ddrg/super_eurlex huggingface dataset:
By imposing a prior declaration requirement on self-employed service providers established in Member States other than the Member State in question in respect of their activity in that Member State, a Member State fails to fulfil its obligations under Article 56 TFEU.

In that regard, national legislation falling within an area which has not been harmonised at EU level which is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement in the public interest and that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it.

However, although the objective of combating fraud, specifically social security fraud, and preventing abuse, in particular detecting ‘bogus self-employed persons’ and combating undeclared work, can form part not only of the objective of the financial balance of social security systems, but also of the objectives of preventing unfair competition and social dumping and protecting workers, including self-employed service providers, the fact remains that a general presumption of fraud is not sufficient to justify a measure which compromises the objectives of the FEU Treaty and it is for the Member State concerned to give a convincing justification as to how the rules at issue do not go beyond what is necessary to achieve those objectives.

(see paras 44, 45, 53, 55, 57, operative part)
Judgment of the Court (Seventh Chamber) of 30 September 2010 – Commission v Belgium

(Case C‑36/10)

Failure of a Member State to fulfil its obligations – Directives 96/82/EC and 2003/105/EC – Control of major-accident hazards involving dangerous substances – Second subparagraph of Article 12(1) – Incorrect transposition

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU; Council Directive 96/82, Art. 12(1), para. 2) (see paras 10-12)

Re:

Failure of a Member State to fulfil its obligations – Failure to adopt all the measures necessary in order to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13), as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 (OJ 2003 L 345, p. 97).

Operative part

The Court:

1. Declares that, by failing to adopt within the prescribed period all the measures to transpose correctly the second subparagraph of Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
Judgment of the Court (Fifth Chamber) of 30 June 2011 – Commission v Belgium

(Case C‑397/10)

Failure of a Member State to fulfil obligations – Article 56 TFEU – Freedom to provide services – National legislation making the activities of temporary work agencies subject to a set of requirements – Unjustified obstacles

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (Art. 56 TFEU)

2. Freedom to provide services – Restrictions – National legislation making the activities of temporary work agencies subject to, first, the obligation to have as their sole company object the provision of workers and, second, the obligation to have a particular legal form – Not permissible – No justification (Art. 56 TFEU) (see para. 13)

Re:

Failure of a Member State to fulfil its obligations – Infringement of Article 56 TFEU – Restriction of freedom to provide services – National legislation making the activities of temporary work agencies established in other Member States subject to a set of requirements – Unjustified obstacles.

Operative part

The Court:

1. Declares that, by making the temporary work agencies providing their services in the territory of the Brussels Capital Region subject to the following requirements:

– that they have as their sole company object that of the provision of workers, and

– that they have a particular legal form,

the Kingdom of Belgium has failed to fulfil its obligations under Article 56 TFEU;
Judgment of the Court (Seventh Chamber) of 29 September 2011 – Commission v Austria

(Case C-387/10)

Failure of a Member State to fulfil obligations – Freedom to provide services – Legislation of a Member State concerning investment funds and real property investment funds – Evidence relating to revenue regarded as distributed – Evidence provided through a tax representative – ‘National’ financial institutions and business trustees recognised as tax representatives

Freedom to provide services – Restrictions – National legislation limiting the tax representation of investment funds and real property investment funds to national financial institutions and national business trustees – Not permissible – Not justified by the general interest (Art. 49 EC; EEA Agreement, Art. 36) (see paras 25, 31-34, operative part)

Re:

Failure of a Member State to fulfil obligations – Breach of Article 49 EC and of Article 36 of the Agreement of 2 May 1992 on the European Economic Area (OJ 1994 L 1, p. 3) – Legislation of a Member State restricting tax representation in respect of investment funds and real property investment funds to business trustees and financial institutions established in that State.

