ddrg/super_eurlex huggingface dataset:
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Approximation of laws – Measures for the establishment and proper functioning of the internal market in electricity – Directive 2003/54 – Third-party access to electricity transmission and distribution systems

(Art. 307 EC; European Parliament and Council Directive 2003/54)

Summary

A Member State whose system operator, before that State acceded to the Community, concluded with a company established in a non-member country a contract for preferential access reserving to that company a right of transit on the national, high-voltage electricity system in return for its financial contribution to the constructing of the transmission line on which it enjoys that right, does not fail to fulfil its obligations under Directive 2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92, for the preferential access granted to the company in question may be regarded as an investment protected by the agreement on the reciprocal promotion and protection of investments, concluded by the non-member country and the Member State concerned before the latter acceded to the Community and any termination of the contract would, under that Member State’s international obligations, give rise to a breach of that agreement by that Member State.

The purpose of the first paragraph of Article 307 EC is to make clear, in accordance with the principles of international law, as set out in, inter alia, Article 30(4)(b) of the Vienna Convention on the Law of Treaties of 23 May 1969, that the application of the EC Treaty does not affect the duty of the Member State concerned to respect the rights of non-member countries under an earlier agreement and to perform its obligations thereunder.

In order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether the latter imposes on the Member State concerned obligations whose performance may still be required by non-member countries parties to it.

Although, in the context of Article 307 EC, the Member States have a choice as to the appropriate steps to be taken in order to eliminate any incompatibility existing between a pre-Community convention and the EC Treaty, if a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot be excluded. It must, however, be stated that the contract at issue in the present case does not contain any clause providing for a possibility of denunciation and terminating the contract would have the consequence of depriving the company of the remuneration provided for by that contract in return for its financial contribution towards the construction of the transmission line, would prejudice that company’s rights and so would have the same effect as expropriation, prohibited by the agreement on the reciprocal promotion and protection of investments.

In those circumstances, even if the preferential access granted to the company is not compatible with Directive 2003/54, it is protected by the first paragraph of Article 307 EC.

(see paras 38, 41-42, 44, 46, 48, 51-52)
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Freedom to provide services – Television broadcasting activities – Directive 89/552 – Concept of ‘advertising spot’

(Council Directive 89/552, Art. 18(2))

Summary

A Member State has failed to fulfil its obligations under Article 3(2) of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36, where it tolerates a situation in which certain types of advertising, such as advertorials, telepromotion spots, sponsorship credits and micro-ads are broadcast on national television channels with a duration which exceeds the maximum limit of 20% of the transmission time within a clock hour, as laid down in Article 18(2) of that directive. Those types of advertising fall within the scope of the concept of advertising spots and are therefore subject to the restrictions on broadcasting time laid down in Article 18(2).

Any type of television advertising broadcast between programmes or during breaks constitutes, as a general rule, an ‘advertising spot’ within the meaning of Directive 89/552, unless the type of advertising concerned is covered by another form of advertising expressly governed by that directive, as applies to, inter alia, ‘teleshopping’, or unless it requires, because of the way in which it is presented, a duration greater than that of advertising spots, on condition that an application of the restrictions prescribed in respect of advertising spots would, without valid justification, amount to disadvantaging the form of advertising concerned by comparison with advertising spots. Consequently, even if a specific type of advertising has inherently, that is to say, because of the way in which it is presented, a duration which is slightly longer than the usual duration of advertising spots, that fact alone is not sufficient reason for it to be classified as an ‘other form of advertising’ within the meaning of Article 18(1) of Directive 89/552.

(see paras 52-53, 55-56, operative part)
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Subject of the case

Operative part



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Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision prohibiting a sectoral aid scheme – Action brought by an undertaking having received individual aid granted under that scheme and that must be recovered – Admissibility (Art. 230, fourth para., EC) (see paras 54-59)

2. Actions for annulment – Legal interest in bringing proceedings – Condition – Action capable of procuring an advantage for the party bringing it – Commission decision on the recovery of State aid (see paras 67-69)

3. Appeals – Pleas in law – Inadequate statement of reasons – Reliance by the Court of First Instance on implied reasoning – Whether permissible – Conditions (Art. 225 EC; Statute of the Court of Justice, Arts 36 and 53, first para.) (see para. 82)

4. Appeals – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.) (see paras 114-116)

5. Appeals – Pleas in law – Plea directed against a ground of the judgment not necessary in order to support the operative part – Plea in law ineffective (see para. 120)

Subject of the case

Re:

Appeal brought against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) of 11 June 2009 in Case T‑297/02 ACEA v Commission by which that court dismissed the action brought for annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

Operative part

Operative part

The Court:

1. Dismisses the main appeal and the cross-appeal;

2. Orders ACEA SpA to pay the costs of the main appeal;

3. Orders the European Commission to pay the costs of the cross-appeal;

4. Orders Iride SpA to pay its own costs.
Judgment of the Court (Seventh Chamber) of 12 November 2009 – Commission v Italy

