ddrg/super_eurlex huggingface dataset:
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Keywords

Competition - Agreements, decisions and concerted practices - Selective distribution system - Permissibility under Community law - Consequences regarding the applicability of a rule of national law which makes the enforceability of a system against third parties conditional upon its being `impervious' - None

(EC Treaty, Art. 85; Commission Regulation No 123/85)

Summary

The imperviousness of a selective distribution system is not a condition for its validity under Community law. In order to appraise the lawfulness of an agreement under Article 85 of the Treaty, it is not necessary to enquire whether the conditions are fulfilled for that agreement to be capable of being enforced against third parties by means of an action for unfair competition.

It follows that a selective distribution system which is not impervious and cannot therefore, under national case-law on unfair competition, be enforced against third parties may be valid under Article 85(1) of the Treaty.

Accordingly, neither Article 85(1) of the Treaty nor, a fortiori, Article 85(3) thereof or Regulation No 123/85 on the application of Article 85(3) of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements is to be interpreted as precluding the application of national case-law on unfair competition under which a selective distribution system, even if enjoying exemption under those provisions, is not enforceable against third parties unless it is impervious.
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Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Deduction of input tax - Obligations of the taxable person - Possession of an invoice - Invoice - Definition - Credit note issued by the recipient of the goods or services - Included - Conditions - Amount stated not contested by the taxable person - No effect

(Council Directive 77/388, Arts 21(1)(c) and 22(3)(c))

Summary

Article 22(3)(c) of the Sixth Directive 77/388 on the harmonization of the laws of the Member States relating to turnover taxes authorizes Member States to regard a credit note issued by the recipient of the goods or services as a `document serving as an invoice', where it includes the information prescribed for invoices by the directive, it is drawn up with the agreement of the taxable person who supplies the goods or services, and the latter is able to contest the amount of value added tax mentioned. In such circumstances a taxable person who has that power of control may be regarded as the author of the credit note even if it is drawn up by the recipient of the goods or services.

Moreover, a taxable person who has not contested the mention in such a credit note of an amount of value added tax greater than that owed by reason of taxable transactions must be regarded as the person who has mentioned that amount, and is consequently liable to pay the amount shown, within the meaning of Article 21(1)(c) of the Sixth Directive. Any other interpretation would give scope for possible fraud or collusion, contrary to the proper functioning of the common system of value added tax and its objective of ensuring that value added tax is levied and collected under the supervision of the tax authorities.
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Officials - Pensions - Pension rights acquired before entering the service of the Communities - Transfer to the Community scheme - Obligations of Member States - Adoption of measures enabling entitlements to be transferred - Failure to fulfil obligations

(EC Treaty, Art. 5; Staff Regulations, Annex VIII, Art. 11(2))
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1 Accession of new Member States to the Communities - Austria - Article 6 of the EC Treaty - Immediate application

(EC Treaty, Art. 6; 1994 Act of Accession, Art. 2)

2 Community law - Principles - Equal treatment - Discrimination on grounds of nationality - Prohibition - Scope - National provision requiring foreign litigants to lodge security for costs - Included - Condition

(EC Treaty, Art. 6, first para.)

3 Community law - Principles - Equal treatment - Discrimination on grounds of nationality - Prohibition - Scope - National provision requiring foreign litigants to lodge security for costs - Whether applicable in an action brought by a shareholder against a company - Not permissible

(EC Treaty, Art. 6, first para.)

Summary

4 Since the 1994 Act of Accession contains no specific conditions with regard to the application of Article 6 of the EC Treaty, the latter provision must, pursuant to Article 2 of the Act of Accession, be regarded as immediately applicable, with the result that it is binding on the Republic of Austria from the date of its accession and applies in that Member State to the future effects of situations arising prior to accession.

5 A domestic rule of civil procedure in a Member State, such as that which requires a national of another Member State, in the case where he is non-resident, to lodge security for costs when he intends to bring legal proceedings, in his capacity as a shareholder, against a company established in that State comes within the scope of application of the Treaty within the meaning of the first paragraph of Article 6 thereof and is subject to the general principle of non-discrimination laid down by that article in so far as the rules which, in the area of company law, seek to protect the interests of shareholders come within the scope of application of the Treaty.