Operative part

The Court:

1. Declares that, by adopting and maintaining in force provisions under which only national financial institutions and national business trustees may be appointed as tax representatives of investment funds or real property investment funds, the Republic of Austria has failed to fulfil its obligations under Article 49 EC and Article 36 of the Agreement of 2 May 1992 on the European Economic Area;
Judgment of the Court (Third Chamber) of 15 March 2012 —

Commission v Germany



(Case C-574/10)

Failure of a Member State to fulfil its obligations — Directive 2004/18/EC — Public service contracts — Architecture and engineering services — Design, planning and supervision of a project to renovate a public building — Project carried out in several phases, for budgetary reasons — Market value

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Public service contracts — Definition (European Parliament and Council Directive 2004/18, Arts 2(7)(b), 9, 20 and 23 to 55) (see paras 37, 41-52, operative part)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 2, 9 and 20 in conjunction with Articles 23 to 55 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Award by the municipality of Niedernhausen, without a Europe-wide invitation to tender, of several architecture services relating to the same construction project to an engineering agency — Division of the service awarded — Calculation of the market value.

Operative part

The Court:

1. Declares that, because the municipality of Niedernhausen awarded an architecture services contract relating to the renovation of a public building called ‘Autalhall’ located in the territory of that municipality, the value of which exceeded the threshold laid down in Article 7(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, without conducting a Europe-wide invitation to tender, the Federal Republic of Germany has failed to fulfil its obligations under Articles 2, 9 and 20 in conjunction with Articles 23 to 55 of that directive;
16

Article 132 of Law C of 2003 on electronic communications states: ‘1. The rules relating to the conclusion of subscriber contracts shall apply to the amendment of each subscriber contract. The standard contract terms may allow the amendment of each subscriber contract in accordance with paragraph 2. 2. A supplier of services may unilaterally amend a subscriber contract only in the following cases: (a) if the conditions set out in each subscriber contract or in the standard contract terms are met, subject to the condition that the amendment does not involve any substantial amendment of the terms of the contract, in so far as the legislation or the rules relating to electronic communications do not provide otherwise; (b) if it is justified by a legislative amendment or by an administrative decision. or (c) if it is justified by substantial changes in circumstances. 3. A substantial amendment shall mean a change relating to the conditions necessary to receive the service or to the indicators corresponding to a quality objective. 4. If the supplier of a service is permitted unilaterally to amend the standard contract terms in the circumstances set out by those terms, that supplier shall be required to inform subscribers, in accordance with the requirements laid down by the present Law, and to respect a notice period of at least thirty days before the date on which the aforementioned amendment is to take effect; it shall also be required to inform subscribers of the conditions applicable to their resulting right to terminate the contract. In such a case, a subscriber may terminate the contract with immediate effect within eight days of the amendment notification having been sent. 5. Where the amendment includes provisions which are unfavourable to the subscriber, the latter may terminate the subscriber contract, without any other legal consequences, within 15 days of the aforementioned notification. However, subscribers are not entitled to avoid the contract if they have undertaken to use the service for a specific period of time and if they have concluded the subscriber contract in light of the benefits stemming from such an undertaking, and the amendment does not affect the benefits received. Where the amendment has an effect on the benefits received and the subscriber terminates the contract, the supplier of the service cannot claim from the subscriber the amount of the benefits received for the period subsequent to the termination of the contract. ...’
6

Article 31 of Regulation No 1408/71, which is entitled ‘Stay of a pensioner and/or members of his family in a Member State other than the State in which they reside’, is included in Section 5 of Chapter I, which is entitled ‘Pensioners and members of their families’. Article 31(1) provides: ‘A pensioner entitled to a pension or pensions under the legislation of one Member State or to pensions under the legislation of two or more Member States who is entitled to benefits under the legislation of one of those States shall, with members of his family who are staying in the territory of a Member State other than the State in which they reside, receive: (a) benefits in kind which become necessary on medical grounds during a stay in the territory of the Member State other than the State of residence, taking into account the nature of the benefits and the expected length of the stay. These benefits in kind shall be provided by the institution of the place of stay, in accordance with the provisions of the legislation which it administers, on behalf of the institution of the place of residence of the pensioner or of the members of his family; (b) cash benefits provided, where appropriate, by the competent institution ..., in accordance with the provisions of the legislation which it administers. However, upon agreement between the competent institution and the institution of the place of stay, these benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.’
63

