ddrg/super_eurlex huggingface dataset:
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Preliminary rulings – Reference to the Court – National court or tribunal within the meaning of Article 234 EC – Meaning – Arbitration panel – Excluded

(Art. 234 EC)

Summary

An arbitration tribunal, such as the Collège d’arbitrage de la Commission de Litiges Voyages (Belgium), which resolves disputes between individuals and travel agencies, is not a court or tribunal within the meaning of Article 234 EC where the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the Belgian public authorities are not involved in the decision to opt for arbitration.

(see paras 13, 15-16, operative part)
Case C-141/04

Mikhail Peros

v

Tekhniko Epimelitirio Ellados

Reference for a preliminary ruling from the Simvoulio tis Epikratias

‛Directive 89/48/EEC — Workers — Recognition of diplomas — Mechanical engineer’

Judgment of the Court (Fourth Chamber), 14 July 2005 I-7165

Summary of the Judgment

Freedom of movement for persons — Freedom of establishment — Workers — Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration — Directive 89/48 — Taking up or pursuit of a regulated profession on the same conditions as those which apply to nationals (Article 3) — Direct effect without the official recognition of a candidate's qualifications by the competent national authorities — Imposition of compensatory measures — Limits

(Council Directive 89/48, Art. 3(a))

Article 3(a) of Directive 89/48 on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years' duration provides that the competent authority of the host Member State may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue a regulated profession on the same conditions as apply to its own nationals if the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State.

Where national measures transposing the directive have not been adopted within the period prescribed by it, a national of a Member State may rely on that provision in order to obtain, in the host Member State, authorisation to pursue a regulated profession That possibility may not be made dependent on recognition of the qualifications of the person concerned by the competent national authorities.

In addition, the compensatory measures referred to in Article 4(1) of Directive 89/48 may be imposed on the person concerned only in so far as they are provided for in the national legislation in force when the application in question was processed.

(see paras 30, 34, 40, operative part)
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1. Freedom to provide services — Television broadcasting activities — Directive 89/552 — Concept of ‘television broadcasting’ — Definition independent of Article 1(a) of Directive 89/552, irrespective of the concept of ‘information society service’ in Directive 98/34 — Services coming within that concept — Criteria

(European Parliament and Council Directive 98/34, Art. 1(2); Council Directive 89/552, Art. 1(a))

2. Freedom to provide services — Television broadcasting activities — Directive 89/552 — Concept of ‘television broadcasting’ — Service consisting of broadcasting television programmes intended for reception by the public and not provided at the individual request of a recipient — Included — Manner of compliance with the obligation to reserve for European works a majority proportion of transmission time — Irrelevant

(Council Directive 89/552, Arts 1(a), and 4(1))

Summary

1. The concept of ‘television broadcasting’ referred to in Article 1(a) of Directive 89/552 concerning the pursuit of television broadcasting activities, as amended by Directive 97/36, is defined independently by that provision. It is not defined by opposition to the concept of ‘information society service’ within the meaning of Article 1(2) of Directive 98/34, laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, as amended by Directive 98/48, and therefore does not necessarily cover services which are not covered by the latter concept.

A service comes within the concept of ‘television broadcasting’ if it consists of the initial transmission of television programmes intended for reception by the public, that is, an indeterminate number of potential television viewers, to whom the same images are transmitted simultaneously. The manner in which the images are transmitted is not a determining element in that assessment.

(see paras 25, 33, operative part 1-2)

2. A service which consists of broadcasting television programmes intended for reception by the public and which is not provided at the individual request of a recipient of services is a television broadcasting service within the meaning of Article 1(a) of Directive 89/552 concerning the pursuit of television broadcasting activities, as amended by Directive 97/36. Priority is to be given to the standpoint of the service provider in the analysis of the concept of ‘television broadcasting service’, as the determining criterion for that concept is the broadcast of television programmes ‘intended for reception by the public’. However, the situation of services which compete with the service in question is not relevant for that assessment.

Moreover, the conditions in which the provider of such a service complies with the obligation referred to in Article 4(1) of Directive 89/552, to reserve for European works a majority proportion of his transmission time, are irrelevant for the classification of that service as a television broadcasting service.

(see paras 42, 45, 52, operative part 3-4)
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Freedom of movement for persons — Workers — Equal treatment — Tideover allowances for young people seeking their first employment — Grant conditional on completion of secondary education in the Member State concerned — Not permissible — Justification – None

(Art. 39 EC)

Summary

It is contrary to Article 39 EC for a Member State to refuse to grant a tideover allowance to a national of another Member State seeking his first employment who is not the dependent child of a migrant worker residing in the Member State granting the allowance, on the sole ground that he completed his secondary education in another Member State.

Inasmuch as it links the grant of the allowance to the requirement that the applicant has obtained the required diploma in that Member State, this condition is likely to be met more easily by national citizens and therefore risks placing nationals of other Member States at a disadvantage.

Such a difference in treatment can be justified only if it is based on objective considerations which are independent of the nationality of the persons concerned and proportionate to the aim legitimately pursued by the national law. In this regard, while it is legitimate for the national legislature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned, a single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature and goes beyond what is necessary to attain the objective pursued.

