ddrg/super_eurlex huggingface dataset:
Case C-400/02

Gerard Merida

v

Bundesrepublik Deutschland

(Reference for a preliminary ruling from the Bundesarbeitsgericht)

(Article 39 EC – Collective agreement – Supplementary temporary allowance in favour of former civilian employees of the allied forces in Germany – Frontier workers – Determination of the basis of calculation of that allowance – Notional taking into account of German tax on wages)

Summary of the Judgment

Freedom of movement for persons – Workers – Equal treatment – Social advantages – Interim assistance granted to workers in the event of dismissal – Notional deduction, for workers resident and chargeable to tax in another Member State, of income tax theoretically due in the Member State of employment – Not permissible – Justification – None

(Art. 39 EC; Council Regulation No 1612/68, Art. 7(4))

Articles 39 EC and 7(4) of Regulation No 1612/68 on freedom of movement for workers within the Community preclude national legislation provided for in a collective agreement under which the amount of a social benefit such as a interim assistance by way of unemployment benefit granted to workers in the event of dismissal, which is paid by the Member State of employment to a worker who resides and chargeable to tax in another Member State, is calculated in such a way that the tax on wages payable in the Member State of employment is notionally deducted on determination of the basis of assessment of that benefit, even though, under a double taxation agreement, salaries, wages and analogous emoluments paid to workers not residing in that State are chargeable to tax only in the Member State in which such workers are resident.

The administrative difficulties for the Member State of employment which would stem from the application of different methods of assessment of that assistance depending on the place of residence of the person concerned and the budgetary consequences of the failure to take into account of national wage tax cannot justify that Member State’s failure to comply with its obligations under the Treaty.

(see paras 29-30, 37, operative part)
Case C-36/02

Omega Spielhallen- und Automatenaufstellungs-GmbH

v

Oberbürgermeisterin der Bundesstadt Bonn

(Reference for a preliminary ruling from the Bundesverwaltungsgericht)

(Freedom to provide services – Free movement of goods – Restrictions – Public policy – Human dignity – Protection of fundamental values laid down by the national constitution – ‘Playing at killing’)

Summary of the Judgment

1. Freedom to provide services – Restrictions – Justification on grounds of public policy – Need for and proportionality of the measures – Existence of different systems of protection in other Member States – Not relevant

(Arts 46 EC and 49 EC)

2. Freedom to provide services – Restrictions – National legislation prohibiting the commercial exploitation of games simulating acts of homicide – Justification – Protection of public policy – Respect for human dignity as a general principle of law

(Arts 46 EC and 49 EC)

1. Whilst measures which restrict the freedom to provide services may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives cannot be attained by less restrictive measures, it is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected. Thus the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another State.

(see paras 36-38)

2. Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity.

That measure cannot be regarded as one imposing an unjustified restriction on the freedom to provide services. In the first place, the protection of fundamental rights, it being stated that the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law, constitutes a legitimate interest capable in principle of justifying a restriction on the obligations imposed by Community law, even by virtue of a fundamental freedom guaranteed by the Treaty such as the freedom to provide services. Secondly, the measure in question corresponds to the level of protection of human dignity which the national constitution intended to ensure in the territory of the Member State concerned and does not go beyond what is necessary to achieve the objective pursued.

(see paras 34-35, 39-41, operative part)
Joined Cases C-186/02 P and C-188/02 P

Ramondín SA and Others and Territorio Histórico de Álava – Diputación Foral de Álava

v

Commission of the European Communities

(Appeal – State aid – Tax measures – Misuse of powers – Statement of reasons – New pleas in law)

Summary of the Judgment

1. Action for annulment – Pleas in law – Misuse of powers – Meaning

2. Appeal – Grounds of appeal – Incorrect assessment of the facts – Inadmissible – Review by the Court of the assessment of the evidence – Excluded except in cases of distortion

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

3. Appeal – Grounds of appeal – Plea in law submitted for the first time in the appeal – Inadmissible

(Statute of the Court of Justice, Art. 58)

1. A measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated.

(see para. 44)

2. The assessment of the facts does not, unless the clear sense of the evidence produced before the Court of First Instance was distorted, constitute a question of law which is subject, as such, to review by the Court of Justice in an appeal.

(see para. 46)

3. 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 Court, 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 Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance.

