ddrg/super_eurlex huggingface dataset:
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1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Restrictions – Tax legislation – Income tax

(Arts 43 EC and 49 EC)

2. Community law – Primacy – Contrary national law – Existing rules automatically inapplicable

Summary

1. Articles 43 EC and 49 EC preclude national legislation under which the possibility for a resident taxpayer to obtain, first, a deduction from the basis of assessment in the amount of social security contributions paid in the tax year and, second, a reduction of the income tax which he is liable to pay by the amount of health insurance contributions paid in that period, exists solely when those contributions are paid in the Member State of taxation, while such advantages are refused in the case where those contributions are paid in another Member State, even though those contributions were not deducted in that other Member State.

Such legislation introduces a difference in the treatment of resident taxpayers. Any taxpayer who is resident in the Member State of taxation but pursues his economic activity in another Member State in which he is subject to compulsory social insurance and health insurance cannot deduct the amount of the contributions which he pays from his basis of assessment or to reduce the tax payable in the Member State of taxation by the amount of those contributions, and is therefore less favourably treated than any other taxpayer who is resident in that State but who restricts his economic activity to within the borders of that State and pays his compulsory social security and health insurance contributions to the competent public authority of that State. With regard to the taxation of their income in the Member State of taxation, however, resident taxpayers are not in objectively different situations capable of justifying such a difference in treatment according to the place in which contributions are paid, since they are subject to an unlimited tax liability in that Member State. Thus, the taxation of their income in that Member State should be carried out in accordance with the same principles and, consequently, on the basis of the same tax advantages. In those circumstances, the refusal to grant to the resident taxpayer the tax advantages in question may deter that taxpayer from taking advantage of the freedom of establishment and freedom to provide services under Articles 43 EC and 49 EC, and amounts to a restriction on those freedoms.

(see paras 66-71, 74, operative part 1)

2. To the extent that Community law prevails over provisions of national law, the primacy of Community law obliges the national court to apply Community law and to refuse to apply conflicting provisions of national law, irrespective of the judgment of the national constitutional court which has deferred the date on which those provisions, held to be unconstitutional, are to lose their binding force.

(see para. 85, operative part 2)
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1. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Prohibition – Scope – Application under EAEC Treaty

(Art. 12 EC)

2. Community law – Direct effect – Primacy – Obligation for the national court to interpret national law in a manner consistent with Community law

(Arts 10 EC and 192 EA)

Summary

1. It would appear to be contrary to both the purpose and the consistency of the treaties to allow discrimination on grounds of nationality, which is prohibited under the EC Treaty by virtue of Article 12 EC, to be tolerated within the scope of application of the EAEC Treaty. Although the principle of prohibition of any discrimination on grounds of nationality within the scope of application of Community law is expressly laid down only in Article 12 EC, it is a general principle which is also applicable under the EAEC Treaty.

The principle of prohibition of discrimination on grounds of nationality within the scope of application of the EAEC Treaty precludes the application of the legislation of a Member State under which an undertaking in possession of the necessary official authorisations for operating a nuclear power plant situated in the territory of another Member State, may be the subject of an action for an injunction to prevent an actual or potential nuisance to neighbouring property emanating from that installation, whereas undertakings having an industrial installation situated in the Member State where the action is brought and in possession of an official authorisation may not be the subject of such an action and may only be the subject of a claim for damages for harm caused to a neighbouring property.

(see paras 90-91, 139, operative part 1)

2. The duty imposed on Member States by Article 10 EC and Article 192 EA to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of Community law is incumbent on all the authorities in the Member States, including, for matters within their jurisdiction, the courts.

It is for the national court to give, in so far as possible, to the domestic legislation which it must apply an interpretation which complies with the requirements of Community law. If such an application in accordance with Community law is not possible, the national court is bound to apply Community law in full and protect the rights it confers on individuals, and to disapply, if necessary, any provision in so far as application thereof, in the circumstances of the case, would lead to a result which is contrary to Community law.