(see paras 28-31, 38, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value-added tax – Deduction of input tax – Capital goods – Adjustment of the deduction initially made – Disposal before the end of the period of adjustment by means of two connected transactions, one exempt, the other taxable – Apportionment

(Council Directive 77/388, Arts 5(1) and 20(3))

Summary

The system of deductions and adjustments provided for in Articles 17 to 20 of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is intended to establish a close and direct relationship between the right to deduct input tax and the use of the goods and services concerned for taxable transactions.

Article 20(3) of that directive, which governs the particular case of the supply of capital goods before the end of the period of adjustment, is to be interpreted as meaning that, where a 999-year lease over capital goods is granted to a person against the payment of a substantial premium and the freehold reversion in that property is transferred three days later to another person at a much lower price, and where those two transactions

– are inextricably linked, and

– consist of a first transaction which is exempt and a second transaction which is taxable,

– and if those transactions, owing to the transfer of the right to dispose of those capital goods as owner, constitute supplies within the meaning of Article 5(1) of that directive,

the goods in question are regarded, until the expiry of the period of adjustment, as having been used in business activities which are presumed to be partly taxable and partly exempt in proportion to the respective values of the two transactions.

(see paras 56, 73, 82, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions laid down by the Sixth Directive – Exemption for hospital and medical care and closely related activities – Definition of ‘closely related activities’ and of ‘medical care’ – Provision of telephone services and the hiring out of televisions to in-patients and the provision of beds and meals to persons accompanying them – Not included – Exception – Conditions – Assessment by the national court

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

Summary

The supply of telephone services and the hiring out of televisions to in-patients by persons covered by Article 13A(1)(b) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, and the supply by those persons of beds and meals to people accompanying in-patients do not amount, as a general rule, to activities closely related to hospital and medical care within the meaning of that provision. The exemption of such activities provided for in Article 13A(1)(b) of the Directive is designed to ensure that access to such care is not prevented by the increased costs of providing it that would follow if it, or closely related activities, were subject to value added tax. The hospital and medical care envisaged by this provision is, according to the case‑law, that which has as its purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders. Accordingly, taking account of the objective pursued by the exemption provided for in Article 13A(1)(b) of the Sixth Directive, it follows that only the supply of services which are logically part of the provision of hospital and medical-care services, and which constitute an indispensable stage in the process of the supply of those services to achieve their therapeutic objectives, is capable of amounting to ‘closely related activities’ within the meaning of that provision.

The supply of those services can amount to a ‘closely related’ activity only if those supplies are essential to achieve the therapeutic objectives sought by the hospital and medical care and their basic purpose is not to obtain additional income for the supplier by carrying out transactions which are in direct competition with those of commercial enterprises liable for value added tax. It is for the referring court, taking account of all of the specific facts in the litigation before it and, if appropriate, of the content of the medical prescriptions drawn up for the patients concerned, to determine whether the services supplied satisfy those conditions.

(see paras 23-25, 30, 35, operative part 1-2)
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1. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Entitlement to paid annual leave

(Council Directive 93/104, Art. 7(1))

2. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Entitlement to paid annual leave

(Council Directive 93/104, Art. 7)

3. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Entitlement to paid annual leave

(Council Directive 93/104, Art. 7)

Summary

1. Article 7(1) of Directive 93/104 concerning certain aspects of the organisation of working time precludes part of the remuneration payable to a worker for work done from being attributed to payment for annual leave without the worker receiving, in that respect, a payment additional to that for work done. There can be no derogation from that entitlement by contractual arrangement.

(see para. 52, operative part 1)

2. Article 7 of Directive 93/104 concerning certain aspects of the organisation of working time precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave.

(see para. 63, operative part 2)

3. Article 7 of Directive 93/104 concerning certain aspects of the organisation of working time does not preclude, as a rule, sums paid, transparently and comprehensibly, in respect of minimum annual leave, within the meaning of that provision, in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, from being set off against the payment for specific leave which is actually taken by the worker.

The Member States are, however, required to take the measures appropriate to ensure that practices incompatible with Article 7 of the directive are not continued.

(see paras 67, 69, operative part 3)
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1. Acts of the institutions – Temporal application – Procedural rules – Substantive rules – Distinction

(Council Regulation No 2913/92, Arts 217 to 232)

2. European Communities’ own resources – Post-clearance recovery of import or export duties

(Council Regulation No 2913/92, Art. 221(1))

3. European Communities’ own resources – Post-clearance recovery of import or export duties

(Council Regulation No 2913/92, Art. 221)

Summary

1. Procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force.

Consequently, only the procedural rules set out in Articles 217 to 232 of Regulation No 2913/92 establishing the Community Customs Code apply to the recovery, commenced after 1 January 1994, when that code became applicable, of a customs debt incurred prior to that date.

