ddrg/super_eurlex huggingface dataset:
Opinion of Mr Advocate General Jacobs delivered on 25 October 2001. - Commission of the European Communities v Grand-duché de Luxembourg. - Failure by a Member State to fulfil its obligations - Directive 98/76/EC - Failure to transpose within the prescribed period. - Case C-107/01.



European Court reports 2001 Page I-10357



Opinion of the Advocate-General

1. In this case the Commission seeks a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Council Directive 98/76/EC of 1 October 1998 amending Directive 96/26/EC on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations, or in any event by failing to inform the Commission thereof, the Grand Duchy of Luxembourg has failed to comply with its obligations under the Directive.

2. Under Article 2 of Directive 98/76, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 1 October 1999 and forthwith to inform the Commission thereof.

3. In its defence, Luxembourg states that a draft law transposing the Directive and two draft grand-ducal regulations have been approved by the government and have been transmitted to the bodies which must, under the Constitution, be consulted.

4. Since it appears that Luxembourg has not implemented the Directive, the Commission is entitled to the declaration which it seeks.

Conclusion

5. Accordingly, the Court should in my opinion:

(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Council Directive 98/76/EC of 1 October 1998 amending Directive 96/26/EC on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport operations, or in any event by failing to inform the Commission thereof, the Grand Duchy of Luxembourg has failed to comply with its obligations under the Directive;

(2) order the Grand Duchy of Luxembourg to pay the costs.
Opinion of Mr Advocate General Jacobs delivered on 7 March 2002. - Commission of the European Communities v Grand Duchy of Luxemburg. - Failure by a Member State to fulfil its obligations - Failure to transpose Directive 98/8/EC. - Case C-372/01.



European Court reports 2002 Page I-04553



Opinion of the Advocate-General

1. In this case the Commission seeks a declaration, pursuant to Article 226 EC, that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

2. The Directive lays down provisions governing:

(a) the authorisation and the placing on the market for use of biocidal products within the Member States;

(b) the mutual recognition of authorisations within the Community; and

(c) the establishment at Community level of a positive list of active substances which may be used in biocidal products.

3. Pursuant to Article 34 of the Directive, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 13 May 2000, and to communicate to the Commission the texts of the provisions which they adopt.

4. Having received no communication from the Grand Duchy of Luxembourg on implementing measures, the Commission introduced the present application.

5. The Grand Duchy of Luxembourg states in its defence that a draft law transposing the essential provisions of the Directive has been brought before the Luxembourg Parliament and submitted to the Conseil d'État for an opinion. A draft Grand-Ducal regulation will complete the transposition on points of detail.