(see paras 138, 140, operative part 2)
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Common Customs Tariff – Tariff headings – Food supplements composed of vegetable or animal oil and vitamins, contained in gelatine capsules

(Council Regulation No 2658/87, Annex I; Commission Regulations No 3513/1992, No 2388/2000 and No 438/2007)

Summary

The Combined Nomenclature, set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 2388/2000, must be interpreted as meaning that:

– edible preparations presented in the form of capsules containing 600 mg of cold-pressed concentrated fish oil and 22.8 mg of concentrated vitamin E in a casing consisting of 212.8 mg of gelatin, 77.7 mg of glycerol and 159.6 mg of purified water and intended for use as a food supplement;

– edible preparations presented in the form of capsules containing 580 mg of wheat-germ oil in a casing consisting of 250 mg of granulated starch and intended for use as a food supplement; and

– edible preparations presented in the form of capsules containing 500 mg of cold-pressed black cumin oil, 38.7 mg of soya oil, 18.8 mg of vitamin E, 16 mg of butterfat, 10 mg of lecithin, 8.2 mg of wax, 8 mg of calcium pantothenate, 0.2 mg of folic acid and 0.11 mg of biotin in a casing consisting of 313.97 mg of gelatin mass (47.3% gelatin, 17.2% glycerine, 35.5% water), 4.30 mg of paste consisting of 50% titanium dioxide and 50% glycerine, and 1.73 mg of paste consisting of 25% quinoline yellow lacquer and 75% glycerine and intended for use as a food supplement

come under heading 2106 of the abovementioned Combined Nomenclature.

(see para. 32, operative part)
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Approximation of laws – Procedures for the award of contracts in the public works, public supply and public service sectors – Directive 2004/18 – Procedures for the award of public contracts – Application of a procedure not provided for in Article 28 of the Directive

(European Parliament and Council Directive 2004/18, Arts 2 and 28 to 31)

Summary

A Member State which adopts and keeps in force provisions which lay down a procedure for the award of marchés de definition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the contracting authority to award a marché d’exécution (a public works, supply or service contract) to one of the holders of the initial marchés de définition by opening it to competition limited to those holders fails to fulfil its obligations under Articles 2 and 28 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

Under Article 28, contracting authorities are required to award their public contracts by applying either the open or restricted procedure, or, in the specific circumstances expressly provided for in Article 29 of Directive 2004/18, the competitive dialogue or, in the further alternative, in the specific circumstances referred to expressly in Articles 30 and 31 thereof, a negotiated procedure. The award of public contracts by means of other procedures is not permitted by that directive.

Moreover, that procedure for the award of marchés de définition is not consistent with Article 2 of Directive 2004/18. The purpose of that procedure is to award two types of contracts, namely marchés de définition and marchés d’exécution , the latter being awarded after being opened to competition limited to the holders of the former alone. Accordingly, economic operators who might be interested in participating in marchés d’exécution , but who are not holders of one of the marchés de définition , are discriminated against in comparison with those holders, contrary to the principle of equality, which is laid down as a principle for the award of contracts in Article 2 of Directive 2004/18.

Moreover, both the principle of equal treatment and the obligation of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined. In this respect, marchés de définition and marchés d’exécution appear by their nature to have different subject‑matters, namely, first, a study and design project in which the needs of the contracting authority are defined and, second, the actual provision of supplies, services or works defined in advance. In that procedure for the award of marchés de definition , there is no guarantee that, in all cases, the subject‑matter and award criteria of both marchés de définition and the marché d’exécution can be defined from the beginning of the procedure.

(see paras 29, 40-41, 43-45, operative part)
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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive – Exemption for tuition given privately by teachers and covering school or university education

(Council Directive 77/388, Art. 13A(1)(j))

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive – Exemption for tuition given privately by teachers and covering school or university education

(Council Directive 77/388, Art. 13A(1)(j))

Summary

1. Article 13A(1)(j) of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that teaching work which a graduate engineer performs at an education institute established as a private-law association for participants in advanced training courses – culminating in an examination – who already have at least a university or higher technical college qualification as an architect or an engineer or who have an equivalent education can constitute ‘tuition … covering school or university education’ within the meaning of that provision. Activities other than teaching in the strict sense can also constitute such tuition, provided that they are carried out, essentially, in the context of the transfer of knowledge and skills between a teacher and pupils or students and cover school or university education. It is for the referring court, if need be, to ascertain whether all the education activities concerned are ‘tuition’ covering ‘school or university education’ within the meaning of that provision.

