ddrg/super_eurlex huggingface dataset:
Judgment of the Court (Sixth Chamber) of 4 October 2012 —

Commission v Belgium



(Case C-391/11)

Failure of a Member State to fulfil obligations – Directive 2000/53/EC – Article 2(3) – Protection of the environment – End-of-life vehicles – Notion of producer

1. Actions for failure to fulfil obligations – Application initiating proceedings – Statement of subject-matter and pleas in law – Formal requirements – National provisions at issue identified in the resonated opinion but not in the application – Whether admissible (Art. 258 TFEU; Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the Court of Justice, Art. 38(1)(c)) (see paras 23, 24, 26, 27)

2. Acts of the institutions – Directives – Implementation by Member States –Use of measures within the competence of regional or local authorities – Whether lawful – Limits – Adoption of a regional definition of a notion laid down in a directive – Attainment of the objectives of the directive not impeded – Lawfulness (Art. 288, third para., TFEU; European Parliament and Council Directive 2000/53, Art. 2, para. 3) (see paras 31, 32, 34, 41)

Re:

Failure of a Member State to fulfil obligations – Failure by a Member State to adopt, within the period prescribed, the measures necessary to comply with the provisions of Article 2(1) and (3) and Article 5(1), (2) and (4) of Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles (OJ 2000 L 269, p. 34) – Notions of ‘vehicle’ and ‘producer’ – Free-of-charge delivery of end-of-life vehicles subject to conditions not provided for by the directive.

Operative part

The Court:

1. Dismisses the action;
16

Article 19 of Regulation No 343/2003, which provides for time-limits for carrying out the transfer of the asylum seeker, states as follows: ‘1. Where the requested Member State accepts that it should take charge of an applicant, the Member State in which the application for asylum was lodged shall notify the applicant of the decision not to examine the application, and of the obligation to transfer the applicant to the responsible Member State. 2. The decision referred to in paragraph 1 shall set out the grounds on which it is based. It shall contain details of the time-limit for carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer unless the courts or competent bodies so decide on a case by case basis if national legislation allows for this. 3. The transfer of the applicant from the Member State in which the application for asylum was lodged to the Member State responsible shall be carried out in accordance with the national law of the first Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken or of the decision on an appeal or review where there is a suspensive effect. … 4. Where the transfer does not take place within the six months’ time-limit, responsibility shall lie with the Member State in which the application for asylum was lodged. This time-limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the asylum seeker or up to a maximum of eighteen months if the asylum seeker absconds. …’
23

The Court of Appeal (England and Wales) (Civil Division) is of the opinion that a correct interpretation of paragraph 31 of Annex I to the Unfair Commercial Practices Directive is necessary because the Member States have transposed that provision differently in their legislation. The Court of Appeal (England and Wales) (Civil Division) therefore decided to stay the proceedings and to submit the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the banned practice set out in paragraph 31 of Annex I to the [Unfair Commercial Practices] Directive prohibit traders from informing consumers that they have won a prize or equivalent benefit, when in fact the consumer is invited to incur any cost, including a de minimis cost, in relation to claiming the prize or equivalent benefit? (2) If the trader offers the consumer a variety of possible methods of claiming the prize or equivalent benefit, is paragraph 31 of Annex I [to the Unfair Commercial Practices] Directive breached if taking any action in relation to any of the methods of claiming [the prize or equivalent benefit] is subject to the consumer incurring a cost, including a de minimis cost? (3) If paragraph 31 of Annex I [to the Unfair Commercial Practicies Directive] is not breached where the method of claiming [the prize or equivalent benefit] involves the consumer in incurring de minimis costs only, how is the national court to judge whether such costs are de minimis? In particular, must such costs be wholly necessary: (a) in order for the promoter to identify the consumer as the winner of the prize, and/or (b) for the consumer to take possession of the prize, and/or (c) for the consumer to enjoy the experience described as the prize? (4) Does the use of the words “false impression” in paragraph 31 [of Annex I to the Unfair Commercial Practices Directive] impose some requirement additional to the requirement that the consumer pays money or incurs a cost in relation to claiming the prize, in order for the national court to find that the provisions of paragraph 31 have been contravened? (5) If so, how is the national court to determine whether such a “false impression” has been created? In particular, is the national court required to consider the relative value of the prize as compared with the cost of claiming it in deciding whether a “false impression” has been created? If so, should that “relative value” be assessed by reference to: (a) the unit cost to the promoter in acquiring the prize; or; (b) the unit cost to the promoter in providing the prize to the consumer; or (c) the value that the consumer may attribute to the prize by reference to an assessment of the “market value” of an equivalent item for purchase?’
4

The Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007 and approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008 (OJ 2009 L 147, p. 1) (‘the Lugano Convention’), states in Article 23(1), the wording of which is largely similar to that of Article 17 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Lugano on 16 September 1988 (OJ 1988 L 319, p. 9), which it replaced: ‘If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing, or (b) in a form which accords with practices which the parties have established between themselves, or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’
11