(Case C‑12/09)

Failure of a Member State to fulfil obligations – Directive 2006/17/EC – Technical requirements for the donation, procurement and testing of human tissues and cells – Failure to transpose within the prescribed period

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. 226 EC) (see para. 8)

2. Member States – Obligations – Implementation of directives – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 226 EC) (see para. 9)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the provisions necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells (OJ 2006 L 38, p. 40).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells, the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 7(1) of Directive 2006/17;
The principle of res judicata, which is also applicable to proceedings for failure to fulfil obligations, means that the res judicata which attaches to a judgment may constitute an obstacle to the admissibility of an action if, having regard to the factual and legal background of the two sets of proceedings for failure to fulfil obligations concerned, the two cases are essentially identical in fact and in law.

As regards in particular the field of State aid, the means of redress provided for by the second subparagraph of Article 108(2) TFEU is merely a variant of the action for failure to fulfil obligations, specifically adapted to the special problems which State aid poses for competition within the internal market. In the context of proceedings under Article 258 TFEU, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion and any subsequent changes cannot be taken into consideration. The relevant date for the assessment of a failure to fulfil obligations brought pursuant to the second subparagraph of Article 108(2) TFEU is as a rule that set out in the decision of the Commission which that Member State denies not implementing. That provision does not provide for a pre-litigation phase in contrast to Article 258 TFEU and therefore the Commission does not issue a reasoned opinion allowing the Member State concerned a certain period within which to comply with EU law.

In a case where the Commission has fixed a period for the Member State to comply with its obligations under a decision concerning State aid and where, after an earlier action for failure to fulfil obligations, in the course of long discussions between the parties regarding the recovery of the aid at issue, it prescribes a new period, it is the latter period which is relevant for the purpose of assessing the failure to fulfil obligations in the subsequent case.

Consequently, it cannot reasonably be claimed that the subsequent case and that which gave rise to the previous judgment of the Court have the same subject-matter, as the relevant date in the subsequent case is far later than that on which the previous judgment was delivered.

(see paras 64, 65, 67-71, 74-78)
Judgment of the Court (Fourth Chamber) of 21 January 2010 – Commission v Germany

(Case C‑17/09)

Public service contracts – Bio-waste and green waste disposal service – Award without an open public tender procedure

1. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Failure to fulfil obligations (Council Directive 92/50) (see paras 15-18)

2. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 (Art. 226 EC; Council Directive 89/665) (see paras 22-23)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 8 in conjunction with Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) – Failure to organise a formal European award procedure before the conclusion of a contract for bio-waste and green waste disposal services between the city of Bonn and a private company.

Operative part

The Court:

1. Declares that the Federal Republic of Germany has failed to fulfil its obligations under Article 8 and Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, on the grounds that the municipality of Bonn and the Müllverwertungsanlage Bonn GmbH awarded a public service contract on the disposal of bio-waste and green waste without carrying out a procedure for the award of public works including Europe-wide tendering;
1.

Declares that, by applying an administrative procedure by to which the European Union’s own resources are established only after the debtor has been granted a period of at least 15 days to submit his observations and by failing to observe, where there is post-clearance recovery, the time-limits laid down for the entry of those resources, which has the consequence of delaying their payment, the Republic of Finland has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources, as amended by Council Regulation (Euratom, EC) No 1355/96 of 8 July 1996, and Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources and under Article 220 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code;
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Subject of the case

Operative part



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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; European Parliament and Council Directive 2006/21) (see paras 15-17)

2. Member States – Obligations – Implementation of directives – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 258 TFEU) (see para. 18)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (OJ 2006 L 102, p. 15).

Operative part

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, the French Republic has failed to fulfil its obligations under that directive;

2. Orders the French Republic to pay the costs.
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Subject of the case

Operative part



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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. 10)

2. Member States – Obligations – Implementation of directives – Failure to fulfil obligations – Justification – Not permissible (Art. 258 TFEU) (see para. 12)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (recast).

Operative part

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC, the Hellenic Republic has failed to fulfil its obligations under that directive;

2. Orders the Hellenic Republic to pay the costs.
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Free movement of capital – Restrictions – Inheritance tax

(Art. 63 TFEU)

Summary

Article 63 TFEU precludes legislation of a Member State which reserves application of succession duties at the reduced rate to non-profit-making bodies that have their centre of operations in that Member State or in the Member State in which, at the time of death, the deceased actually resided or had his place of work, or in which he had previously actually resided or had his place of work.

