ddrg/super_eurlex huggingface dataset:
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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.

A defence based on the absence at present of a common system applicable to the imports in question can be of no avail in denying the failure to fulfil obligations. While the establishment of such a system is a matter for the Community legislature, so long as such a system is not established, Article 95 precludes a Member State from applying its own system of VAT to imported products in a manner contrary to the principle of non-discrimination in matters of taxation.
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Tax provisions - Harmonization of legislation - Exemption from turnover tax and excise duty - Goods contained in travellers' personal luggage - Residual powers of Member States - Scope - Establishment of a quantitative limit for beer - Not permissible

( Council Directive 69/169, Art . 4(1 ) )

Summary

In the field of exemption from turnover tax and excise duty for goods contained in travellers' personal luggage, Member States are left with only the restricted power specifically given to them by Directive 69/169, as later supplemented and amended . That directive does not provide for the possibility of laying down quantitative limits for goods which, like beer, are not expressly included in the list set out in Article 4(1 ) of the directive . Accordingly, a Member State may not extend that list by establishing for beer a 10-litre limit, beyond which, by virtue of an irrebuttable presumption, any importation is regarded as having a commercial character .
Judgment of the Court (Second Chamber) of 28 February 1989. - Wilhelm Schmitt v Bundesversicherungsanstalt für Angestellte. - Reference for a preliminary ruling: Sozialgericht Hamburg - Germany. - Article 51 of the EEC Treaty - Possibility of back-paying contributions to a pension insurance scheme. - Case 29/88.



European Court reports 1989 Page 00581

Pub.RJ Page Pub somm



Summary

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Social security for migrant workers - Affiliation to a social security scheme - Conditions - Application of national legislation

( EEC Treaty, Article 51; Regulation No 1408/71 of the Council )

Summary

Article 51 of the EEC Treaty and Regulation No 1408/71 provide only for the aggregation of insurance periods completed in different Member States . They do not, however, regulate the conditions under which those insurance periods are constituted . The conditions governing the right or obligation to become a member of a social security scheme are a matter to be determined by the legislation of each Member State ( see the judgments of 12 July 1979 in Case 266/78 Brunori v Landesversicherungsanstalt Rheinproving (( 1979 )) ECR 2705 and of 24 April 1980 in Case 110/79 Coonan v Insurance Officer (( 1980 )) ECR 1445 ). They are not therefore applicable for the purpose of determining the conditions of affiliation to a social security scheme, whether compulsory or voluntary .

Parties

In Case 29/88

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

Wilhelm Schmitt, a retired office worker, residing in Hamburg,

and

Bundesversicherungsanstalt fuer Angestellte ( Federal Insurance Office for Clerical Staff ), Berlin,

on the interpretation of Article 51 of the EEC Treaty,

THE COURT ( Second Chamber ),

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

( the grounds of the judgment are not reproduced )

in answer to the question submitted to it by the Sozialgericht Hamburg, by order of 12 May 1987, hereby rules :

Operative part

Article 51 of the EEC Treaty and Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community are not applicable for the purpose of determining the conditions of affiliation to a social security scheme, whether compulsory or voluntary .
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Community law - Principles - Right to a fair hearing - Observance of that right in administrative proceedings - Anti-dumping - Obligation on the institutions to ensure that undertakings concerned are given information with due diligence - Scope - Details concerning communication - Information to be communicated - Method of calculating the definitive anti-dumping duty - Not included

(Council Regulation No 2176/84, Art. 7(4)(a), (b) and (c)(ii) )

Summary

The right to a fair hearing, as a principle of fundamental character, must be observed not only in administrative proceedings which may result in the imposition of penalties, but also in investigative proceedings such as those prior to the adoption of anti-dumping regulations which, despite their general scope, may directly and individually affect the undertakings concerned and entail adverse consequences for them.

So far as the defence against dumping practices is concerned, any action taken by the Community institutions must be all the more scrupulous in view of the fact that, as they stand at present, the rules in question do not provide all the procedural guarantees for the protection of the individual which may exist in certain national legal systems.

In performing their duty to provide information under Article 7(4)(b) of Regulation No 2176/84, the Community institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information. In any event, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury.

Although the information requested may, under Article 7(4)(c)(ii) of

Regulation No 2176/84, be supplied in a purely oral manner, that possibility cannot release the Community authorities from their obligation to ensure that they have evidence enabling them, if necessary, to prove that such information was actually communicated.

While it is true that the amount of the definitive duty constitutes essential information, such is not the case with regard to the type of duty adopted and its method of calculation, if only because the choice between the various types of anti-dumping duties has in principle no effect on the final amount of that duty. The absence of such information cannot therefore be treated as infringing the right to a fair hearing.
Judgment of the Court of 6 December 1989. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose a directive. - Case C-329/88.



European Court reports 1989 Page 04159

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Summary

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1.Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification - Unwarrantable

( EEC Treaty, Art . 169 )

2.Action for failure to fulfil obligations - Right of action of the Commission - Discretionary exercise

( EEC Treaty, Art . 169, second paragraph )

Summary

1.According to well-established case-law, a Member State cannot plead provisions, practices or circumstances existing in its internal legal system in order to defend a failure to comply with obligations and time-limits laid down in Community directives .

