ddrg/super_eurlex huggingface dataset:
Judgment of the Court (Second Chamber) of 27 June 1989. - REWE-Handelsgesellschaft Nord mbH v Überwachungsstelle für Milcherzeugnisse und Handelsklassen. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - Agriculture - Water content of frozen poultry - Conditions under which checks are conducted. - Case 88/88.



European Court reports 1989 Page 01959

Pub.RJ Page Pub somm



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Agriculture - Common organization of the markets - Poultry meat - Marketing standards - Water content of frozen and deep-frozen chickens, hens and cocks - Conditions under which checks are conducted - Determination by the Member States - Temporary suspension of marketing - Permissibility - Limits

( Council Regulation No 2967/76, Art . 3(2 ) )

Summary

The second indent of the second subparagraph of Article 3(2 ) of Regulation No 2967/76, laying down common standards for the water content of frozen and deep-frozen chickens, hens and cocks, provides that the Member States are to adopt practical measures for checks on the water content of frozen poultry and states that the Member States are to ensure that those checks do not result in unjustified obstacles being placed in the way of the marketing of the poultry concerned . That provision does not preclude national legislation under which the marketing of any batch from which a sample has been taken must be prohibited until the inspection procedure has been completed . However, such suspension of marketing may not exceed the time needed for an effective inspection .

Parties

In Case 88/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesverwaltungsgericht ( Federal Administrative Court ) for a preliminary ruling in the proceedings pending before that court between

REWE-Handelsgesellschaft Nord mbH

and

UEberwachungsstelle fuer Milcherzeugnisse und Handelsklassen ( Supervisory Bureau for Dairy Products and Goods Classification )

on the interpretation of the second indent of the second subparagraph of Article 3(2 ) of Council Regulation No 2967/76 of 23 November 1976 laying down common standards for the water content of frozen and deep-frozen chickens, hens and cocks ( Official Journal 1976, L 339, p . 1 ),

THE COURT ( Second Chamber )

composed of : T . F . O' Higgins, President of the Chamber, G . F . Mancini and F . A . Schockweiler, Judges,

( the grounds of the judgment are not reproduced )

in answer to the question referred to it by the Bundesverwaltungsgericht, by order of 10 December 1987, hereby rules :

Operative part

The second indent of the second subparagraph of Article 3(2 ) of Regulation No 2967/76 does not prohibit national rules under which any batch of goods from which a sample has been taken must be withheld from the market until the inspection procedure has been completed . Nevertheless, such a suspension of marketing may not exceed the time needed for an effective inspection .
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Common Customs Tariff - Tariff headings - Complete or finished semiconductor device within the meaning of subheading 85.21 D II - Silicon discs which have not undergone the operations necessary to confer on them the essential characteristics of a semiconductor device - Excluded

( Commission Regulation No 1203/86 )

Summary

Regulation No 1203/86 on the classification of goods falling within subheading 85.21 D II of the Common Customs Tariff must be understood as not applying to silicon discs which have to undergo extensive treatment after importation, in particular selective diffusion by irradiation under an electron beam followed by a process of mounting or encapsulation . Such discs lack the essential characteristics of a complete or finished semiconductor device, which is the type of product referred to by that regulation .
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Accession of new Member States to the Communities - Portugal - Freedom to provide services - Portuguese undertaking operating in the construction and public works sector - Right to move with its labour force for the duration of the works - Application by the host Member State of its legislation relating to access to employment by foreign workers - Not permissible

( EEC Treaty, Arts 59 and 60; Act of Accession of 1985, Arts 215 and 216 )

Summary

Articles 59 and 60 of the EEC Treaty and Articles 215 and 216 of the Act of Accession of Portugal must be interpreted as meaning that an undertaking established in Portugal providing services in the construction and public works sector in another Member State may move with its labour force which it brings from Portugal for the duration of the works in question . In such a case, the authorities of the Member State in whose territory the works are to be carried out may not impose on the supplier of services conditions relating to the recruitment of manpower in situ or the obtaining of work permits for the Portuguese work-force . However, those authorities may check whether an undertaking is not circumventing the provisions of Article 216 of the Act of Accession under the cloak of a provision of services .
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Social security for migrant workers - Family benefits - Community rules against the overlapping of benefits - Suspension of entitlement to benefits in the State of employment - Benefits payable under the legislation of the State in which the members of the family reside - Conditions