6. It follows that the Commission is entitled to the declaration which it seeks.

Conclusion

7. The Court should therefore in my opinion:

(1) declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

(2) order the Grand Duchy of Luxembourg to pay the costs.
((Failure of a Member State to fulfil its obligations – Quality of bathing water – Inadequate implementation of Directive 76/160/EEC))
((Common organisation of markets – Milk and milk products – Validity of Regulation (EC) No 2799/1999 – Powers – Legitimate expectations – Equal treatment))
((Free movement of goods – Measures having an equivalent effect to quantitative restrictions on exports – Justification for the protection of industrial property – Regulation (EEC) No 2081/92 – Use of protected designations of origin – Requirement for ham to be sliced and packaged in the region of production))
((Article 59 of the EC Treaty (now, after amendment, Article 49 EC) – Taxation of non-residents' income – Tax rate – Deduction of business expenses))
((Compatibility of provisions of national administrative law with the principles of proportionality and the right to effective judicial protection – Seizure – Obligation incumbent on the Member States during the period prescribed for the transposition of a directive and after expiry of that period – Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity))
((Free movement of goods and services – Commercial monopolies – Operation of games of chance – Restriction to casinos within zones specified by law – Assessment))
((Appeal – Bananas – Common organisation of the markets – Export licence scheme – Action for damages – Proof of damage and causal link – Pleas directed against grounds included only for the sake of completeness – Rejection – Plea alleging incorrect assessment of the evidence – Inadmissibility))
((Freedom to provide services – Freedom of establishment – Online collection and forwarding to another Member State of sports bets – Prohibition under criminal law – National legislation which reserves to specific entities the right to collect bets))
((Freedom to provide services – Article 22 of Regulation (EEC) No 1408/71 – Validity – Requirement of prior authorisation for hospital treatment in a Member State other than the State of insurance – Conditions))
((Interpretation of Articles 28 EC and 30 EC, Council Directive 92/28/EEC on the advertising of medicinal products for human use and Directive 2000/31/EC of the European Parliament and of the Council ( Directive on electronic commerce) – National legislation restricting the supply of medicinal products for human use by a pharmacy established in another Member State on the basis of individual orders placed by consumers on the internet – Prescription requirement – Prohibition on advertising the sale of medicinal products by mail order – Internet pharmacy))
((Equal treatment for men and women – Transsexual not entitled to a survivor's pension payable solely to a surviving spouse – Fundamental right to marry))
((Free movement of goods – Trade with non-member countries – Returned goods – Reimport of compensating products re-exported subsequent to an inward processing procedure – Determination of import duties – Burden of proving the proportion of the Community value in reimported goods))
((Failure of a Member State to fulfil its obligations – Failure to transpose into national law, within the prescribed period, Directive 98/84/EC of the European Parliament and of the Council on the legal protection of services based on, or consisting of, conditional access – Directive transposed by legislation in force))
((Protection of species of wild fauna and flora – Article 2(w) and Article 8(3) of Regulation (EC) No 338/97 – Worked specimen – Stuffed animals – Specimen acquired more than 50 years previously – Article 32 of Regulation (EC) No 939/97 and Article 32 of Regulation (EC) No 1808/2001 – Need for a certificate))
(Additional levy on milk – Annual statement of quantities of milk delivered to the purchaser – Late notification – Penalty – Validity of Article 3(2) of Regulation (EEC) No 536/93)
(Equal pay for male and female workers – Childcare leave (unpaid parental leave) – Military service – Consideration when calculating a termination payment)
(Free movement of workers – Freedom of establishment – Freedom to provide services – Activities of private security services – Requirement of a permanent establishment – Consideration of evidence furnished in other Member States – Required minimum amount of capital – Requirement of formation as a legal person – Requirement for a national professional licence – Recognition of attestations of competence)
(State aid – Definition of aid – Collective advertising campaigns in favour of a sector of the economy – Financing by means of a special contribution payable by undertakings in the sector – Financing decided by a body governed by public law)
(Sixth VAT Directive – Article 25 – Common flat-rate scheme for farmers – Leasing out by a farmer of some of the assets of his farm – Application of the general scheme to the income from the leasing arrangement)
(Appeal – Community trade mark – Article 7(1)(b) of Regulation (EC) No 40/94 – ‘DAS PRINZIP DER BEQUEMLICHKEIT’ – Refusal of registration – Lack of distinctive character)
(Failure to comply with Article 15(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts – Assistance to the awarding body (Chauvinière sewage treatment works) – Award of the contract by the Communauté Urbaine du Mans to a successful candidate in an earlier design contest without prior publication of tender notice in Official Journal of the European Communities)
(Measures having equivalent effect – Protection of health – Foodstuffs enriched with additives – Marketing subject to a nutritional need)
(Free movement of goods – Decision 92/353/EEC – Intra-Community trade in equidae – Article 2(2), first indent – Procedure for the approval or recognition of organisations and associations which maintain or establish stud-books for registered equidae – Rights of an existing organisation or association)
(Family benefits – Grant of advances on maintenance payments for minor children – Child of a prisoner – Residence requirement – Custodial sentence served in another Member State)
(Appeal – Community trade mark – Word and figurative mark HUBERT – Opposition of the proprietor of the national word mark SAINT-HUBERT 41 – Breach of the principle under which the parties delimit the scope of proceedings – Infringement of the concept of likelihood of confusion)
(Directive 75/442/EEC on waste – Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’ – Soil contaminated by leaked fuel)
(Directive 89/104/EEC – Article 6(1)(c) – Limits to protection conferred by trade mark – Use of trade mark by third party – Conditions)
(Free movement of capital – Direct taxation – Wealth tax – Entitlement to allowance – Distinction between resident and non-resident taxpayers – Non-resident taxpayer whose ‘taxable assets’ are situated entirely in the taxing Member State)
(Telecommunications – General authorisations and individual licences – Directive 97/13/EC – Article 11 – Fees and charges for individual licences – Individual licences for scarce resources – Requirements – Telephone numbers – Obtained free of charge by the successor to the former State monopoly – Allocated to new operators against payment)
41.

