ddrg/super_eurlex huggingface dataset:
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1. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Award of contracts — Groups of tenderers — National rules prohibiting a change in the composition of the group after submission of tenders — Whether permissible — (Council Directive 93/37)

2. Approximation of laws — Review procedures relating to the award of public supply and public works contracts — Directive 89/665 — Member States under an obligation to provide for review procedures — Groups of tenderers — Availability of review procedures — (Council Directive 89/665)

Summary

1. Directive 93/37 concerning the coordination of procedures for the award of public works contracts does not preclude national rules which prohibit a change in the composition of a consortium taking part in a procedure for the award of a public works contract or a public works concession which occurs after submission of tenders.

Rules about the composition of such consortia are a matter for the Member States, since Article 21 of the directive, the only provision dealing with groups of contractors, is confined, first, to stating that tenders may be submitted by such groups and, second, to preventing them from being required to assume a specific legal form before the contract has been awarded to the group selected, and contains no provision about the composition of such groups.

see paras 60-61, 63, operative part 1

2. Article 1(1) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, requires Member States to take the measures necessary to ensure that, as regards contract award procedures falling within the scope of the relevant Community directives, decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.

Member States are also required, under Article 1(3), to ensure that the review procedures are available at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement.

In that regard, a consortium must be able to avail itself of the review procedures provided for by Directive 89/665, in so far as a decision of a contracting authority adversely affects the rights conferred on the consortium by Community law in the context of a procedure for the award of a public contract.

see paras 64-65, 73, operative part 2
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1. Appeals — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Plea inoperative — (Statute of the Court of Justice, Art. 58, first subpara.)

2. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissible — Review by the Court of Justice of assessment of evidence — Excluded unless the sense of evidence has been distorted — (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first subpara.)

Summary

1. It is settled case-law that in appeal proceedings the Court of Justice will reject outright complaints directed against grounds of a judgment of the Court of First Instance included purely for the sake of completeness since they cannot lead to the judgment's being set aside.

see para. 17

2. It is settled case-law that in appeal proceedings the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject as such to review by the Court of Justice.

see para. 27
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Actions for failure to fulfil obligations — Pre-litigation procedure — Reasoned opinion — Contents — Commission's failure to adopt a position on the alleged difficulties of interpretation of a directive — Member State not permitted to rely on those difficulties to defer transposition of that directive — (Art. 226 EC)

Summary

In the context of an action for failure to implement a directive, it is, in principle, for the Commission to set out, in its reasoned opinion, its assessment of the observations of the Member State in question set out in its response to the letter of formal notice.

However, in failing to adopt a position on the alleged difficulties of interpretation surrounding a term in a provision of the directive which has not been transposed by that State and, in any event, failing to define that term in the course of the pre-litigation procedure, the Commission did not engender any uncertainty in that State as to the extent of its obligations to transpose and therefore did not prevent it from putting an end to the alleged infringement.

First, the Commission is not empowered to determine conclusively, by reasoned opinions formulated pursuant to Article 226 EC or other statements of its position in the course of such proceedings, the rights and duties of a Member State or to afford that State guarantees concerning the compatibility of a given line of conduct with Community law. Second, a Member State cannot rely on difficulties in interpreting a directive in order to delay transposing it until after the prescribed period has expired.

see paras 22-25
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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 by the reasoned opinion — (Art. 226 EC)

2. Actions for failure to fulfil obligations — Pre-litigation procedure — Letter of formal notice — Delimitation of the subject-matter of proceedings — Reasoned opinion referring to rules other than those cited in the letter of formal notice — Inadmissibility of the action — (Art. 226 EC)

Summary

1. In an action under Article 226 EC, the question whether a Member State has failed to fulfil its 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 and, in accordance with the second paragraph of Article 226 EC, if a Member State has put a stop to the infringement before the end of that period, the Commission may no longer bring an action before the Court of Justice.

see para. 15

2. In the system established by Article 226 EC, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission. The proper conduct of that procedure thus constitutes an essential guarantee required by the Treaty in order to protect the rights of the Member State concerned. It is only when that guarantee is observed that the contentious procedure before the Court can enable it to judge whether the Member State has in fact failed to fulfil the obligations which the Commission alleges it has breached. More specifically, the purpose of the letter of formal notice in the pre-litigation procedure is to delimit the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence. It follows that the reasoned opinion and the application made to the Court pursuant to the second paragraph of Article 226 EC are flawed, with regard to the rights of the defence, since they refer to rules of Community law other than those cited in the letter of formal notice and since the change in the legal situation is likely to have affected the assessment of the compatibility of the national legislation in question with Community law.

see paras 17-18
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Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters — Scope — Civil and commercial matters — Concept of civil and commercial matters — Action brought by the State for the enforcement of a guarantee contract entered into in order to satisfy a condition imposed by a third party contractor — Included — Conditions — Concept of customs matters — Action brought by the State for the enforcement of a guarantee contract intended to guarantee the payment of a customs debt — Excluded — Criteria — (Brussels Convention of 27 September 1968, Art. 1, first para.)