2.If the Member State to which a reasoned opinion has been issued has not, by the end of the period which the Commission may lay down under the second paragraph of Article 169 of the Treaty, put an end to the failure of which it is accused, the Commission is at liberty to decide whether or not to bring the matter before the Court of Justice .

Parties

In Case C-329/88

Commission of the European Communities, represented by Maria Condou-Durande, Legal Adviser in its Legal Department, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by N . Frangkakis, Legal Adviser to the Permanent Representation of Greece to the European Communities in Brussels, E . Marinou, a member of the Special Legal Department for the European Communities in the Ministry of Foreign Affairs, and A . Pliakos, Legal Adviser in the Ministry of Trade,

defendant,

APPLICATION for a declaration that by failing to adopt and to communicate to the Commission within the prescribed period the laws, regulations and administrative provisions needed to comply with Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising ( Official Journal 1984, L 250, p . 17 ), the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty,

THE COURT

composed of : O . Due, President, C . N . Kakouris and M . Zuleeg ( Presidents of Chambers ), T . Koopmans, R . Joliet, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, F . Grévisse and M . Diez de Velasco, Judges,

( the grounds of the judgment are not reproduced )

hereby :

Operative part

( 1 ) Declares that, by failing to adopt within the prescribed period the measures necessary to implement Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising, the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty;

( 2 ) Orders the Hellenic Republic to pay the costs .
Judgment of the Court of 3 July 1990. - Commission of the European Communities v Federal Republic of Germany. - Failure of a Member State to fulfil its obligations - Directive on the conservation of wild birds. - Case C-288/88.



European Court reports 1990 Page I-02721

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1 . Member States - Obligations - Implementation of directives - Failure not contested

( EEC Treaty, Art . 169 )

2 . Environment - Conservation of wild birds - Directive 79/409 - Implementation by the Member States - Obligation to prohibit the means of hunting and methods of destruction banned by the directive - Derogations from the prohibitions laid down by the directive - Conditions for granting

( Council Directive 79/409, Arts 5, 8 and 9, Annex IV )

Parties

In Case C-288/88,

Commission of the European Communities, represented by Ingolf Pernice, a member of its Legal Department, with an address for service in Luxembourg at the office of Georgios Kremlis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Federal Republic of Germany, represented by Ernst Roeder, Regierungsdirektor in the Federal Ministry of the Economy, acting as Agent, with an address for service in Luxembourg at the Embassy of the Federal Republic of Germany, 20-22 avenue Émile-Reuter,

defendant,

APPLICATION for a declaration that the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty by not adopting all the laws, regulations and administrative provisions needed to comply with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ( Official Journal 1979 L 103, p . 1 ),

THE COURT

composed of : F . A . Schockweiler, President of Chamber, for the President, M . Zuleeg, President of Chamber, G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida, F . Grévisse, M . Díez de Velasco, Judges,

( The grounds of the judgment are not reproduced .)

hereby :

Operative part

( 1 ) Declares that the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty by not adopting all the measures necessary to implement Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

( 2 ) Orders the Federal Republic of Germany to pay the costs .
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1 . Social security for migrant workers - Community rules - Persons covered - Part-time workers - Included

( Council Regulation No 1408/71, Arts 1(a ) and 2(1 ) )

2 . Social security for migrant workers - Applicable legislation - Legislation of the State of employment - Part-time post - No effect

( Council Regulation No 1408/71, Art . 13(2)(a ) )

3 . Social security for migrant workers - Affiliation to a social security scheme - Conditions - Residence condition imposed by the legislation of the State of employment - May not be relied on against an employed person who is resident in the territory of another Member State

( Council Regulation No 1408/71, Art . 13(2)(a ) )

Summary

1 . A person must be considered to be covered by Regulation No 1408/71 if he meets the conditions laid down in Article 1(a ) in conjunction with Article 2(1 ) of the regulation, irrespective of the amount of time which he devotes to his activities .

2 . If the objective pursued by Article 13(2)(a ) of Regulation No 1408/71 is not to be frustrated, that provision must be interpreted as meaning that a person covered by that regulation who is employed part-time in the territory of a Member State is subject to the legislation of that State both on the days on which he pursues that activity and on the days on which he does not .