6 The first paragraph of Article 6 of the Treaty must be construed as precluding a Member State from requiring provision of security for costs by a national of another Member State who is also a national of a non-member country, in which he is resident, where that national, who is not resident and has no assets in the first Member State, has brought proceedings before one of its civil courts in his capacity as a shareholder against a company established in that Member State, if such a requirement cannot be imposed on the nationals of that State who are not resident and have no assets there.
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Keywords

Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Sixth Directive - Supplies of services - Determination of the place where the service is deemed to be supplied - Provision of cross-frontier passenger transport on an all-inclusive basis - Allocation of the overall consideration for the service between the Member States concerned on a pro rata basis, having regard to the distances covered in each such State - Application of other allocation criteria - Precluded

(Council Directive 77/388, Art. 9(2)(b))

Summary

Article 9(2)(b) of the Sixth Directive 77/388 on the harmonization of the laws of the Member States relating to turnover taxes must be interpreted as meaning that, in the case of the supply of cross-frontier passenger transport on an all-inclusive basis, the total consideration for that service must, for the purposes of determining the part of the transport operation taxable in each of the Member States concerned, be allocated on a pro rata basis, having regard to the distances covered in each such State, excluding all other allocation criteria.
Case C-104/96

Coöperatieve Rabobank ‘Vecht en Plassengebied’ BA

v

Erik Aarnoud Minderhoud(receiver in bankruptcy of Mediasafe BV)

Reference for a preliminary ruling from the Hoge Raad der Nederlanden

‛Company law — First Directive 68/151 /EEC — Scope — Representation of a company — Conflict of interests — Lack of authority of a director to enter into a binding transaction on behalf of the company’

Opinion of Advocate General La Pergola delivered on 12 March 1997 I-7213

Judgment of the Court (Sixth Chamber), 16 December 1997 I-7219

Summary of the Judgment

Freedom of movement for persons — Freedom of establishment — Companies — Directive 68/151 — Scope — Enforceability as against third parties of acts done by members of company organs in circumstances where there is a conflict of interests with the company — Outside the framework of the Directive

(Council Directive 68/151, Art. 9(1), first subpara.)

The rules governing the enforceability as against third parties of acts done by members of company organs in circumstances where there is a conflict of interests with the company fall outside the normative framework of the First Directive 68/151 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, and are matters for the national legislature.

It is clear from both the wording and the subject-matter of the first subparagraph of Article 9(1) of the First Directive that it concerns the limits on a company's powers as allocated by law to the various organs of the company and is not intended to coordinate the national laws applicable where a member of an organ finds himself in a conflict of interests with the company represented because of his personal circumstances.
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Freedom of movement for persons - Freedom of establishment - Registration of vessels in a Member State - Condition relating to the nationality of owners - Not permissible - Maintenance in force of national legislation incompatible with Community law - Failure to fulfil obligations

(EC Treaty, Arts. 6, 48, 52, 58 and 221; Regulation No 1251/70 of the Commission, Art. 7; Council Directive 75/34, Art. 7)

Summary

A Member State which maintains in force legislative provisions restricting the right to registration of fishing or commercial vessels, or pleasure craft in the national registers to vessels:

-more than half the shares in which are owned by nationals of the Member State in question,

-owned by legal persons, more than half of whose capital is held by nationals of that Member State

has failed to fulfil its obligations under Community law.

Neither the rules of the international law of the sea, nor the existence of a Community fisheries policy, notwithstanding its system of national quotas and access to waters and the existence of reserved national zones, nor the grant to a Member State of a temporary exemption for certain maritime transport services from the principle of freedom to provide services, nor yet, given the right of a State to requisition ships flying its flag, the organization of its military defence, render such legislation compatible with Community law.
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1 Community law - Principles - Proportionality - Primary obligation and secondary obligation - Identical penalty - Not permissible

2 Agriculture - Common organisation of the markets - Sugar - Production in excess of the quota (C sugar) - Charge imposed on sugar disposed of on the internal market - Levied where sugar is exported, but customs formalities have not been completed - Principle of proportionality - No breach

(Commission Regulations No 2670/81, Arts 2(2) and 3, and No 3183/80)

Summary

3 In order to establish whether a provision of Community law is in conformity with the principle of proportionality it is necessary to ascertain whether the means which it employs are appropriate and necessary to attain the objective sought. Where Community legislation makes a distinction between a primary obligation, compliance with which is necessary in order to attain the objective sought, and a secondary obligation, essentially of an administrative nature, it cannot, without breaching the principle of proportionality, penalise failure to comply with the secondary obligation as severely as failure to comply with the primary obligation