Summary

The first paragraph of Article 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), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic must be interpreted as follows:

─ "civil and commercial matters" , within the meaning of the first sentence of that provision, covers a claim by which a Contracting State seeks to enforce against a person governed by private law a private-law guarantee contract which was concluded in order to enable a third person to supply a guarantee required and defined by that State, in so far as the legal relationship between the creditor and the guarantor, under the guarantee contract, does not entail the exercise by the State of powers going beyond those existing under the rules applicable to relations between private individuals;

─ "customs matters" , within the meaning of the second sentence of that provision, does not cover a claim by which a Contracting State seeks to enforce a guarantee contract intended to guarantee the payment of a customs debt, where the legal relationship between the State and the guarantor, under that contract, does not entail the exercise by the State of powers going beyond those existing under the rules applicable to relations between private individuals, even if the guarantor may raise pleas in defence which necessitate an investigation into the existence and content of the customs debt.

see paras 36, 44, operative part
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Freedom to provide services — Restrictions — Tax legislation — Difference in treatment for occupational pension insurance taken out in another Member State — Not permissible — (Art. 49 EC)

Summary

Article 49 EC precludes an insurance policy issued by an insurance company established in another Member State which meets the conditions laid down in national law for occupational pension insurance, apart from the condition that the policy must be issued by an insurance company operating in the national territory, from being treated differently in terms of taxation, with income tax effects which, depending on the circumstances in the individual case, may be less favourable.

see para. 62, operative part
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Environment — Water pollution — Directive 76/464 — Obligation to establish specific programmes to reduce the pollution caused by certain dangerous substances — Scope — Need to establish programmes and quality objectives — Effectiveness of the Directive — (Council Directive 76/464, Art. 7 and Annex, List II)

Summary

It follows from the requirement that the pollution reduction programmes, which must be adopted by the Member States under Article 7 of Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, be specific and effective, as brought out by the case-law of the Court, that the quality objectives provided for in Article 7(3) are an essential element of those programmes and must therefore be fixed on the basis of an assessment of receiving waters with reference to every substance in List II ─ in the Annex to the Directive which may be present in discharges made within the territory of the Member State concerned, so as not to compromise the effectiveness of that directive. Only that interpretation can ensure the effectiveness of the system for laying down quality objectives in order to carry out those programmes, since it is the only interpretation which can ensure that those objectives provide precise information regarding the quality of receiving waters for the purpose of laying down the emissions standards provided for in earlier discharge authorisations, issued in accordance with Article 7(2) of Directive 76/464.

It follows that aggregated water quality objectives laid down by national legislation, which are fixed with reference to a classification system based on five quality levels taking into account a large number of global parameters, one of which refers to the concentration in water of dangerous substances resulting from industrial discharges, do not ensure the proper implementation of Article 7 of Directive 76/464. Since that global parameter does not necessarily enable sufficiently stringent values to be fixed for each individual component in List II, it is not likely to provide a useful basis for defining the emissions standards laid down in discharge authorisations issued in accordance with Article 7(2) of that directive.

see paras 65-68, 71-72
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Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 80/987 — National legislation introducing a time-limit for the lodging of an application seeking to obtain compensation in respect of outstanding salary claims — Whether permissible — Conditions — (Council Directive 80/987)

Summary

Directive 80/987 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer does not preclude the application of a time-limit laid down by national law for the lodging of an application by an employee seeking to obtain, in accordance with the detailed rules laid down in that directive, a compensation payment in respect of outstanding salary claims resulting from his employer ' s insolvency, provided that the time-limit is no less favourable than those governing similar domestic applications (principle of equivalence) and is not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness).

see para. 46, operative part 1
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1. Environment — Waste — Directive 75/442, as amended by Directive 91/156 — Definition — Substance which has been discarded — Exception — Actual use of that substance for the principal activity — (Council Directive 75/442, as amended by Directive 91/156)

2. Environment — Waste — Directive 75/442, as amended by Directive 91/156 — Other legislation within the meaning of Article 2(1)(b) — National legislation not constituting a measure of application of the directive — Included — Conditions — (Council Directive 75/442, as amended by Directive 91/156, Arts 1(d), 2(1)(b) and 11)

Summary

1. Leftover rock and residual sand from ore-dressing operations from the operation of a mine may not be classified as waste within the meaning of Directive 75/442 on waste, as amended by Directive 91/156, if the holder uses them lawfully for the necessary filling in of the galleries of that mine and provides sufficient guarantees as to the identification and actual use of the substances to be used for that purpose.