Article 66 of the Decree of the President of the Republic No 382 of 11 July 1980 on the reorganisation of University education, concerning training and organisational and teaching methodology reforms (riordinamento della docenza universitaria, relativa fascia di formazione nonché sperimentazione organizzativa e didattica, standard supplement to GURI No 209 of 31 July 1980), provides: ‘Provided that the performance of their academic function of dissemination of knowledge is not thereby impaired, universities may carry out research and consultancy activities under contracts and agreements with public and private entities. The carrying out of those contracts and agreements shall, as a rule, be entrusted to [university] departments or, where such departments are not in place, to institutes or university clinics, or to individual full-time teachers. The proceeds from the performance of the contracts and agreements referred to in the preceding paragraph shall be allocated in accordance with rules approved by the university’s governing council on the basis of rules … laid down by the Ministry of Education. The teaching and non-teaching staff cooperating in the provision of those services may be rewarded up to an annual sum not exceeding 30% of total remuneration. In each case, the sum so paid to staff may not exceed 50% of the overall proceeds from those services. The rules referred to in the second paragraph shall determine the amount to be allocated for general expenditure incurred by the university and the criteria for the allocation to the staff of the sum referred to in the third paragraph. The remainder of the revenue shall be allocated to the purchase of teaching and research materials and to operating costs of departments, institutes or clinics which have carried out such contracts or agreements. The expenditure incurred by the university in carrying out those services shall in any case be deducted beforehand from the proceeds of each service as allocated in accordance with the rules set out in the second paragraph. The proceeds derived from the activities referred to in the preceding paragraph shall constitute revenue in the budget of the university.’
43

First, it should be borne in mind in that connection that, as is stated in recital 4 to Decision 2004/290, that decision authorised the Federal Republic of Germany to provide for a derogating measure which did not affect the amount of VAT due at the final consumption stage and had no impact on the European Union’s own resources accruing from VAT. In the case of the measures actually adopted on that basis, their application was limited to cases where the recipient in the transactions at issue was himself a taxable person for the purposes of the Sixth VAT Directive in the construction sector, who is accordingly entitled to deduct the tax paid upstream of the VAT due or to claim, where applicable, a refund of that VAT. Consequently, aside from the fact that those measures had no impact on the VAT due at the final consumption stage, they did not have the effect of creating a financial burden for the persons directly concerned by them. It does not appear, therefore, that the German legislation at issue has given rise to a breach of the principle of fiscal neutrality inherent in the common system of VAT.
8

Article 6 of Regulation No 111/1999 reads as follows: ‘1. The intervention agency or agencies concerned shall send the Commission by fax or written telecommunication, within 24 hours of the end of the period for the submission of tenders, a communication, quoting the Regulation opening the invitation to tender, for each lot comprising: (a) the names and addresses of the tenderers who have submitted admissible tenders pursuant in particular to Articles 3, 4 and 5; (b) and for each admissible tender, the amount or quantity tendered, as appropriate. The intervention agency or agencies concerned shall, within the time-limit specified in the previous subparagraph, forward to the Commission, for each lot, a complete copy of the two most favourable tenders received, accompanied by a copy of the security and of the financial undertaking mentioned in Article 5(1)(h) and (i) and the specimen signatures of the persons authorised to issue those documents. 2. On the basis of the tenders submitted, it may be decided, with regard to each lot: — not to award any contract for supply, or — to award the supply contract as appropriate on the basis of the price or quantity offered. 3. The Commission shall inform the successful tenderer of the award of the contract as soon as possible and shall send a copy of that decision to the intervention agency or agencies which received the tenders. 4. The intervention agencies that received tenders shall inform tenderers as soon as possible, by fax or electronic mail if necessary, of the outcome of their participation in the tender.’
37

The General Court rejected the appellants’ arguments that the time-limit of two months for bringing proceedings could apply to them on the grounds that the contested measures had not been notified to them. On that subject the General Court stated the following: ‘Given the fact that time-limits for bringing proceedings are intended to ensure legal certainty by preventing European Union measures which produce legal effects from being called into question indefinitely, the date of publication, if there is one, is the decisive criterion for determining the starting point of the period prescribed for initiating proceedings (orders of 25 November 2008 in Case C-500/07 TEA v Commission, ..., paragraph 23, and in Case C-501/07 P S.A.BA.R. v Commission, ... paragraph 22; order of 9 July 2009 in Case C-498/08 P Fornaci Laterizi Danesi v Commission, ... paragraph 22; judgment of 11 November 2010 in Case C-36/09 P Transportes Evaristo Molina v Commission, ..., paragraph 37). An applicant cannot plead that he became aware of the contested measure after the date of its publication in order to defer that starting point (orders in TEA v Commission, paragraph 23; S.A.BA.R. v Commission, paragraph 22, and Fornaci Laterizi Danesi v Commission, paragraph 22). It follows that, since the [contested] measures were published, the time-limit for bringing proceedings must be calculated from the date of their publication (see, as regards the calculation of the time-limit for bringing an action against a decision imposing restrictive measures from the publication of that decision, the order of 18 November 2005 in Case T-299/04 Selmani v Council and Commission, ..., paragraph 61), even if the measures have not been notified [to the appellants]. In that regard, it must also be observed that the Council published ... notices for the attention of persons to whom the restrictive measures provided for in [the contested measures] apply, in which notices the Council, in particular, drew the attention of the persons concerned to the possibility of challenging its decision before the General Court, in accordance with the conditions laid down in the second paragraph of Article 275 TFEU and the fourth and sixth paragraphs of Article 263 TFEU.’
6