The Court has recently had the opportunity, in the judgment in Groupe Limagrain Holding, cited above, to rule on the function of the stock records in the context of entitlement to advance payment of an export refund. In that judgment, that entitlement was subject to, inter alia, proof that the products in respect of which a payment declaration had been submitted had been placed, and remained, under the customs warehousing procedure until they were exported. The Court noted that the placing of those products under the customs warehousing procedure was intended to guarantee that the products referred to in the payment declaration and the goods actually exported were identical. Where the products are not correctly placed under the customs warehousing procedure, proof that the products covered by the advance payment declaration have in fact been exported cannot be satisfactorily provided. The Court likened to a withdrawal from customs control the situation in which there has been a failure to comply with the obligation to maintain, in accordance with the European Union customs legislation, stock records in respect of products placed under that control. In both cases, the customs authorities are deprived of their ability to check the route taken by the products concerned and, consequently, to ensure that there has been compliance with the conditions governing the system of advance payment of export refunds. ( 8 )
78.

A point of principle seems to me to be relevant in this regard. Against the foregoing it could be argued that the effectiveness of leniency programmes can be safeguarded only if it is guaranteed that, as a general rule, the documentation provided will be used by the Commission alone. This would, of course, be the ultimate safeguard. However, other safeguards should also be considered that are less extensive but still attractive for those wanting to take advantage of those programmes. In the final analysis, the rationale underlying leniency programmes is a calculation as to the extent of the harm that might arise from an infringement of competition law. Considered in those terms, to guarantee that the information provided to the Commission can be passed on to third parties only if they can adequately prove that they need it in order to bring an action for damages could constitute a sufficient safeguard, particularly considering that the alternative might be a penalty higher than that which might ensue were the action for damages to be successful. Admittedly, it is possible that a safeguard of that kind might result in fewer parties deciding to take advantage of leniency programmes. However, the objective of maximum effectiveness for that mechanism should not be regarded as justification for a complete sacrifice of the rights of those concerned to be compensated and, more generally, for an impairment of their rights to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union.
16.

The referring court wonders whether the proposal should be rejected as inadmissible on the ground that it does not provide for full payment of Degano’s VAT debt. It doubts however whether the Member States’ obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due, as set out in the Court’s case-law, in fact precludes an arrangement in which only part of a VAT debt is satisfied, provided that the debt would not be better satisfied in bankruptcy proceedings. It therefore requests a preliminary ruling on the following question: ‘On a proper construction, do the principles and rules contained in Article 4(3) TEU and [the VAT Directive], as already interpreted in the judgments of the Court of Justice in Commission v Italy, C‑132/06, EU:C:2008:412, Commission v Italy, C‑174/07, EU:C:2008:704 and Belvedere Costruzioni, C‑500/10, EU:C:2012:186, also preclude a national rule (and, therefore, in respect of the case in the main proceedings, an interpretation of Articles 162 and 182ter of the Bankruptcy Law) under which a proposal for an arrangement with creditors with the liquidation of the debtor’s assets, which provides for only partial payment of the State’s claim in respect of VAT, is permissible where there is no tax settlement and where, in respect of that claim, a larger payment in the event of bankruptcy is not foreseeable on the basis of an assessment by an independent expert and following the formal review of the court?’
7.