see para. 43, operative part 1

2. In so far as it does not constitute a measure of application of Directive 75/442, as amended by Directive 91/156, and in particular Article 11 of that directive, national legislation must be regarded as other legislation within the meaning of Article 2(1)(b) of that directive covering a category of waste mentioned in that provision, if it relates to the management of that waste as such within the meaning of Article 1(d) of Directive 75/442, and if it results in a level of protection of the environment at least equivalent to that aimed at by that directive, whatever the date of its entry into force.

see para. 61, operative part 2
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Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Scope — Services whose performances must be accompanied by special security measures — Surveillance of a Member State's coast by aerial photography — Excluded — (Council Directive 92/50, Art. 4(2))

Summary

When performance of services involving surveillance of the coast of a Member State by means of aerial photography must be accompanied by special security measures within the meaning of Article 4(2) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, that directive does not apply to those services.

see paras 36-37
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Transport — Road transport — Special rules for the traffic of goods by road through Austria — Ecopoints system for heavy goods vehicles — Transit journeys — Burden of proof borne by the Austrian authorities — Driver setting the ecotag upon entry into Austrian territory — Relevance — Limits — (Protocol No 9 to the 1994 Act of Accession, Article 11(2)(c); Commission Regulation No 3298/94, Art. 2(2) and (5))

Summary

In order for heavy goods vehicles transiting through Austria to fall within the ecopoints system established by Protocol No 9 to the 1994 Act of Accession on road, rail and combined transport in Austria, a single journey must cross Austria and have its departure point and destination outside Austrian territory, which means that proof must be adduced not only of the entry of the heavy goods vehicle into Austrian territory, but also of its departure therefrom. It is apparent from the first subparagraph of Article 2(2) and Article 2(5) of Regulation No 3298/94 laying down detailed measures concerning the system of Rights of Transit (Ecopoints) for heavy goods vehicles transiting through Austria that it is for the Austrian authorities to put in place a system which allows for monitoring not only the entry into but also the departure from Austrian territory of heavy goods vehicles. Moreover, if drivers provide inexact information owing to the ecotag being incorrectly set on their vehicles, it is for the Austrian authorities to correct those errors, as under the Community rules it is their responsibility to manage the system.

see paras 44-47, 50
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Customs union – Harmonisation of laws – Procedures for the release of goods for free circulation – Taking of a sample of the goods imported – Possibility for a declarant present when a sample was taken to challenge that sample’s representativeness at a later date – Limits

(Council Regulation No 2913/92, Art. 70; Council Directive 79/695, Arts 9 and 10; Commission Directive 82/57, Art. 11)

Summary

Directive 79/695 on the harmonisation of procedures for the release of goods for free circulation and Directive 82/57 laying down certain provisions for implementing that directive, as amended by Directive 83/371, together with Regulation No 2913/92 establishing the Community Customs Code, must be interpreted as meaning that it is permissible for a customs declarant or his representative present when a sample was taken by the customs authorities of imported goods and who did not at the time challenge the representativeness of that sample to challenge its representativeness when requested by those authorities to pay additional import duties following their analysis of that sample, provided that the goods concerned have not been released or, if they have been released, that they have not been altered in any way whatsoever, which is for that declarant to prove.

(see para. 47, operative part)
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1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade marks devoid of any distinctive character – Three-dimensional marks consisting of the shape of the product – Distinctive character – Criteria by reference to which such character assessed

(Council Regulation No 40/94, Art. 7(1)( b))

2. Appeals – Pleas in law – Review by the Court of Justice of the assessment of matters of fact submitted to the Court of First Instance – Excluded unless the sense of the evidence has been distorted – Application to the present cases of the criteria by reference to which the distinctive character of Community trade marks is assessed

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

Summary

1. The criteria for assessing the distinctive character, within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, of three-dimensional shape-of-products marks are no different from those applicable to other categories of trade mark. None the less, for the purpose of applying those criteria, the relevant public’s perception is not necessarily the same in relation to a three-dimensional mark consisting of the shape and colours of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent from the appearance of the products it denotes. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element and it could therefore prove more difficult to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark.

In those circumstances, the more closely the shape for which registration is sought resembles the shape most likely to be taken by the product in question, the greater the likelihood of the shape being devoid of any distinctive character. Only a trade mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin, is not devoid of any distinctive character for the purposes of that provision.

(see paras 36-37)

2. The Court of First Instance has exclusive jurisdiction to make findings of fact, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence produced to it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.

The actual application to the present cases of the criteria for assessing the distinctive character of Community trade marks, for the purposes of Article 7(1)(b) of Regulation No 40/94, involves findings of a factual nature and, more specifically, the finding that, as regards everyday consumer products, the level of attention paid by the average consumer to the shape and pattern of washing-machine and dishwasher tablets is not high.

(see paras 39, 53)