Article 221(3) of the Customs Code must be considered, unlike Article 221(1) and (2), to be a substantive provision and cannot, therefore, be applied to recovery of a customs debt incurred prior to 1 January 1994. On expiry of the period prescribed by that article, an action for recovery of a customs debt is time-barred subject to the exception laid down in that article, which amounts to the debt itself being time-barred and, consequently, extinguished. Moreover, Article 233 of that code states that the list of the different causes of extinction of the customs debt set out at points (a) to (d) of that article is without prejudice, inter alia, to the provisions relating to the time-barring of the customs debt.

Where the customs debt was incurred prior to 1 January 1994, it can be governed only by the rules on limitation in force at that date, even if the procedure for recovery of the debt was commenced after 1 January 1994.

(see paras 31, 40, 42, operative parts 1, 3)

2. Article 221(1) of Regulation No 2913/92 establishing the Community Customs Code, requires the amount of import or export duty to be entered in the accounts before it is communicated to the debtor. It follows from the wording of that provision, which is wholly unambiguous, that entry in the accounts, which consists of entry of the amount of duty by the customs authorities in the accounting records or on any other equivalent medium, is required to take place before the communication to the debtor of the amount of import or export duty.

(see paras 46, 49, operative part 2)

3. Member States are not required to adopt specific procedural rules on the manner in which communication of the amount of import or export duties is to be made to the debtor, laid down in Article 221 of Regulation No 2913/92 establishing the Community Customs Code, where national procedural rules of general application can be applied to that communication, which ensure that the debtor receives adequate information and which enable him, with full knowledge of the facts, to defend his rights.

(see para. 54, operative part 4)
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Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure

(Art. 226 EC)

Summary

The reasoned opinion, provided for in Article 226 EC, must contain a coherent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty. The reasoned opinion and therefore the action, which may not be based on pleas and grounds other than those put forward in that opinion, must therefore set out the complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged.

An action for failure to fulfil obligations which puts before the Court only one aspect of a legal mechanism composed of two inseparable parts and does not satisfy the requirements of coherence and precision must be dismissed as inadmissible.

(see paras 17-18, 21, 23 and operative part)
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Transport – Maritime transport – Freedom to provide services – Maritime cabotage

(Council Regulation No 3577/92, Art. 3(2) and (3))

Summary

In respect of cargo vessels over 650 gt carrying out island cabotage, Article 3(3) of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) provides that all matters relating to manning are to be the responsibility of the flag State when the voyage concerned follows or precedes a voyage to or from another State. In this respect, a ‘voyage which follows or precedes the cabotage voyage’, as set out in that provision, means in principle any voyage to or from another State, whether or not the vessel has cargo on board. However, sham voyages without cargo on board carried out to circumvent Regulation No 3577/92 cannot be permitted. Such an abuse can be found to exist only if, first, notwithstanding that technically the conditions laid down by Article 3(3) of the regulation apply, the result of the international voyage in ballast is that the shipowner benefits, in respect of all matters relating to manning, from the application of the law of the flag State, frustrating the aim of Article 3(2) of the regulation, which is to allow the application of the law of the host State to all matters relating to manning in the case of island cabotage. Second, there must also be objective evidence to show that the essential aim of the international voyage in ballast is to avoid the application of Article 3(2) of Regulation No 3577/92, in favour of Article 3(3).

(see para. 25, operative part)
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Common Customs Tariff – Tariff headings – Sterile flakes of polydimethilsiloxane

Summary

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, is to be interpreted as meaning that a product, such as the polydimethilsiloxane, made up of sterile flakes, specially developed and intended only to be implanted in the body for the treatment of a condition and which is packaged at the time of its presentation to customs in l kg bags, is to be regarded as an appliance to be implanted in the body which must be classified under heading 9021 of the Combined Nomenclature. Since the purpose of such a product is not to replace an organ but to enable a defective muscle to create connective tissues, it must be classified under subheading 9021 90 90 of the Combined Nomenclature.

(see para. 57, operative part)
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1. Freedom of movement for persons – Freedom of establishment

(Arts 43 EC and 48 EC)

2. Freedom of movement for persons – Freedom of establishment – Tax legislation

(Arts 43 EC and 48 EC)

Summary

1. The mere fact that a resident company establishes a secondary establishment, such as a subsidiary, in another Member State cannot set up a general presumption of tax evasion and justify a measure which compromises the exercise of a fundamental freedom guaranteed by the Treaty. On the other hand, a national measure restricting freedom of establishment may be justified on the ground of prevention of abusive practices where it specifically relates to wholly artificial arrangements, which do not reflect economic reality, aimed at circumventing the application of the legislation of the Member State concerned, in particular with a view to escaping the tax normally due on the profits generated by activities carried out on national territory.

(see paras 50-51, 55)

2. Articles 43 EC and 48 EC must be interpreted as precluding the inclusion in the tax base of a resident company established in a Member State of profits made by a controlled foreign company in another Member State, where those profits are subject in that State to a lower level of taxation than that applicable in the first State, unless such inclusion relates only to wholly artificial arrangements intended to escape the national tax normally payable. Accordingly, such a tax measure must not be applied where it is proven, on the basis of objective factors which are ascertainable by third parties, that despite the existence of tax motives that controlled company is actually established in the host Member State and carries on genuine economic activities there.

(see para. 75, operative part)