which the Member States may have adopted decisions which could be affected by the annulment are to be regarded as definitive.

( see para. 48 )
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1. Procedure - Intervention - Plea of inadmissibility not raised by the defendant - Not admissible

(EC Statute of the Court of Justice, Art. 37)

2. Actions for failure to fulfil obligations - Commission's right to bring proceedings - Action for a declaration that a mixed agreement concluded by the Commission and the Member States has not been complied with - Berne Convention for the Protection of Literary and Artistic Works - Area falling within Community competence

(EC Treaty, Art. 228(7) (now, after amendment, Art. 300(7) EC); Protocol 28 to the EEA Agreement, Art. 5)

3. Actions for failure to fulfil obligations - Examination of the merits by the Court - Situation to be taken into consideration - Situation at the end of the period laid down in the reasoned opinion

(Art. 226 EC)

Summary

1. Under Article 37 of the Statute of the Court of Justice, an application to intervene must be limited to supporting the form of order sought by one of the parties. An intervener therefore has no standing to raise a plea of inadmissibility not set out in the form of order sought by the defendant.

( see paras 3, 5 )

2. The requirement of adherence to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971) which Article 5 of Protocol 28 to the Agreement on the European Economic Area imposes on the Contracting Parties comes within the Community framework in view of the fact that it features in an agreement concluded, pursuant to Article 228 of the Treaty (now, after amendment, Article 300 EC) by the Community, its Member States and non-member countries and relates to an area covered in large measure by the Treaty. The Commission is thus competent to assess compliance with that requirement, subject to review by the Court.

Mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements, as these are provisions coming within the scope of Community competence. It follows that, in ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement. The Berne Convention creates rights and obligations in areas covered by Community law, with the result that there is a Community interest in ensuring that all Contracting Parties to the Agreement on the European Economic Area adhere to that Convention.

( see paras 14-15, 19-20 )

3. Within the context of an action brought under Article 226 EC, the question whether there has been a failure to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion.

( see para. 21 )
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1. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption for certain services closely linked to sport or physical education supplied by non-profit-making organisations to persons taking part in those activities - Non-profit-making organisations - Definition - Optional condition providing for a prohibition on systematically aiming to make a profit - Scope

(Council Directive 77/388, Art. 13A(1)(m) and (2)(a), first indent)

2. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Supply of services for consideration - Definition - Sports facilities made available for a fixed annual subscription fee - Included

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

Summary

1. Article 13A(1)(m) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that the categorisation of an organisation as non-profit-making must be based on all the organisation's activities, including those which it provides by way of extension to the services covered by that provision.

That categorisation may be made even if the organisation systematically seeks to achieve surpluses, as long as those profits are not distributed as profits to its members but are used for the purposes of the provision of its services. The first part of the optional condition set out in the first indent of Article 13A(2)(a) of Directive 77/388, which provides that the organisations in question must not systematically aim to make a profit, is to be interpreted in the same way.

( see paras 21-22, 28, 35, operative part 1-2 )

2. Article 2(1) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, under which the supply of goods or services effected for consideration is subject to value added tax, is to be interpreted as meaning that the annual subscription fees of the members of a sports association can constitute the consideration for the services provided by the association, even though members who do not use or do not regularly use the association's facilities must still pay their annual subscription fees. There is a direct link between the subscription fees paid by members and the services which the association provides where those services are constituted by the making available to its members, on a permanent basis, of sports facilities and the associated advantages and not by particular services provided at the members' request.

( see paras 40, 42, operative part 3 )
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1. Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Exceptions - Supplementary company or inter-company pension schemes - Old-age benefits - Definition - Early retirement benefits and benefits intended to enhance the conditions of such retirement - Exclusion

(Council Directive 77/187, Art. 3(1), (2) and (3))

2. Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Transfer of obligations applicable in the event of the dismissal of an employee - Conditions and limitations - Obligations deriving from or implemented by statutory instruments - Not relevant

(Council Directive 77/187, Art. 3)

Summary

$$1. Early retirement benefits and benefits intended to enhance the conditions of such retirement, paid in the event of dismissal to employees who have reached a certain age, are not old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes within the meaning of Article 3(3) 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.