Article 7 of Directive 2004/38, headed ‘Right of residence for more than three months’, is worded as follows: ‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or, (c) — are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and — have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). 3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident; (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office; (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment. 4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.’
3

Pursuant to Article 59 of that regulation, entitled ‘Identification of substances referred to in Article 57’: ‘1. The procedure set out in paragraphs 2 to 10 of this Article shall apply for the purpose of identifying substances meeting the criteria referred to in Article 57 and establishing a candidate list for eventual inclusion in Annex XIV (‘candidate list of substances’). ... … 3. Any Member State may prepare a dossier in accordance with Annex XV for substances which in its opinion meet the criteria set out in Article 57 and forward it to [ECHA].… [ECHA] shall make this dossier available within 30 days of receipt to the other Member States. 4. [ECHA] shall publish on its website a notice that an Annex XV dossier has been prepared for a substance. [ECHA] shall invite all interested parties to submit comments within a specified deadline to [ECHA]. 5. Within 60 days of circulation, the other Member States or [ECHA] may comment on the identification of the substance in relation to the criteria in Article 57 in the dossier to [ECHA]. 6. If [ECHA] does not receive or make any comments, it shall include this substance on the list referred to in paragraph 1. … 7. When comments are made or received, [ECHA] shall refer the dossier to the Member State Committee within 15 days of the end of the 60-day period referred to in paragraph 5. 8. If, within 30 days of the referral, the Member State Committee reaches a unanimous agreement on the identification, [ECHA] shall include the substance in the list referred to in paragraph 1. … … 10. [ECHA] shall publish and update the list referred to in paragraph 1 on its website without delay after a decision on inclusion of a substance has been taken.’
Keywords

Summary



Keywords

1. Freedom of movement for persons — Workers — Concept — Existence of an employment relationship — Effective and genuine activity — Overall assessment of the employment relationship in question

(Art. 45 TFEU)

2. Citizenship of the Union — Right of free movement and residence in the territory of the Member States — Directive 2004/38 — Principle of equal treatment — Derogation — No obligation on the host Member State to grant maintenance aid for studies — Limits — Situation of a student pursuing at the same time genuine and effective employment in the host Member State

(Art. 45 TFEU; Council Regulation No 1612/68, Art. 7(2); European Parliament and Council Directive 2004/38, Arts 7(1)(c) and 24(2))

Summary

1. See the text of the decision.

(see paras 39-43)

2. Articles 7(1)(c) and 24(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that a European Union citizen who pursues a course of studies in a host Member State whilst at the same time pursuing effective and genuine employment activities such as to confer on him the status of ‘worker’ within the meaning of Article 45 TFEU may not be refused maintenance aid for studies which is granted to the nationals of that Member State.

It is for the national court to make the necessary findings of fact in order to ascertain whether the employment activities of the person concerned are sufficient to confer that status on him.

The fact that the person entered the territory of the host Member State with the principal intention of pursuing a course of study is not relevant for determining whether he is a ‘worker’ within the meaning of Article 45 TFEU and, accordingly, whether he is entitled to that aid under the same terms as a national of the host Member State under Article 7(2) of Regulation No 1612/68 on freedom of movement for workers within the Community.

(see para. 51, operative part)
Questions referred for a preliminary ruling — Urgent preliminary ruling procedure — Conditions — Person sentenced to a term of imprisonment and remanded in custody, the continuation of remand dependent on the Court’s answer

(Rules of Procedure of the Court of Justice, Art. 104b)
Articles 2(1) and 4(2)(b) and (3) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11, preclude national legislation which makes projects which change the infrastructure of an airport and fall within the scope of Annex II to that directive subject to an environmental impact assessment only if those projects are likely to increase the number of aircraft movements by at least 20000 per year.

A Member State which establishes criteria and/or thresholds at a level such that, in practice, all projects (relating to a particular class) would be exempted in advance from the requirement of an impact assessment exceeds the limits of its discretion under Articles 2(1) and 4(2) of Directive 85/337, unless all projects excluded could, when viewed on the basis of a global assessment, be regarded as not being likely to have significant effects on the environment.

By establishing such a threshold, the national legislation concerned takes into consideration only the quantitative aspect of the consequences of a project, without taking account of the other selection criteria in Annex III to that directive, particularly that laid down in point 2(g) of that annex, namely the population density of the area affected by the project.

(see paras 27-35, 38, operative part 1)