Whilst it is lawful for a Member State to require, for the purposes of granting certain tax advantages, there to be a sufficiently close link between the bodies which that Member State recognises as pursuing some of its charitable purposes and the activities pursued by those bodies, that Member State may not grant such advantages only to bodies established in its territory and whose activities are capable of relieving that State of some of its responsibilities. In particular, the possibility that a Member State may be relieved of some of its responsibilities does not mean that it is free to introduce a difference in treatment between national bodies recognised as pursuing charitable purposes and bodies established in another Member State that are recognised as pursuing charitable purposes, on the ground that legacies left to the latter cannot, even though the activities of those bodies reflect the same objectives as the legislation of the first Member State, have compensatory effects for budgetary purposes. The need to prevent the reduction of tax revenues is neither among the objectives stated in Article 65 TFEU nor an overriding reason in the public interest capable of justifying a restriction of a freedom established by the Treaty.

(see paras 30-31, 37 and operative part)
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Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Exclusive jurisdiction – Proceedings concerning companies or other legal persons or associations of natural or legal persons

(Council Regulation No 44/2001, Art. 22(2))

Summary

Article 22(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not applying to proceedings in which a company pleads that a contract cannot be relied upon against it because a decision of its organs which led to the conclusion of the contract is supposedly invalid on account of infringement of its statutes.

That provision covers only proceedings whose principal subject-matter comprises the validity of the constitution, the nullity or the dissolution of the company, legal person or association or the validity of the decisions of its organs. Any question concerning the validity of a decision to enter into a contract taken by organs of one of the parties thereto must be considered ancillary in the context of a contractual dispute. The subject-matter of such a contractual dispute does not necessarily display a particularly close link with the courts where the party which pleads that a decision of its own organs is invalid has its seat. It would therefore be contrary to the sound administration of justice to confer exclusive jurisdiction for such disputes upon the courts of the Member State in which one of the contracting companies has its seat.

(see paras 39, 41, 44, 47, operative part)
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Subject of the case

Operative part



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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 91/271, Arts 3 and 4) (see paras 54, 64

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Infringement of Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ L 135, p. 40).

Operative part

Operative part

The Court:

1. Declares that, by failing to ensure that:

– urban waste water from the agglomerations with a population equivalent of more than 15 000 of Valle de Güimar, Noreste (Valle Guerra), Valle de la Orotava, Arenys de Mar, Alcossebre and Cariño is collected in accordance with Article 3 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, and

– urban waste water from the agglomerations with a population equivalent of more than 15 000 of Arroyo de la Miel, Arroyo de la Víbora, Estepota (San Pedro de Alcántara), Alhaurín el Grande, Coín, Barbate, Chipiona, Isla Cristina, Matalascañas, Nerja, Tarifa, Torrox Costa, Vejer de la Frontera, Gijón-Este, Llanes, Valles de Güimar, Noreste (Valle Guerra), Los Llanos de Aridane, Arenys de Mar, Pineda de Mar, Ceuta, Alcossebre, Benicarló, Elx (Arenales), Peñíscola, Teulada Moraira (Rada Moraira), Vinaròs, A Coruña, Cariño, Tui, Vigo, Aguiño-Carreira-Ribeira, Baiona, Noia, Santiago, Viveiro and Irán (Hondarribia) is treated in accordance with Article 4(1), (3) and, where applicable (4), of Directive 91/271,

the Kingdom of Spain has failed to fulfil its obligations under those provisions of Directive 91/271/EEC;

2. Orders the Kingdom of Spain to pay the costs.
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Approximation of laws – Copyright and related rights – Rental right and lending right on protected works – Directive 92/100 – Remuneration of authors in the event of public lending

(Council Directive 92/100, Art. 5(1))

Summary

Article 5(1) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property precludes legislation, which establishes a system under which the remuneration payable to authors in the event of public lending is calculated exclusively according to the number of borrowers registered with public establishments, on the basis of a flat-rate amount fixed per borrower and per year.

Given that remuneration constitutes consideration for the harm caused to authors by reason of the use of their works without their authorisation, the determination of the amount of that remuneration cannot be completely dissociated from the elements which constitute that harm. As that harm is the result of public lending, that is to say, the making available of protected works by establishments accessible to the public, the amount of the remuneration due should take account of the extent to which those works are made available, both as regards the number of borrowers registered and the number of protected works made available by a public lending establishment.

(see paras 37-39, 43, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable amount – National derogating measures

(Council Directive 77/388, Arts 5(6), 6(2), 11A(1)(a), and 27)

Summary

Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as precluding a Member State from applying to transactions, effected between connected parties having agreed a price which is patently lower than the open market price, a rule for determining the taxable amount other than the general rule laid down in Article 11A(1)(a) of that directive, by extending the scope of the rules for determining the taxable amount on the application of goods and services for private use by a taxable person, within the meaning of Articles 5(6) and 6(2) of that directive, when the procedure provided for in Article 27 of that directive to obtain authorisation for such derogation from that general rule has not been followed by that Member State.

(see para. 40, operative part)