Given the general objective of safeguarding the rights of employees in the event of transfers of undertakings pursued by Directive 77/187 when it provides, in Article 3(1) and (2), for transfer to the transferee of the transferor's rights and obligations arising from a contract of employment, from an employment relationship or collective agreement, the exception to that rule provided for by Article 3(3) must be interpreted strictly. That exception can therefore apply only to the benefits listed exhaustively in that provision and they must be construed in a narrow sense.

( see paras 29 to 30, 32, operative part 1 )

2. On a proper construction of Article 3 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, the obligations applicable in the event of the dismissal of an employee, arising from a contract of employment, an employment relationship or a collective agreement binding the transferor as regards that employee, are transferred to the transferee subject to the conditions and limitations laid down by that article, regardless of the fact that those obligations derive from statutory instruments or are implemented by such instruments and regardless of the practical arrangements adopted for such implementation.

( see para. 40, operative part 2 )
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1. Approximation of laws - Package travel, package holidays and package tours - Directive 90/314 - Definition of the term package - Holidays organised by a travel agency at the request and according to the specifications of a consumer or a limited group of consumers - Included

(Council Directive 90/314, Art. 2(1))

2. Approximation of laws - Package travel, package holidays and package tours - Directive 90/314 - Term pre-arranged combination - Combination of services made at the time of the conclusion of the contract between the travel agency and the consumer - Included

(Council Directive 90/314, Art. 2(1))

Summary

1. The term package used in Article 2(1) of Directive 90/314 on package travel, package holidays and package tours, must be interpreted so as to include holidays organised by travel agents, at the request of and in accordance with the specifications of a consumer or limited group of consumers. According to the definition of package given in Article 2(1) of the directive, which is designed amongst other things to protect consumers who buy package holidays, it is enough if, first, the combination of tourist services sold by a travel agency at an inclusive price includes two of the three services referred to in that paragraph and, second, that service covers a period of more than 24 hours or includes overnight accommodation. There is nothing in that definition to suggest that holidays organised at the request of and in accordance with the specifications of a consumer or a defined group of consumers cannot be regarded as package holidays within the meaning of the Directive. That interpretation is reinforced by the directive, which provides that among the elements to be included in a contract covered by the directive are special requirements which the consumer has communicated to the organiser or retailer when making the booking, and which both have accepted.

( see paras 13-16, operative part 1 )

2. As the definition of package referred to in Article 2(1) of Directive 90/314 on package travel, package holidays and package tours includes holidays organised in accordance with the consumer's specifications, the term pre-arranged combination used in that provision necessarily covers cases where the combination of tourist services is the result of the wishes expressed by the consumer up to the moment when the parties reach an agreement and conclude the contract. The term pre-arranged combination used in Article 2(1) of Directive 90/314 must be interpreted so as include combinations of tourist services put together at the time when the contract is concluded between the travel agency and the consumer.

( see paras 19-20, operative part 2 )
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Approximation of laws — Trade marks — Directive 89/104 — Trade mark with a reputation — Protection of the trade mark extended to non-similar products or services (Articles 4(4)(a) and 5(2) of the Directive) — Member States also entitled to provide such protection in the case of use of a sign for identical or similar products or services — (Council Directive 89/104, Arts 4(1)(b), 4(a), 5(1) and (2))

Summary

Articles 4(4)(a) and 5(2) of First Directive 89/104 relating to trade marks, which allow the Member States to provide specific protection for registered trade marks with a reputation in cases where a later mark or sign, which is identical with or similar to the registered mark, is intended to be used or is used for goods or services which are not similar to those covered by the registered mark, are to be interpreted as also entitling the Member States to provide such protection where a later mark or sign is intended to be used or is used for goods or services identical with or similar to those covered by the mark.