3 . Although Article 13(2)(a ) of Regulation No 1408/71 is not intended to lay down the conditions for affiliation to the various national social security schemes, the effect of that provision, where applicable, is to replace, as a condition of affiliation, residence in the Member State concerned with employment in that Member State . Therefore, as a consequence of that article, a provision of the applicable national legislation under which membership of the insurance scheme established by that legislation is subject to the condition of residence in the Member State in whose territory the activity as an employed person is pursued may not be relied on against an employed person .
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Social security for migrant workers - Old-age and survivors' insurance - Benefits - Adjustments - Recalculation - Conditions

( Council Regulation No 1408/71, Art . 51 )

Summary

Article 51 of Regulation No 1408/71 is to be interpreted as meaning that when, under national rules against the overlapping of benefits, the pension paid to a worker by a Member State has been calculated at an amount such that, when added to the amount of a benefit of a different kind paid by another Member State, it does not exceed a certain ceiling, the pension is not to be recalculated in order to prevent that ceiling from being exceeded if subsequent adjustments are made to the other benefit on account of the general evolution in the economic and social situation .
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Agriculture - Common organization of the markets - Milk and milk products - Additional levy on milk - Determination of reference quantities exempt from the levy - Account taken of exceptional events affecting production - Limits - Production affected in a year other than the reference year - Exclusion - Choice by a Member State of 1983 as the reference year - Variation of reference quantities - Account taken of the situation of a category of producers whose production was previously affected by an exceptional event - Whether permissible

( Council Regulation No 857/84, Arts 2(2 ) and 3(3 ); Commission Regulation No 1371/84, Arts 2(1 ) and 3 )

Summary

The provisions of Article 3(3 ) of Regulation No 857/84 in conjunction with Article 3 of Regulation No 1371/84 do not apply to the situation of producers whose milk production was affected by an exceptional event in a year other than the reference year adopted by the Member State concerned . However, in the case of a Member State which has chosen 1983 as the reference year and has made use of the option of varying the percentage weighting for the determination of the reference quantities on the basis of the trend in deliveries by producers between 1981 and 1983, the provisions of Article 2(2 ) of Regulation No 857/84 in conjunction with Article 2(1 ) of Regulation No 1371/84 permit account to be taken for the purposes of such variation of the situation of the category of producers whose milk production was affected by an exceptional event in 1981 or 1982 .
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Member States - Obligations - Implementation of directives - Failure - Justification - Not permissible

( EEC Treaty, Art . 169 )

Operative part

( 1 ) Declares that, by failing to forward to the Commission within the prescribed periods the reports needed, in relation to the Region of Brussels-Capital, in order to comply with Article 18 of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986, Article 12 of Council Directive 75/442/EEC of 15 July 1975 on waste, Article 10 of Council Directive 76/403/EEC of 6 April 1976 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls and Article 16 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty;

( 2 ) Orders the Kingdom of Belgium to pay the costs .
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Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Rules on the minimum fat content hindering the importation or at the very least the marketing under the name "cheese" of cheeses originating in other Member States - Not permissible - Justification - Consumer protection - Fair trading - None

( EEC Treaty, Art . 30; Regulation No 804/68 of the Council, Art . 22(1 ) )

Summary

Article 30 of the Treaty and Article 22(1 ) of Regulation No 804/68 preclude a Member State from making the importation and marketing of cheeses originating in other Member States where they are lawfully manufactured and marketed conditional upon compliance with a minimum fat content . They also preclude a Member State from making the use of the name "cheese" for such products subject to compliance with the same condition, when it is lawfully used in the Member State of origin . It would be sufficient for the Member State, in order to ensure consumer protection and fair trading, to prescribe adequate labelling so as to provide correct information on the actual fat content of the various cheeses offered for sale .
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1 . Approximation of laws - Directive harmonizing health protection measures applicable to trade in certain goods - Adoption of national measures - Obligation to observe the limits set by the directive and, in any event, those resulting from Article 36 of the Treaty

( EEC Treaty, Arts 36 and 100 )

2 . Approximation of laws - Protection of plant health - Directive 77/93 - National measure prohibiting imports - Circumstances in which such a measure is permissible

( EEC Treaty, Art . 36; Council Directive 77/93, Art . 4(2)(a ) )

3 . Free movement of goods - Derogations - Circumstances in which derogations are permissible - Reliance on grounds relating to the limitation of public expenditure

( EEC Treaty, Arts 30 and 36 )

Summary

1 . Where, in application of Article 100 of the Treaty, Community directives provide for the harmonization of health protection measures and establish Community procedures to check that they are observed, Member States are entitled to adopt protective measures only within the framework outlined by the harmonizing directive . That type of directive is intended to promote the free movement of goods by eliminating or at least reducing obstacles to free movement which may be created by national health inspection measures adopted pursuant to Article 36 of the Treaty . It follows that the Member States' power to adopt health protection measures under the harmonizing directive may not under any circumstances exceed the limits laid down by Article 36 .

2 . The power granted to the Member States by Article 4(2)(a ) of Directive 77/93 to bar, on grounds of health protection, the introduction into their territory of plants, plant products and other objects listed in Annex III, Part B, to that directive cannot, having regard to Article 36 of the Treaty be construed as authorizing the Member States to adopt measures restrictive of trade which go beyond what is necessary in order to achieve the desired objective of protection .

3 . The Member States may not derogate from Article 30 of the Treaty by introducing or maintaining rules or practices which, even though they are beneficial, contain restrictions which are explained primarily by a concern to lighten the administration' s burden or reduce public expenditure, unless, in the absence of the said rules or practices, this burden of expenditure clearly would exceed the limits of what can reasonably be required .