(see para. 60)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services by intermediaries – Determination of the place of fiscal connection by Article 28b(E)(3) of the Sixth Directive – Scope – Principal transaction not subject to value added tax – Not relevant – Determination of the place of the principal transaction – Application of the specific provisions of Article 28b(A) and (B)

(Council Directive 77/388, Art. 28b(A),(B) and (E)(3))

Summary

Article 28b(E)(3) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680, which provides, by way of derogation from Article 9(1) of the same directive, that the place of the supply of services rendered by intermediaries acting in the name and for the account of other persons, when such services form part of certain transactions, is to be the place where the transaction is carried out, is not to be interpreted as meaning that it covers only the services of intermediaries provided to a taxable person or to a non-taxable legal person for the purposes of value added tax.

As follows from its wording, that provision covers generally supplies of services rendered by intermediaries, without distinguishing according to whether or not the recipients of the services are subject to value added tax, and it does not matter, for the purposes of determining the place of an intermediary’s activities, whether the principal transaction is subject to value added tax or whether the transaction is non-taxable.

Moreover, when an intermediary transaction falls within the scope of Article 28b(E)(3), it is necessary, for the purposes of determining the place where the transaction underlying the supply of intermediary services was carried out, to refer to the specific provisions of Article 28b(A) and (B). The place of an intra-Community acquisition of goods is governed by the latter provision, which derogates from the general provisions of Article 8 of the Sixth Directive regulating the supply of goods within a Member State.

(see paras 18, 21, 23, 25-26, operative part 1-2)
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Member States ? Obligations ? Implementation of directives ? Failure to fulfil obligations ? National system pleaded as justification ? Not permissible

(Art. 226 EC)

Summary

disp.)
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Freedom to provide services – Restrictions – Security firms and detective agencies established in another Member State – Obligation to obtain prior authorisation for the undertakings and their managers and an identity card for their staff – Failure to take into account the obligations in the Member State of establishment – Not permissible – Justification – None

(Art. 49 EC)

Summary

A Member State fails to fulfil its obligations under Article 49 EC if it adopts provisions which:

- require that private security firms and detective agencies that wish to provide services in that State and their managers must have a permit, without taking into account the obligations to which foreign service providers are already subject in the Member State where they are established, and by charging fees for this permit, and

- require that members of the staff of these firms seconded from the Member State where they are established to work in the Member State concerned have a proof of identity card issued by its authorities, in so far as the checks to which cross-frontier providers of services are already subject in their Member State of origin are not taken into account for the requirement in question.

Such requirements are restrictions on the freedom to provide services which go beyond what is necessary to attain the stated purpose and cannot therefore be justified on grounds of public interest.

(see paras 18, 20, 30, 33, operative part)
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Free movement of goods – Customs duty – Charges having equivalent effect – Definition –Tax levied in a municipality of a Member State and imposed on a class of goods on account of their being transported beyond the boundaries of the municipal territory – Included

(Art. 23 EC)

Summary

A tax proportionate to the weight of goods, levied in one municipality of a Member State only and imposed on one class of goods when those goods are transported beyond the territorial boundaries of that municipality, constitutes a charge having effect equivalent to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it is imposed also on goods the final destination of which is within the Member State concerned.

First, the very principle of the customs union, as provided for by Article 23 EC, requires the free movement of goods to be ensured within the union generally, not in trade between Member States alone, but more broadly throughout the territory of the customs union, and the absence of charges – whether between States or within a State – exhibiting the features of a customs duty or of a charge having equivalent effect is a precondition essential to the realisation of such a customs union. Second, given that the tax at issue is imposed on all goods in the category in question that cross the territorial boundaries of the municipality where they are produced, no distinction being made between goods the final destination of which is in the Member State of production and goods destined for other Member States, it impinges by its nature and terms on trade between Member States.

(see paras 22, 24, 26, 35, operative part 1)
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1. Appeals – Grounds – Incorrect assessment of the facts – Inadmissibility – Dismissal –Definition of the legal nature of the facts – Admissibility

(Art. 225 EC)

2. Actions for annulment – Measures against which actions may be brought – Concept – Measures producing binding legal effects – Institution’s silence or inaction – Refunding of a sum overpaid in relation to a fine with no decision taken as to the request for payment of interest presented by the undertaking making the claim – Excluded

(Art. 230 EC)

Summary

1. Although the Court of Justice has no jurisdiction to review the assessment of the facts made by the Court of First Instance, it does have jurisdiction pursuant to Article 225 EC to review the definition of the legal nature of those facts and the determination of the legal consequences made by the Court of First Instance.