( Council Regulation No 1408/71, Arts 73 and 76 )

Summary

Article 73 of Regulation No 1408/71 is designed to make it easier for migrant workers to receive family allowances in the State in which they are employed, when their family has not moved with them . It is complemented by Article 76, whose sole purpose is to restrict the possibility of overlapping entitlement to benefits . That provision, as amended by Regulation No 2001/83, must be interpreted as meaning that entitlement to family benefits or allowances under Article 73 in the Member State in which one of the parents is employed is not to be suspended where the benefits or allowances are not payable or are no longer payable in the Member State in whose territory the members of the family reside solely because they have not been applied for or re-applied for .
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Community law - Direct effect - Primacy - Proceedings brought before a national court in order to penalize an infringement of Community law attributable to a provision of national law - Infringement not yet established - Application for interim relief - Existence of a national rule prohibiting that application from being granted - Duties and powers of the court seised

( EEC Treaty, Arts 5 and 177 )

Summary

It is for the national courts, in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions of Community law .

Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with the requirements inherent in the very nature of Community law .

The full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law . It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule .

That interpretation is reinforced by the system established by Article 177 of the EEC Treaty whose effectiveness would be impaired if a national court, having stayed proceedings pending the reply by the Court of Justice to the question referred to it for a preliminary ruling, were not able to grant interim relief until it delivered its judgment following the reply given by the Court of Justice .
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Aid granted by States - Prohibition - Support of the policy pursued under a common organization of the market - Unacceptable justification

( EEC Treaty, Art . 92(1 ) and ( 3)(c ) )

Summary

Once the Community has established a common organization of the market in a particular sector, it is for the Community to seek solutions in the context of the common agricultural policy to the problems which may arise in that sector, for example, on account of over-production . Member States must refrain from taking any unilateral measure even if that measure is likely to support the common policy of the Community . Consequently they may not rely on such support as grounds for not complying with the prohibition of State aid laid down in Article 92 of the Treaty .
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Agriculture - Common organization of the markets - Cereals - Co-responsibility levy - Operations subject to the levy - Placing of products on the market - Concept - Reimbursement of the levy collected in respect of processing carried out by a third party on account of a producer who uses the products on his own holding - Scope - Producers who buy back products processed from cereals previously sold by them to the processors - Exclusion

( Commission Regulations Nos 2040/86, Art . 1(2 ), second subparagraph, as amended by Regulation No 2572/86, 1432/88, Art . 1(2 ), and 3779/88, Art . 1(1 ) )

Summary

In the light of the objective pursued by the co-responsibility levy in the cereals sector, which is to limit structural surpluses on the market, the placing of the products on the market is the distinguishing criterion for determining whether or not traders are liable to pay the levy . Placing on the market occurs as soon as a producer divests himself of the cereals which he has produced to sell them to a processor, whoever he may be, even if the producer subsequently buys back the cereals from the processor in the form of processed products . Accordingly, once it had decided to reimburse to producers who had been adversely affected by the discrimination found to exist by the Court in one of its judgments the levy paid pursuant to Regulation No 2040/86, as amended by Regulation No 2572/86, the Commission was entitled to restrict the benefit of that reimbursement to producers who had used on their own holdings the cereals produced by them and processed on their account by a third party, and not to extend it to producers who had sold the cereals they had produced to a processor and had then bought them back after processing with a view to using them on their own holdings . Similarly, reimbursement of the levy collected pursuant to Regulation No 1432/88 in its original version could be limited to producers who had supplied or made available to a processing undertaking, for processing under contract, the cereals which they had produced and which were intended for use, after processing, on their own holdings .
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1 . Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Economic activities within the meaning of Article 4 of the Sixth Directive - Grant of a building right over immovable property

( Council Directive 77/388, Art . 4(2 ) )