4 Compliance with the customs formalities provided for on the export of sugar produced in excess of the quota (C sugar), like the actual exportation, must be regarded as forming part of the primary obligations under the system in question, in so far as those formalities are not only intended to simplify administrative procedures but are also necessary to the proper functioning of the quota system in the sugar sector. They are not therefore to be classed as secondary obligations of an essentially administrative nature, failure to comply with which cannot be penalised as severely as infringement of a primary obligation without breaching the principle of proportionality.

It is, in consequence, compatible with the principle of proportionality to charge the amount provided for by Article 3 of Regulation No 2670/81, laying down detailed implementing rules in respect of sugar production in excess of the quota, on C sugar, where the sugar in question has unarguably been exported from the Community but the customs formalities have not been completed, with the result that proof of exportation cannot be produced by means of copy No 1 of the export licence bearing the necessary attributions and endorsements, in accordance with Article 2(2) of Regulation No 2670/81, read in conjunction with Regulation No 3183/80, laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products.
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1 Appeals - Pleas in law - Admissibility - Conditions - Submission of arguments also raised before the Court of First Instance - No effect

(EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

2 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - `Directly concerned' - Criteria - Implementation of a loan from the Community to the Soviet Union and its constituent Republics - Commission decision, addressed to the borrower, refusing to approve as complying with the applicable Community provisions an addendum to contracts concluded between the borrower's authorised agent and an undertaking which has been awarded a supply contract - Undertaking `directly concerned'

(EC Treaty, Art. 173, fourth para.)

Summary

1 Where an appeal against a judgment of the Court of First Instance clearly states which aspects of the contested judgment are criticised and the legal arguments which specifically support the appeal, the fact that those arguments were also raised at first instance cannot entail their inadmissibility.

2 For an applicant to be directly concerned by a Community measure - a condition of admissibility of an action for annulment brought by a natural or legal person against a decision addressed to another person - the contested Community measure must directly affect the legal situation of the applicant and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules. The same applies where the possibility for addressees not to give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt.

In the case of implementation of a loan from the Community to the Soviet Union and its constituent Republics to enable agricultural and food products and medical supplies to be imported, an undertaking which has been awarded a contract to supply wheat is directly concerned, in the above sense, by a Commission decision, addressed to the financial agent of the borrower Republic, refusing to approve as complying with the applicable Community provisions an addendum made to contracts concluded between the undertaking and the agent authorised for that purpose by the borrower Republic, in so far as that agent's option to perform the supply contracts in accordance with the conditions repudiated by the Commission and thus to forgo Community financing was purely theoretical. The said decision, adopted by the Commission in the exercise of its powers, thus deprived the undertaking of any real possibility of performing the contract awarded to it, or of obtaining payment for supplies made thereunder.
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Trans-European networks - Establishment of guidelines - Measures needed in order to ensure the interoperability of networks - Financial support - Council decision on a Community contribution for telematic interchange of data between administrations in the Community - Legal basis - Article 129d of the Treaty - Annulment on the ground of recourse to Article 235 - Temporal effects

(EC Treaty, Arts 129b, 129c, 129d, 174 and 235; Council Decision 95/468)

Summary

Not only does the objective of Decision 95/468 on a Community contribution for telematic interchange of data between administrations in the Community (IDA) serve a purpose which falls within Article 129b of the Treaty, concerning the establishment and development of trans-European networks: its very content falls within the ambit of such development. Moreover, since the measures for which it provides fall within the first, second and third indents of Article 129c(1) of the Treaty, relating respectively to the establishment of guidelines in the field in question, the interoperability of the networks and the provision of financial support by the Community, the decision should have been adopted in accordance with Article 129d. Since it was wrongly adopted on the basis of Article 235, the use of which as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question, Decision 95/468 must be annulled.