Those provisions cannot be given an interpretation which would lead to marks with a reputation having less protection where a sign is used for identical or similar goods or services than where a sign is used for non-similar goods or services.

see paras 25, 30 and operative part
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Approximation of laws — Trade marks — Directive 89/104 — Signs capable of constituting a trade mark — Signs not capable of being perceived visually — Inclusion — Condition — Signs capable of being represented graphically — Olfactory signs — (Council Directive 89/104, Art. 2)

Summary

Article 2 of Directive 89/104 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it can be represented graphically, particularly by means of images, lines or characters, and that the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective. In respect of an olfactory sign, the requirements of graphic representability are not satisfied by a chemical formula, by a description in written words, by the deposit of an odour sample or by a combination of those elements.

see paras 55, 73, operative part 1-2
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1. Own resources of the European Communities — Repayment or remission of import duties — Remission of compensatory interest on the amount of duties owing — Powers of the Commission — Not included — (Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Arts 905 and 907)

2. Own resources of the European Communities — Post-clearance recovery of import or export duties — Communication of the amount of duties to the debtor — Limitation period — Not included — (Council Regulation No 2913/92, Art. 221(3))

3. Own resources of the European Communities — Repayment or remission of import duties — Circumstances in which no deception or obvious negligence may be attributed to the person concerned — Concept of obvious negligence — (Council Regulation No 2913/92, Art. 239(1) and Art. 220)

Summary

1. The mere fact that a possible remission of customs duties following a decision by the Commission on the basis of Articles 905 and 907 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code has consequences for the compensatory interest applied on those duties by the competent customs authorities does not in any way imply that the Commission is empowered to proceed with the remission of that interest. The Commission is competent only to take a decision on the remission of import duties and may not rule on compensatory interest.

see paras 48-49

2. Under Article 221(3) of Regulation No 2913/92 establishing the Community Customs Code, communication to the debtor of the amount of duty owed is not to take place after the expiry of a period of three years from the date on which the customs debt was incurred, except where it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to determine the exact amount legally due.

It is for the Member States and their competent authorities to implement that rule; the Commission is not empowered to rule on the question whether the recovery procedure for the customs debt was carried out in accordance with that rule.

Thus, when it takes a decision on an application for remission of customs duties referred by a Member State following an application submitted by the debtor to the competent customs authorities, the Commission is obliged to examine the application in question as it is and may not question the time periods within which the debt recovery procedure was instituted by the customs authorities.

see paras 62, 64-65

3. In order to determine whether or not the debtor has demonstrated "obvious negligence" within the meaning of the second indent of Article 239(1) of Regulation No 2913/92 establishing the Community Customs Code, it is appropriate to apply by analogy the criteria used in the context of Article 220 of the Customs Code to ascertain whether or not an error committed by the customs authorities was detectable by a trader, that is, according to the complexity of the applicable rules, and the trader's experience and diligence.

see paras 92-93, 96, 98
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1. Environment — Waste — Regulation No 259/93 on shipments of waste — Competence of the authorities to which notification of a proposed shipment of waste is addressed to check classification (recovery or disposal) and to object to a shipment which is wrongly classified — Competence of the Member States to lay down general rules for classification — Conditions — (Council Regulation No 259/93, Art. 7(2))

2. Environment — Waste — Directive 75/442 — Annex II B — Distinction between a disposal operation and a recovery operation — Use of waste in cement kilns — Classification as a recovery operation — Conditions — (Council Directive 75/442, as amended by Commission Decision 96/350, Annex II B)

Summary

1. Under the system established by Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, all the competent authorities to which notification of a proposed shipment of waste is addressed must check that the classification by the notifier is consistent with the provisions of the regulation. If that classification is incorrect, those authorities must object to the shipment on the ground of that classification error, without reference to one of the specific provisions of the regulation setting out the objections which the Member States may raise. That system does not preclude Member States from laying down, in acts having general scope, criteria for distinguishing between a recovery operation and a disposal operation, provided that those acts put in place criteria for making that distinction which comply with the criteria laid down by Directive 75/442, as amended by Decision 96/350.

see paras 33-36

2. The combustion of waste constitutes a recovery operation under point R1 of Annex II B to Directive 75/442, as amended by Decision 96/350, where its principal objective is for the waste to fulfil a useful function as a means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function. In particular, the use of waste as a fuel in cement kilns may be classified as a recovery operation if the main purpose is to enable the waste to be used as a means of generating energy, it takes place in conditions which give reason to believe that it is indeed a means to generate energy, the greater part of the waste is consumed during the operation and the greater part of the energy generated is recovered and used.

It follows that, where the use of waste as a fuel meets the conditions laid down in point R1 of Annex II B to the directive, it must be classified as a recovery operation, without the need to take into consideration criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or whether or not the waste has been mixed.

see paras 41-47