In paragraphs 169 to 172 and paragraph 186 of the judgment under appeal, the General Court then responded to the appellants’ complaints as regards the Commission’s choice of using the normal tax rules for profits as a reference framework, and dismissed them in the following terms: ‘169 However, it is not for the Commission, in examining a scheme in the light of the rules on State aid, to envisage the subjective choices that might have been made by the beneficiaries of that scheme in the absence of such a scheme but to examine the scheme in order to determine whether it entails, from an objective standpoint, an economic advantage by reference to the tax provisions from which it derogates which would normally have been applicable in the absence of the scheme (see, to that effect, Case C-148/04 Unicredito Italiano [2005] ECR I-11137, paragraph 118). The fact that, in the absence of the realignment scheme at issue, the undertakings concerned would allegedly not have disposed of their assets is, in the context of such an objective assessment, irrelevant. 170 The [appellants] also claim … that the use of the normal tax as the reference framework is inappropriate because, whilst the application of the tax normally applied in the event of disposal would undoubtedly eliminate any misalignment of the assets for the establishment to which the assets were transferred under Law … 218/1990, it would, on the other hand, have no effect on the misalignment of the shares received by the transferring entity. 171 As regards the [appellants’] reference to the situation of the transferring entities under Law … 218/1990, it should be noted that the contested decision does not in any way concern those entities, but simply the banks to which assets were transferred under that law. The Commission considered in the contested decision whether there was an advantage, and concluded that that was the case, solely in connection with those banks. 172 It follows that the repeated references made by the [appellants] in the present action … to the situation of the transferring entities under Law … 218/1990, in particular to the fact that the 2003 tax reform did not remove for those entities the risk of the double taxation of suspended gains distributed as dividends, are irrelevant. ... 186 It follows from the above considerations that, contrary to the [appellants’] claims, the Commission did not err in using the normal tax as a reference framework for the purpose of determining whether there was an economic advantage.’
8

Article 30 of Directive 2001/14 provides as follows: ‘1. Without prejudice to Article 21(6), Member States shall establish a regulatory body. This body, which can be the Ministry responsible for transport matters or any other body, shall be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. … 2. An applicant shall have a right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking concerning: (a) the network statement; (b) criteria contained within it; (c) the allocation process and its result; (d) the charging scheme; (e) level or structure of infrastructure fees which it is, or may be, required to pay; (f) the information provided pursuant to Article 10 of Directive [91/440]. 3. The regulatory body shall ensure that charges set by the infrastructure manager comply with chapter II and are non-discriminatory. Negotiations between applicants and an infrastructure manager concerning the level of infrastructure charges shall only be permitted if these are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to contravene the requirements of this Directive. 4. The regulatory body shall have the power to request relevant information from the infrastructure manager, applicants and any third party involved within the Member State concerned, which must be supplied without undue delay. 5. The regulatory body shall be required to decide on any complaints and take action to remedy the situation within a maximum period of two months from receipt of all information. Notwithstanding paragraph 6, a decision of the regulatory body shall be binding on all parties covered by that decision. In the event of an appeal against a refusal to grant infrastructure capacity, or against the terms of an offer of capacity, the regulatory body shall either confirm that no modification of the infrastructure manager’s decision is required, or it shall require modification of that decision in accordance with directions specified by the regulatory body. 6. Member States shall take the measures necessary to ensure that decisions taken by the regulatory body are subject to judicial review.’
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Summary



Keywords

Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals

(European Parliament and Council Directive 2008/115, Arts 15 and 16)

Summary

Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.

Such a penalty, due inter alia to its conditions and methods of application, risks jeopardising the attainment of the objective pursued by that directive, namely, the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals.