However, in order to avoid discontinuity in the measures commenced, and for important reasons of legal certainty, comparable to those which arise where certain regulations are annulled, there appears to be justification for the Court to exercise the power expressly conferred upon it by the second paragraph of Article 174 of the Treaty where a regulation is annulled and to decide that the effects of the implementing measures already taken by the Commission on the basis of the annulled decision should be maintained.
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1 Actions for annulment - Jurisdiction of the Court - Acts adopted on the basis of Article K.3(2) of the Treaty on European Union - Limits

(EC Treaty, Arts 100c and 173; Treaty on European Union, Arts K.3(2), L and M)

2 Approximation of laws - Article 100c of the EC Treaty - Scope - Airport transit arrangements - Excluded - Matter falling within the scope of joint action under Article K.3(2) of the Treaty on European Union

(EC Treaty, Arts 3(d) and 100c(1); Treaty on European Union, Art. K.3(2))

Summary

1 Article M of the Treaty on European Union makes it clear that a provision such as Article K.3(2), which provides for the adoption of joint action by the Council in the areas referred to in Article K.1 does not affect the provisions of the EC Treaty. In accordance with Article L of the Treaty on European Union, the provisions of the EC Treaty concerning the powers of the Court of Justice and the exercise of those powers apply to Article M. It is therefore the task of the Court to ensure that acts which, according to the Council, fall within the scope of Article K.3(2) do not encroach upon the powers conferred by the EC Treaty on the Community.

It follows that where an action is brought before the Court seeking a declaration that, in light of its objective, an act adopted by the Council on the basis of Article K.3(2)(b) of the Treaty on European Union falls within the scope of Article 100c of the EC Treaty, so that it should have been based on that provision, the Court has jurisdiction to review the content of the act in the light of Article 100c of the EC Treaty in order to ascertain whether the Act affects the powers of the Community under that provision.

2 Construed in the light of Article 3(d) of the EC Treaty, which includes among the activities of the Community for the purposes set out in Article 2, `measures concerning the entry and movement of persons in the internal market as provided for in Article 100c', the phrase `crossing the external borders of the Member States' in Article 100c(1) refers, in the case of an airport, to the crossing of those borders at a border control point, permitting the holder of the visa to enter and to move within the internal market.

The airport transit visa, introduced by the joint action adopted by the Council on the basis of Article K.3(2) of the Treaty on European Union on airport transit visas, does not authorise its holder to cross the external borders of Member States in the sense contemplated by Article 100c of the EC Treaty. Consequently, the act does not fall within the ambit of that provision.
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Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Noise emissions from subsonic aircraft - National legislation making the registration of aircraft conditional upon compliance with stricter noise standards than those laid down by Directive 83/206 - Barrier to the importation of aircraft - Justification - Protection of public health and of the environment

(EC Treaty, Art. 30; Council Directives 80/51 and 83/206)

Summary

Article 30 of the Treaty does not preclude national legislation which makes the first registration in national territory of aircraft previously registered in another Member State conditional upon compliance with stricter noise standards than those laid down by Directive 80/51 on the limitation of noise emissions from subsonic aircraft, as amended by Directive 83/206, while exempting from those standards aircraft which obtained registration in national territory before that directive was implemented.

Even though such legislation restricts intra-Community trade, a barrier of that kind may nevertheless be justified by considerations of public health and environmental protection and is not disproportionate to the objective pursued which is to combat the noise pollution generated by aircraft.
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Environment - Assessment of the effects of certain projects on the environment - Directive 85/337 - Project for which consent was obtained prior to the deadline for transposing the directive into national law - New consent procedure initiated after that deadline - Project subject to obligations relating to environmental impact assessment

(Council Directive 85/337)

Summary

Directive 85/337 on the assessment of the effects of certain public and private projects on the environment is to be interpreted as not permitting Member States to waive the obligations regarding environmental assessments in the case of projects listed in Annex I of the directive where

- the projects have already been the subject of a consent granted prior to 3 July 1988, the date by which the directive was to have been transposed into national law,

- the consent was not preceded by an environmental assessment in accordance with the requirements of the directive and no use was made of it, and

- a fresh consent procedure was formally initiated after 3 July 1988.

It is true that the principle of compulsory environmental assessment in accordance with the directive does not apply where the consent procedure was initiated before 3 July 1988 and was still in progress on that date. The reason for that is to avoid making more cumbersome and time-consuming, as a result of the specific requirements imposed by the directive, procedures which are already complex at national level and which were formally initiated before that date. Those considerations do not apply, however, in the circumstances mentioned above, particularly as national legal remedies are available in respect of the new consent procedure.