(see para. 38, operative part 1)

2. Article 13A(1)(j) of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that an independent person who is a partner in a civil law partnership, who performs teaching work for continuing professional training courses offered by another body, cannot be regarded as having given tuition ‘privately’ within the meaning of that provision, since, it is that body – and not the teacher concerned – which provided training to the participants of the courses. That last fact, in itself, rules out the possibility that the teacher – and thus the civil partnership of which he is a partner – could be regarded as giving tuition ‘privately’ within the meaning of Article 13A(1)(j) of the Sixth Directive.

In that regard, the mere fact of carrying out an economic activity ‘independently’ and in compliance with the other criteria set out in Article 4 of the Sixth Directive in order to be considered a taxable person for VAT purposes cannot, without more, lead to the conclusion that a teacher who is not bound by a contract of employment, or legal tie creating an analogous relationship of employer and employee, carries out his economic activities ‘privately’ within the meaning of Article 13A(1)(j) of that directive.

(see paras 48, 52-53, 55, operative part 2)
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1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Sites of Community importance

(Council Directive 92/43, as amended by Directive 2006/105, Arts 2(3), 3(1) and 4(2), first para.)

2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Sites of Community importance

(Council Directive 92/43, as amended by Directive 2006/105, Art. 6(3) and (4))

Summary

1. The first subparagraph of Article 4(2) of Council Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2006/105, must be interpreted as not allowing a Member State to refuse to agree on grounds other than environmental protection to the inclusion of one or more sites in the draft list of sites of Community importance drawn up by the European Commission.

If, in the phase of the classification procedure that is governed by the first subparagraph of Article 4(2) of the Directive 92/43, the Member States were permitted to refuse to give their agreement on grounds other than environmental protection, the achievement of the objective referred to in Article 3(1) of that directive, namely, the setting up of the Natura 2000 network, would be put in danger. That would, in particular, be the case were the Member States able to refuse to give their agreement on the basis of economic, social and cultural grounds and regional and local characteristics as referred to in Article 2(3) of that directive, which, moreover, does not constitute an autonomous derogation from the general system of protection put in place by that directive.

(see paras 31-33, operative part 1)

2. Article 6(3) and (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2006/105, must be interpreted as meaning that ongoing maintenance works in respect of the navigable channels of estuaries, which are not connected with or necessary to the management of the site and which were already authorised under national law before the expiry of the period for transposing that directive, must, to the extent that they constitute a project and are likely to have a significant effect on the site concerned, undergo an assessment of their implications for that site pursuant to those provisions where they are continued after inclusion of the site in the list of sites of Community importance pursuant to the third subparagraph of Article 4(2) of that directive.

If, having regard in particular to the regularity or nature of those works or the conditions under which they are carried out, they can be regarded as constituting a single operation, in particular where they are designed to maintain the navigable channel at a certain depth by means of regular dredging necessary for that purpose, the maintenance works can be considered to be one and the same project for the purposes of Article 6(3) of Directive 92/43.

(see paras 50-51, operative part 2)
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Tax provisions – Harmonisation of laws – Taxes other than turnover taxes which affect the consumption of manufactured tobacco

(Council Directive 95/59, as amended by Directive 2002/10, Art. 9(1))

Summary

A Member State fails to fulfil its obligations under Article 9(1) of Directive 95/59 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, as amended by Directive 2002/10, where it adopts and maintains in force a system of minimum prices for the retail sale of cigarettes released for consumption in that Member State and a prohibition on selling tobacco products ‘at a promotional price which is contrary to public health objectives’, and where that system does not make it possible to ensure, in any event, that the minimum price imposed does not impair the competitive advantage which could result for some producers and importers of tobacco products from lower cost prices. Such a system, which furthermore fixes the minimum price by reference to the average price on the market, is likely to eliminate price differences between competing products and to cause prices to converge around the price of the most expensive product. That system therefore undermines the freedom of producers and importers to determine their maximum retail selling price, guaranteed by the second paragraph of Article 9(1) of Directive 95/59.