2 . Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Supply of goods - Transfer of the right to dispose of tangible property - Creation of a right in rem giving the holder thereof a right of user over immovable property in a Member State which deems such a right to be tangible property - Inclusion

( Council Directive 77/388, Arts 5(1 ) and ( 3)(b ) )

3 . Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Taxable persons - Concept - Exhaustive definition contained in Article 4 of the Sixth Directive - Exercise by a Member State of the option mentioned in Article 5(3 ) - No effect

( Council Directive 77/388, Arts 4 and 5(3)(b ) )

Summary

1 . The grant by the owner of immovable property to another person of building rights in respect of that property, by authorizing that person to use the immovable property for a specified period in return for consideration, must be regarded an economic activity as defined in Article 4(2 ) of the Sixth Council Directive ( 77/388/EEC ) on the harmonization of the laws of the Member States relating to turnover taxes . Such a transaction entails the exploitation of tangible property for the purpose of obtaining income therefrom on a continuing basis within the meaning of the second sentence of Article 4(2 ) of the Sixth Directive .

2 . Under the terms of Article 5(1 ) of the Sixth Directive "supply of goods" means the transfer of the right to dispose of tangible property as owner . In so far as a Member State has made use of the possibility provided for in Article 5(3)(b ) of the Sixth Directive to consider rights in rem giving the holder thereof a right of user over immovable property to be tangible property, the term "transfer" used in Article 5(1 ) must be interpreted as also covering the creation of such a right .

3 . In accordance with the purpose of the Sixth Directive which is inter alia to found a common system of value added tax upon a uniform definition of "taxable persons", the scope of Article 4 of the Sixth Directive, concerning taxable persons, cannot be altered by the fact that a Member State has or has not exercised the option of assimilating the creation of a building right to the supply of goods, as provided for in Article 5(3)(b ) of the directive .
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Tax provisions - Domestic taxes - Discrimination - Prohibition - Levying of VAT on goods imported from another Member State by a non-taxable person - Obligation on Member States to adopt measures allowing account to be taken of the residual tax still contained in the value of the imported goods

(EEC Treaty, Art. 95)

Summary

A Member State fails to fulfil its obligations under Article 95 of the EEC Treaty if it does not adopt the measures necessary to permit persons not subject to VAT who import into its national territory goods on which VAT has already been charged in another Member State, without the possibility of obtaining a refund of that tax, to deduct from the VAT due on importation the amount of VAT paid in the Member State of exportation which is still contained in the value of the goods at the time of their importation, when the supply of similar goods by non-taxable persons within the national territory is not subject to VAT.

The full and complete application of the prohibition of discrimination laid down in Article 95 cannot be ensured solely by the fact that that provision, being directly effective, may be relied on before national courts, since that is no more than a minimum guarantee and cannot resolve the difficulties, regarding the requirements of legal certainty, created by the retention in domestic legislation of provisions which do not provide for account to be taken of the residual amount of tax.

Defence submissions based on the nature of VAT or on the apportionment of tax revenue between Member States can be of no avail in denying the failure to fulfil obligations. In the first place, the deduction in the Member State of importation of the amount of VAT paid in the Member State of exportation and still contained in the value of the goods at the time of their importation does not call in question the inherent nature of VAT as a tax on consumption, in so far as such a description is independent of the apportionment of the tax charge between the Member State of exportation and that of importation. Secondly, whilst the establishment of a common system of VAT entailing complete neutrality in the field of competition, the full remission in the State of exportation of VAT in respect of the goods in question, as well as the fair and equitable apportionment of tax revenue between Member States are all matters for the Community legislature, so long as such a system is not established, Article 95 precludes a Member State from applying its system of VAT to imported products in a manner contrary to the principle of non-discrimination in matters of taxation.
Even though Regulation No 3730/85, allocating certain catch quotas between Member States for vessels fishing in the Norwegian economic zone and the fishery zone around Jan Mayen, and Regulation No 3732/85, allocating catch quotas between Member States for vessels fishing in Faroese waters, do not refer expressly to Article 10 of Regulation No 2057/82 establishing certain control measures for fishing activities by vessels of the Member States, the Member States must none the less comply with that provision, since it is a general rule essential to the effectiveness of any system for the conservation and management of fishery resources based on the division in the form of quotas allocated to the Member States of the catch volume available to the Community.