Paragraphs 53 and 54 of the Federal Law on the Pension Rights of Federal Civil Servants, their Survivors and the Members of their Families (Law on Pensions 1965) (Bundesgesetz über die Pensionsansprüche der Bundesbeamten, ihrer Hinterbliebenen und Angehörigen (Pensionsgesetz 1965)) of 18 November 1965, ( 3 ) were, in the version in force at the time of the facts of the dispute in the main proceedings, worded as follows: ‘Pre-service pensionable periods which may be credited Paragraph 53 (1) Pre-service pensionable periods are the periods listed in subparagraphs 2 to 4, in so far as they precede the date from which the period of federal civil service which gives entitlement to a pension runs. Those periods become periods which give entitlement to a pension by being credited. (2) The following pre-service pensionable periods shall be credited: (a) contribution periods in the service of, as an apprentice of or in another employment relationship with a domestic public-law employer, ... (h) the period of a complete course of study … at a public school or school established under public law, institution of higher education, academy or related training establishment, provided that the statutory minimum duration of the course of study is not exceeded, ... (k) time completed in an occupational training relationship in so far as that training constituted a precondition for the recruitment of the civil servant or where it was carried out with a national public-sector employer; (l) a period of employment creating an obligation to pay pension insurance contributions under the provisions [of the General Social Security Law (Allgemeines Sozialversicherungsgesetz) of 9 September 1955, ( 4 )] applicable on 31 December 2004, ... Exclusion of credit and waiver Paragraph 54 ... (2) The following pre-service pensionable periods are excluded from being credited: (a) periods completed by the civil servant before reaching the age of 18; this limitation does not apply to periods which must be credited in accordance with Paragraph 53(2)(a), (d), (k) and (l), if a transfer contribution is to be paid for such periods in accordance with social security legislation; ... (5) The second indent of subparagraph 2(a) applies only to civil servants to whom Paragraph 88(1) does not apply …’
8.

Pursuant to Article 63 of Directive 2014/24: ‘1. With regard to criteria relating to economic and financial standing … and to criteria relating to technical and professional ability … an economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. … Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing a commitment by those entities to that effect. … Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require that the economic operator and those entities be jointly liable for the execution of the contract. … 2. In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting authorities may require that certain critical tasks be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators as referred to in Article 19(2), by a participant in that group.’
35.

I should like to state at the outset that, at the hearing, the applicant in the main proceedings argued, inter alia, that the habitual place of residence of the child V was not in the Netherlands, but in Lithuania. In his submission, once a court has decided that a child’s place of residence is with one or other parent, it is that ‘legal’ place of residence that must be regarded as the child’s habitual place of residence. However, according to settled case-law, ‘the concept of “habitual residence” under Article 8(1) of [Regulation No 2201/2003] corresponds to the place which reflects some degree of integration [of] the child in a social and family environment. That place must be established by the national court, taking account of all the circumstances of fact specific to each individual case.’ ( 5 ) The Court has added that, ‘among the tests which should be applied by the national court to establish the place where a child is habitually resident, particular mention should be made of the conditions and reasons for the child’s stay on the territory of a Member State, and the child’s nationality … As the Court explained, moreover, in paragraph 38 of [its judgment of 2 April 2009,] A, [ ( 6 )] in order to determine where a child is habitually resident, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent’. ( 7 )
44.

According to the second interpretation, supported by the Greek Government and the European Commission, the services of loading and unloading cargo may be exempt from VAT only where they are provided at the end of the commercial chain and are supplied directly to the shipowner. To that effect, the Greek Government argues that those services may be exempt only on condition that the cargo contains goods necessary to the operation and maintenance of the vessel. In its submission, the only services eligible for exemption are therefore those which are linked to the vessel itself and which are supplied to the shipowner itself. In support of its interpretation to the effect that only the final transaction, that is to say only the service supplied to the shipowner, may be exempt under Article 148(d) of the VAT Directive, the Commission states that that interpretation does not penalise any link in the commercial chain since the person who performs the transaction qualifies for the right to deduct. Thus, where subcontractors are used, the services supplied to the shipowner by the principal undertaking may be exempt under Article 148(d) of the VAT Directive, whereas the services supplied to the principal undertaking by the subcontractor cannot be exempt, since they are not provided at the final stage of the commercial chain, although this does not prevent the principal undertaking from subsequently deducting the VAT it paid to its subcontractor or having it refunded. According to the Commission, the interpretation proposed is alone consistent with the Court’s case-law and the principle that the exemptions referred to in Article 148 of the VAT Directive are to be treated as exports. It also helps ensure that the application of the exemption is straightforward, whereas extending that exemption to earlier stages of the commercial chain creates practical difficulties.