Moreover, such a system of minimum prices is not covered by the derogation in the third paragraph of Article 9(1) of that directive, since the legislation in question is intended neither to check inflation nor to avoid the loss of tax revenue caused by the exceeding of the maximum retail selling price freely fixed by producers or importers.

In addition, the World Health Organisation Framework Convention on Tobacco Control cannot affect the compatibility or otherwise of such a system with Article 9(1) of Directive 95/59 since that convention imposes no actual obligation on the Contracting Parties with regard to price policies for tobacco products, and merely describes possible approaches by which to take account of national health objectives concerning tobacco control. Article 6(2) of the convention provides only that the Contracting Parties are to adopt or maintain measures which ‘may include’ implementing tax policies and, ‘where appropriate’, price policies, concerning tobacco products.

Member States may not rely on Article 30 EC in order to justify an infringement of Article 9(1) of Directive 95/59 with reference to the objective of protection of health and life of humans. Article 30 EC cannot be understood as authorising measures other than the quantitative restrictions on imports and exports and the measures having equivalent effect envisaged by Articles 28 EC and 29 EC.

The fact remains that Directive 95/59 does not prevent Member States from taking measures to combat smoking, which forms part of the objective of protecting public health.

(see paras 41-42, 44-45, 49-50, 55, operative part)
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Agriculture – Common agricultural policy – Integrated administration and control system for certain aid schemes – Single payment scheme – Transfer of payment entitlements

(Council Regulation No 1782/2003, Art. 46(2))

Summary

Regulation No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers must be interpreted as not precluding a contractual arrangement the object of which is to effect a definitive transfer of payment entitlements whereby the transferee, in his capacity as the person entitled to them, is obliged to activate the payment entitlements and to pass on to the transferor, without any limit in time, the full amount, or a part thereof, of the payments received on that basis, provided that the purpose of such an arrangement is not to permit the transferor to retain a part of the payment entitlements which he has formally transferred, but to determine, by reference to the value of that part of the payment entitlements, the agreed price for the transfer of all the payment entitlements.

(see para. 50, operative part)
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Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Obligation for Member States to provide a review procedure – Access to review procedures

(Council Directive 89/665, Art. 2, para. 8)

Summary

Article 2(8) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50, must be interpreted as not requiring the Member States to provide, for contracting authorities too, a right to seek judicial review of the decisions of non-judicial bodies responsible for review procedures concerning the award of public contracts.

Firstly, in the fourth and seventh recitals in the preamble to that directive, ‘Community undertakings’ are explicitly referred to as parties for the purposes of seeking a review of the procedures for the award of public contracts. Secondly, Article 1(3) of that directive, which states that review procedures are available ‘at least to any person having or having had an interest in obtaining a public contract’, defines the class of persons which must be allowed a right of review on the basis of that directive. Thirdly, as is apparent from the seventh recital in the preamble to that directive, the European Union legislature was aware of the possibility that certain infringements may not be corrected when undertakings do not seek review of unlawful or erroneous decisions, it being understood that such decisions could also be adopted by bodies responsible for review procedures of a non-judicial nature. However, in order to remedy such a situation, Article 3 of the directive provides for the Commission to have a general power to intervene in accordance with the procedure established in that provision.

In the light, moreover, of the procedural independence enjoyed by the Member States, it should be held that the latter are not prevented from including contracting authorities within the class of persons to whom the review procedures within the meaning of the abovementioned provision are available, in cases in which contracting authorities’ decisions are annulled by non-judicial bodies.

(see paras 24-26, 36, 38, operative part)
1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes and Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378, the Czech Republic has failed to fulfil its obligations under those directives and Article 54 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded;