ddrg/super_eurlex huggingface dataset:
Case C-472/00 P





Commission of the European Communities

v

Fresh Marine Company A/S





«(Appeal – Non-contractual liability of the Community – Provisional anti-dumping and countervailing duties imposed on imports of farmed Atlantic salmon originating in Norway)»

Opinion of Advocate General Stix-Hackl delivered on 28 November 2002 I - 0000

Judgment of the Court, 10 July 2003 I - 0000

Summary of the Judgment

1.. Non-contractual liability – Conditions – Sufficiently serious breach of Community law – Discretion available to an institution when adopting measures

(EC Treaty, Art. 215, second para. (now Art. 288, second para., EC))

2.. Non-contractual liability – Sufficiently serious breach of Community law – Imposition of provisional anti-dumping and countervailing duties on the exports of a company which has entered into undertakings with respect to the minimum price of exports – Imposition despite the existence of a report of the company concerned indicating that the undertakings entered into have been complied with but which has been unilaterally amended by the Commission without prior consultation of that company – Community liability incurred

(EC Treaty, Art. 215, second para. (now Art. 288, second para., EC))

3.. Appeals – Grounds of appeal – Incorrect assessment of the facts – Inadmissible – Review by the Court of Justice of assessment of evidence – Excluded unless the clear sense of the evidence has been distorted

(Art. 225 EC; Rules of Procedure of the Court of Justice, Art. 58)

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2.

3.
Case C-24/00





Commission of the European Communities

v

French Republic





«(Failure of a Member State to fulfil obligations – Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) – National legislation exhaustively listing the nutrients which may be added to foodstuffs – Measures having equivalent effect – Justification – Public health – Consumer protection – Proportionality)»

Opinion of Advocate General Mischo delivered on 26 June 2001

Judgment of the Court (Sixth Chamber), 5 February 2004

Summary of the Judgment

1.. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation making the addition of nutrients to foodstuffs subject to authorisation – Not permissible in the absence of a simplified procedure

(EC Treaty, Art. 30 (now, after amendment, Art. 28 EC))

2.. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation hindering the marketing of foodstuffs enriched with nutrients – Not permissible – Justification – Protection of public health – Not justified without establishing a real risk

(EC Treaty, Arts 30 and 36 (now, after amendment, Arts 28 EC and 30 EC))

1.

2.
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Actions for failure to fulfil obligations - Examination of merits by the Court - Situation to be taken into consideration - Situation at the end of the period laid down in the reasoned opinion

(Art. 141 EA)
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Community law — Principles — Equal treatment — Discrimination on grounds of nationality — Admission to museums, monuments, galleries, archaeological digs, parks and gardens classified as public monuments — Advantageous rates granted by local or decentralised State authorities only in favour of nationals and persons resident within the territory of those authorities who are aged over 60 or 65 years — Not permissible — Whether justifiable — No justification — (Arts 12 and 49 EC)

Summary

By allowing advantageous rates for admission to museums, monuments, galleries, archaeological digs, parks and gardens classified as public monuments, granted by local or decentralised State authorities only in favour of nationals and persons resident within the territory of those authorities running the cultural sites in question who are aged over 60 or 65 years, and by excluding from such advantages tourists who are nationals of other Member States and non-residents who fulfil the same objective age requirements, a Member States fails to fulfil its obligations under Articles 12 EC and 49 EC.

Such rules are prohibited by the above provisions and cannot be justified either by economic considerations relating to the costs involved in running cultural sites or on grounds of cohesion of the tax system, since there is no direct link between any taxation and the application of preferential rates for admission to the sites concerned.

see paras 12, 19-25, 28, operative part
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Approximation of laws — Labelling and presentation of foodstuffs — Directive 2000/13 — Non-harmonised national rule laying down an obligation to indicate in a clear and generally intelligible manner the fact that the period of minimum durability has expired — Rule justified on grounds of prevention of fraud on consumers — (Directive of the European Parliament and the Council 2000/13, Art. 18(2))

Summary

Directive 2000/13 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs does not preclude a national rule which provides that, where the period of minimum durability of a foodstuff has expired, that fact must be indicated separately, clearly and in a generally intelligible manner. Such a labelling rule is a non-harmonised national provision justified on the ground of prevention of fraud on consumers as provided for in Article 18(2) of the directive. The aim of such a rule is to inform the consumer of the characteristics of a foodstuff and, in particular, of the fact that because the period of minimum durability has expired, the product has lost its initial freshness. That information is capable of preventing fraud on the consumer, who can, as a result, be sure that the product offered for sale retains all its original characteristics if the date of minimum durability has not passed. Such measures, which do not necessarily require an additional label to be affixed to every item offered for sale after the period of minimum durability has expired, do not go beyond what is necessary to prevent fraud.

see paras 33, 35, 38, operative part
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1. Freedom to provide services — Treaty provisions — Scope — Temporary nature of the activities provided — Criteria — Patent agents — (Art. 50 EC, third para.)

2. Freedom to provide services — Restrictions — Patent agents — Obligation to register in the professional register — Obligation to have a residence or a place of business — Not permissible — (Arts 49 EC to 55 EC)

Summary

1. The "temporary" nature of the carrying-on of an activity providing services in the host Member State, within the meaning of the third paragraph of Article 50 EC, must be determined in the light, not only of the duration of the provision of the service, but also of its regularity, periodical nature or continuity, and the concept of "establishment" within the meaning of the Treaty allows a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin.

The decisive criterion for the purposes of the application of the chapter of the Treaty concerning services to an economic activity is therefore the absence of stable and continuous participation by the person concerned in the economic life of the host Member State.

In that regard, the activity of patent agents is capable of coming within the field of application of the Treaty chapter concerning the freedom to provide services.

see paras 22-23, 25

2. A Member State which retains rules requiring patent agents established in other Member States to be enrolled on the national register of patent agents and to have a residence or place of business in its territory, in order to provide services before the national Patent Office, that Member State has failed to fulfil its obligations under Articles 49 EC to 55 EC.

see para. 48, operative part
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Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Member States' option to apply a reduced rate to certain supplies of goods and services — Supply of natural gas and electricity — Selective application of the reduced rate to a particular aspect of the supply — Whether permissible — (Council Directive 77/388, Art. 12(3)(b))

Summary

There is nothing in the text of Article 12(3)(b) of the Sixth Directive 77/388, as amended by Directive 96/95, which permits the charging of a reduced rate of value added tax on supplies of natural gas and electricity, which requires that provision to be interpreted as requiring that the reduced rate can only be charged if it is applied to all supplies of natural gas and electricity. A selective application of the reduced rate to concrete and specific aspects, such as the standing charge conferring entitlement to a minimum quantity of electricity for account holders, cannot be excluded, provided that no risk of distortion of competition exists.

see paras 24, 26-28
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1. Procedure — Decision replacing, in the course of the proceedings, the contested decision — Replacement of a decision refusing the reinstallation allowance by a decision granting it but operating a set-off against allowances wrongly received by the applicant — Different subject-matter — Extension of the initial claims for relief and pleadings — Not permitted

2. Appeals — Pleas in law — Plea put forward for the first time in the appeal — Inadmissible — (Rules of Procedure of the Court of Justice, Art. 42(1), first subpara.)

Summary

1. An applicant may amend his heads of claim and pleas in law following the replacement by a decision, in the course of the proceedings, of a previous decision with the same subject-matter.

That is not the case if the contested decision is one refusing the reinstallation allowance and if, in the course of the proceedings, it is replaced by a decision granting it to the applicant but also requiring him to repay sums wrongly paid to him in respect of the installation allowance. The decision replacing the contested decision does not have the same subject-matter since it establishes a set-off between the amount overpaid to the applicant and that of the sums due to him. It follows therefrom that in such a case the applicant should not be given leave to amend his claims and pleas.

see paras 29-30

2. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the former, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas argued before the Court of First Instance.

see para. 37
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1. Freedom to provide services — Restrictions — Tax legislation — Income taxes — Exclusion of non-residents from the right to deduct business expenses — Not permissible — (EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. 50 EC))

2. Freedom to provide services — Restrictions — Tax legislation — Income taxes — Rate of taxation fixed in relation to the income of non-residents and progressive in relation to the income of residents — Whether permissible — Conditions — (EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. 50 EC))

Summary

1. Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) preclude a national provision which, as a general rule, takes into account gross income when taxing non-residents, without deducting business expenses, whereas residents are taxed on their net income, after deduction of those expenses.

see para. 55, operative part

2. Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude a national provision which, as a general rule, subjects the income of non-residents to a definitive tax at the uniform rate of 25%, deducted at source, whilst the income of residents is taxed according to a progressive table including a tax-free allowance, provided that the rate of 25% is not higher than that which would actually be applied to the person concerned, in accordance with the progressive table, in respect of net income increased by an amount corresponding to the tax-free allowance.

see para. 55, operative part
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Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Prohibition on marketing of energy drinks containing caffeine in excess of a certain limit — Whether justified — Protection of public health — Justification not demonstrated — (Arts 28 EC and 30 EC)

Summary

A Member State fails to fulfil its obligations under Articles 28 EC and 30 EC if it applies to drinks produced and marketed in other Member States a rule prohibiting the marketing within its territory of energy drinks containing caffeine in excess of a certain limit, without showing that that limit is necessary and proportionate for the protection of public health.

see para. 36, operative part
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1. Free movement of capital — Restrictions on the acquisition of agricultural and forestry plots placed on nationals of Member States of the European Economic Area — Assessment in the light of the Agreement on the European Economic Area — Legal scope identical to that of Community provisions — (EC Treaty, Art. 73b (now Art. 56 EC); EEA Agreement, Art. 40 and Annex XII)

2. Free movement of capital — Restrictions on the acquisition of immovable property — System of prior authorisation for the acquisition of farmland — Whether permissible — Limits — Conditions as to residence and involvement in farming not permissible — (Arts 73b, 73c, 73d, 73f, and 73g of the EC Treaty (now Arts 56 EC, 57 EC, 58 EC, 59 EC and 60 EC))

Summary

1. National rules making transactions relating to agricultural and forestry plots subject to administrative restrictions must, in the case of a transaction between nationals of States party to the Agreement on the European Economic Area (EEA), be assessed in the light of Article 40 of and Annex XII to that Agreement, which are provisions with the same legal scope as Article 73b of the Treaty (now Article 56 EC), which is identical in substance.

It is apparent from those provisions that the rules laid down in them prohibiting restrictions on the movement of capital and discrimination, so far as concerns relations between the States party to the EEA Agreement, irrespective of whether they are members of the Community or members of EFTA, are identical to those under Community law with regard to relations between the Member States. National measures governing the acquisition of agricultural and forestry plots are therefore no more exempt from the abovementioned rules than under Community law.

see paras 28, 32, operative part 1

2. Article 73b of the Treaty (now Article 56 EC) in conjunction with Articles 73c, 73d, 73f and 73g of the Treaty (now Articles 57 EC to 60 EC) do not preclude the acquisition of agricultural land being made subject to the grant of prior authorisation. However, they do preclude such authorisation being refused in every case in which the acquirer does not himself farm the land concerned as part of a holding and on which he is not resident.

see para. 54, operative part 2
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1. Freedom to provide services — Treaty provisions — Scope — Activity of operating games of chance or gambling machines — Whether included — Monopoly in the operation of those games — Article 31 EC not applicable — ( Arts 2 EC, 28 EC, 29 EC, 31 EC and 49 EC)

2. Freedom to provide services — Restrictions — National legislation restricting the right to operate games of chance or gambling to casinos — Justification — Maintenance of order in society and prevention of fraud — Existence of less stringent conditions in other Member States — Not relevant — Methods of organisation and control — Discretion of national authorities — ( Art. 49 EC)

Summary

1. Games of chance and gambling constitute economic activities within the meaning of Article 2 EC. In particular, the activity of operating gaming machines must, irrespective of whether or not it is separable from activities relating to the manufacture, importation and distribution of such machines, be considered a service within the meaning of the Treaty and, accordingly, it cannot come within the scope of Articles 28 EC and 29 EC relating to the free movement of goods. Furthermore, since they constitute services, a monopoly in the operation of such games does not fall within the scope of Article 31 EC, which refers to trade in goods.

see paras 48, 56, 59-61, operative parts 1-3

2. National legislation which authorises the operation and playing of games of chance or gambling solely in certain places such as casinos and is applicable without distinction to its own nationals and nationals of other Member States constitutes a barrier to the freedom to provide services. However, Articles 49 EC et seq. do not preclude such national legislation, provided that it is based on concerns of social policy and the prevention of fraud.

Furthermore, the fact that there might exist, in other Member States, legislation laying down conditions for the operation and playing of games of chance or gambling which are less restrictive than those provided for by the legislation in question has no bearing on the compatibility of the latter with Community law. It is for national authorities to consider whether, in the context of the aim pursued, it is necessary to prohibit activities of that kind, totally or partially, or only to restrict them and to lay down more or less rigorous procedures for controlling them.

It is also solely for the national authorities to choose, in the context of the discretion which they enjoy, the methods for organising and controlling the operation and playing of games of chance or gambling, such as the conclusion with the State of an administrative licensing contract or the restriction of the operation and playing of certain games to places duly licensed for that purpose.

see paras 75, 79, 81, 87-88, operative parts 4-6
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Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National legislation making the marketing of marine equipment subject to the issue of a certificate of conformity — Not permissible — (Art. 28 EC)

Summary

A Member State which keeps in force legislation under which products in respect of which there has not yet been full harmonisation, intended for use on merchant vessels flying the flag of that Member State, may be marketed only if a certificate of conformity has been issued by a national body ─ so that in some cases the right to market the products is enjoyed only by the grantee of the certificate ─ and which does not recognise the validity of tests carried out in accordance with international standards by bodies recognised in the other Member States, even where the relevant information is made available to the competent authority and it is clear from the certificates that the equipment guarantees a degree of safety equivalent to that required for national products, has failed to fulfil its obligations under Article 28 EC.

see para. 27, operative part
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Agriculture — Common organisation of the markets — Milk and milk products — Additional levy on milk — Delivery by a producer to a purchaser — Purchaser ' s failure to fulfil his obligation to collect the levy from the producer — Direct recovery from the producer — Whether permissible — Conditions — (Art. 10 EC; Council Regulation No 3950/92, Arts 1 and 2; Commission Regulation No 536/93, Art. 7)

Summary

Articles 1 and 2 of Regulation No 3950/92 establishing an additional levy in the milk and milk products sector do not authorise the competent body to act directly, in cases other than that of direct sales, against a producer to recover the amount owed by him in respect of the additional levy on milk. However, the Member States ' obligation under Article 10 EC to take measures to ensure collection of the levy in the event of the mechanism provided for in Article 2(2) of that regulation being frustrated includes the power to take direct action against the producer with a view to recovering the amount payable where it is established that the producer has not paid it to the purchaser and that the purchaser is not taking due steps to collect it from the producer. On the other hand, non-compliance with the conditions laid down in Article 7 of Regulation No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products, and in particular the absence of approval as purchaser, is not in itself relevant.

see para. 41, operative part
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Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Exemptions provided for by the Sixth Directive — Exemption for medical care provided in the exercise of the medical and paramedical professions — Scope — (Art. 13A(1)(c) of Council Directive 77/388)

Summary

Article 13A(1)(c) of Sixth Directive 77/388, relating to the exemption from value added tax of certain medical services, does not exempt all the services which may be effected in the exercise of the medical and paramedical professions, but only " provision of medical care" .

In that regard, it is the purpose of a medical service which determines whether it should be exempt from VAT. Therefore, if the context in which such a service is effected enables it to be established that its principal purpose is not the protection, including the maintenance or restoration, of health but rather the provision of advice required prior to the taking of a decision with legal consequences, the exemption does not apply to the service.

Thus, Article 13A(1)(c) is to be interpreted as meaning that the exemption from VAT under that provision applies to medical services consisting of:

─ conducting medical examinations of individuals for employers or insurance companies,

─ the taking of blood or other bodily samples to test for the presence of viruses, infections or other diseases on behalf of employers or insurers, or

─ certification of medical fitness, for example, as to fitness to travel,

where those services are intended principally to protect the health of the person concerned.

On the other hand, the said exemption does not apply to the following services, performed in the exercise of the medical profession:

─ giving certificates as to a person ' s medical condition for purposes such as entitlement to a war pension,

─ medical examinations conducted with a view to the preparation of an expert medical report regarding issues of liability and the quantification of damages for individuals contemplating personal injury litigation,

─ the preparation of medical reports following examinations referred to in the previous indent and medical reports based on medical notes without conducting a medical examination,

─ medical examinations conducted with a view to the preparation of expert medical reports regarding professional medical negligence for individuals contemplating litigation,

─ the preparation of medical reports following examinations referred to in the previous indent and medical reports based on medical notes without conducting a medical examination.

see paras 53, 60, 68-69, operative part 1-2