A Member State may not escape the obligation imposed on it by Article 10(2) of Regulation No 2057/82 provisionally to prohibit fishing by vessels flying its flag or registered in its territory as from the date on which the catches subject to quota are deemed to have exhausted the national quota by invoking practical difficulties which prevented it from foreseeing the imminent exhaustion of the quotas. The control measures laid down in Regulation No 2057/82, particular Articles 6 and 9, which provide for the verification and recording of landings, if properly observed and enforced, should provide the national authorities with enough information to enable them to anticipate the exhaustion of the quotas and act accordingly. Moreover, if in its view those measures are inadequate, it is open to a Member State, under Article 14 of Regulation No 2057/82, to adopt additional measures going beyond the minimum requirements laid down in that regulation.
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Freedom of movement for persons - Right of entry and residence of nationals of the Member States - Documents to be produced in order to obtain grant of the right of residence - Production of a valid identity card that is not a travel document - - Sufficient proof of identity and nationality

(Council Directive 68/360/EEC, Art. 4(1))

Summary

Since an identity card serves only to prove the identity and nationality of its holder, Article 4(1) of Directive 68/360 must be interpreted as meaning that a Member State is required to recognize the right of residence within its territory of the workers referred to in Article 1 of that directive when they produce a valid identity card, even if that card does not authorize its holder to leave the territory of the Member State in which it was issued.

The fact that the identity card was issued before the accession to the Communities of the Member State which issued it, that it does not mention that its validity is limited to the national territory and, finally, that its holder was admitted to the host Member State upon production of his passport alone does not alter the situation.
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Social policy - European Social Fund - Assistance in the financing of vocational training measures - Decision reducing the assistance originally granted - Opportunity for the Member State concerned to comment prior to the adoption of the decision - Essential procedural requirement - Infringement - Unlawfulness

(Council Regulation No 2950/83, Art. 6(1))

Summary

In the procedure for the grant by the European Social Fund of financial assistance for vocational training and guidance given in a Member State the Member State concerned is the sole interlocutor of the Fund and assumes responsibility in so far as it certifies the accuracy of the facts and accounts in payment claims submitted by the beneficiaries and in so far as it may even be required to guarantee that training measures are properly implemented and concluded. In view of the central role of the Member State concerned and having regard to the importance of the responsibilities which that State assumes in the presentation and supervision of the financing of training measures, the opportunity which it has under Article 6(1) of Regulation No 2950/83 to comment before a definitive decision to reduce financial assistance originally granted is adopted constitutes an essential procedural requirement the disregard of which renders the contested decision to reduce the assistance void.
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Tax provisions - Internal taxation - System of differentiated taxation of spirits - Similar or competing products - Criteria for assessment - Irrelevance of consumer habits - Category most heavily taxed covering almost exclusively imported products - Not permissible

(EEC Treaty, Art. 95)

Summary

A Member State is in breach of its obligations under Article 95 of the EEC Treaty if, in connection with value added tax, it applies to spirits a system of differentiated rates arranged so that all products produced domestically fall within the most favourable tax category, whereas imported products, in respect of which there is no national production, fall, with a few exceptions, under the most heavily taxed category.

With regard to Article 95, there is either a similarity between, or sufficiently marked characteristics common to, spirits such as to enable it to be said that they are at least partly or potentially in competition.

As far as the possible degree of substitution between beverages is concerned, it is immaterial that those benefiting from the favourable rate are regarded as traditional national drinks and consumed extensively in the country concerned, whereas those taxed more heavily are regarded by the consumer as luxury products. For the purpose of measuring the possible degree of substitution it is impossible to restrict oneself to consumer habits in a Member State or in a given region. Those habits, which are essentially variable in time and space, cannot be considered to be immutable; the tax policy of a Member State must not therefore serve to crystallize given consumer habits with a view to consolidating an advantage acquired by national industries concerned to comply with them.