(see paras 59, 62, operative part)
Article 8(1) of Regulation No 1663/95 laying down detailed rules for the application of Regulation No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section provides that if, as a result of an enquiry, the Commission considers that expenditure has not been effected according to Community rules, it is to notify the Member State concerned of the results of its checks and indicate the corrective measures to be taken to ensure future compliance. That provision requires the irregularity that the Member State concerned is alleged to have committed to be indicated in the written communication provided for in the first subparagraph of that provision sufficiently precisely, so that the Member State may be fully informed of it. Failure to observe that condition laid down in Article 8(1) of that regulation deprives of its substance the procedural guarantee accorded to Member States by the fifth point of Article 5(2)(c) of Regulation No 729/70 on the financing of the common agricultural policy and the fifth subparagraph of Article 7(4) of Regulation No 1258/1999 on the financing of the common agricultural policy, which limits the period in respect of which expenditure can be refused financing by the EAGGF.

Article 8(1) of Regulation No 1663/95 must thus be read in conjunction with the fifth point of Article 5(2)(c) of Regulation No 729/70 and the fifth subparagraph of Article 7(4) of Regulation No 1258/1999, pursuant to which the Commission may not exclude expenditure effected more than 24 months before the Commission’s written communication of the results of those checks to the Member State concerned. It follows that the written communication required under the first subparagraph of Article 8(1) of Regulation No 1663/95 serves as a warning that expenditure effected during the period of 24 months preceding notification of that communication may be excluded from financing by the EAGGF and, accordingly, that that communication constitutes the reference point from which the period of 24 months thus prescribed is to be calculated.

Consequently, in order to perform its function as a warning, in particular in the light of the fifth point of Article 5(2)(c) of Regulation No 729/70 and the fifth subparagraph of Article 7(4) of Regulation No 1258/1999, the communication referred to in Article 8(1) of Regulation No 1663/95 must first sufficiently precisely identify all irregularities which the Member State concerned is alleged to have committed which, ultimately, formed the basis for the financial correction applied. Such a communication alone can ensure that full information is provided concerning the Commission’s reservations pursuant to that provision and can constitute the reference point for calculation of the period of 24 months laid down in the fifth point of Article 5(2)(c) of Regulation No 729/70 and the fifth subparagraph of Article 7(4) of Regulation No 1258/1999.

(see paras 26, 28-31, 33, 34)
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Summary



Keywords

1. Preliminary rulings — Jurisdiction of the Court — Limits — Question raised regarding a dispute within a single Member State — Jurisdiction in the light of the possible applicability of the rule of European Union law to the dispute by reason of a prohibition or discrimination laid down by national law

(Arts 49 TFEU and 267 TFEU)

2. Member States — Retained powers — Adjustment of social security systems — Limits — Compliance with European Union law — Protection of public health — Discretion of the Member States

3. Freedom of establishment — Restrictions — National legislation requiring prior authorisation for the opening of new pharmacies in a given region — Body of rules more favourable to the university pharmacy of a Member State than to private pharmacies — Lawfulness — Conditions — To be determined by the national court

(Art. 49 TFEU)

Summary

1. See the text of the decision.

(see paras 19-22)

2. See the text of the decision.

(see paras 27-29)

3. Article 49 TFEU must be interpreted as not precluding a national law providing for a licensing scheme for the operation of branch pharmacies specific to the university pharmacy of a Member State that is more favourable than that applicable to private pharmacies, provided that, which it is for the referring court to determine, the branches of that pharmacy actually participate in the accomplishment of the specific tasks relating to the teaching of pharmacy students, research in pharmaceutical services and the manufacture of rare pharmaceutical preparations conferred on the latter by national law.

(see para. 44, operative part)
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Keywords

Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para. 9)

2. Member States — Obligations — Implementation of directives — Enforcement in part — Failure to fulfil obligations (Art. 258 TFEU) (see para. 11)

3. Member States — Obligations — Implementation of directives — Failure to fulfil obligations — National system pleaded as justification — Not permissible (Art. 258 TFEU) (see para. 13)