(see para. 36)

2. Any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 230 EC for a declaration that it is void. As a rule, mere silence on the part of an institution cannot be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of Community law. While not excluding that in certain particular circumstances that principle may not be applicable, so that an institution’s silence or inaction may exceptionally be considered to constitute an implied refusal, it is to be considered that, in the case of a judgment of the Court of First Instance reducing the amount of a fine, followed by a letter addressed by the appellant to the Commission, asking the latter to refund the overpaid part of the fine together with interest, the Commission’s paying of the principal sum only without explicitly taking a position on the request for payment of interest does not amount to an implied decision rejecting that request.

(see paras 44-45)
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Approximation of laws – Disposal of waste oils – Directive 75/439 – Obligation of the Member States to give priority to the processing of oils by regeneration – Limits – Technical, economic or organisational constraints – Meaning

(Council Directive 75/439, Art. 3(1))

Summary

It is clear from Article 3(1) of Directive 75/439 on the disposal of waste oils, as amended by Directive 87/101, that the reference to ‘technical, economic or organisational constraints’ in that article forms part of a provision giving general expression to the obligation imposed on Member States and that the Community legislature did not thereby intend to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.

To consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in that article would deprive it of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary to give priority to the processing of waste oils by regeneration.

(see paras 35-36)
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1. Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Obligation of the Member States to provide for review procedures – Reviewable decisions – Meaning – Decisions taken outside a formal award procedure and prior to a formal call for tenders – Included – Access to review procedures – Conditions – Requirement for procedure to have reached a particular stage – Not permissible

(Council Directives 89/665, Art. 1(1), and 92/50)

2. Approximation of laws – Award procedures for public service contracts – Directive 92/50 – Scope – Contracting authority having a holding in the capital of a company legally distinct from it together with one or more private undertakings – Contract concluded by the contracting authority with that company – Included

(Council Directive 92/50)

Summary

1. Article 1(1) of Directive 89/665 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 relating to the coordination of procedures for the award of public service contracts, itself amended by Directive 97/52, must be interpreted as meaning that the obligation of the Member States to ensure that effective and rapid remedies are available against decisions taken by contracting authorities extends also to decisions taken outside a formal award procedure and decisions prior to a formal call for tenders, in particular the decision on whether a particular contract falls within the personal and material scope of Directive 92/50, as amended. That possibility of review is available to any person having or having had an interest in obtaining the contract in question who has been or risks being harmed by an alleged infringement, from the time when the contracting authority has expressed its will in a manner capable of producing legal effects. The Member States are not therefore authorised to make the possibility of review subject to the fact that the public procurement procedure in question has formally reached a particular stage.

(see para. 41, operative part 1)

2. Where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52, with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down by that directive must always be applied, even if the holding is a majority one.

(see para. 52, operative part 2)
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European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Scope – Decision of the judicial authorities of one Member State closing a case on the ground that similar proceedings have been started in another Member State without any determination whatsoever as to the merits of the case – Excluded

(Art. 2, fourth indent, first subpara, EU; Convention implementing the Schengen Agreement, Art. 54)

Summary

The principle ne bis in idem , enshrined in Article 54 of the Convention implementing the Schengen Agreement, the purpose of which is to ensure that no one is prosecuted on the same facts in several Member States on account of his having exercised his right to freedom of movement, does not fall to be applied to a decision of the judicial authorities of one Member State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case. Such a decision cannot in fact constitute a decision finally disposing of the case against that person within the meaning of Article 54.

The consequence of applying that principle to such a decision to close criminal proceedings would be to make it more difficult, indeed impossible, actually to penalise in the Member States concerned the unlawful conduct with which the defendant is charged. Such a consequence would clearly run counter to the very purpose of the provisions of Title VI of the Treaty on European Union, as set out in the fourth indent of the first subparagraph of Article 2 EU.

(see paras 30, 33-35, operative part)
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Approximation of laws — Uniform legislation — Industrial and commercial property — Patent law — Supplementary protection certificate for medicinal products — Authorisation to place a product on the market — Automatic recognition by a State of the European Economic Area of an authorisation to place a product on the Swiss market — Regarded as first authorisation to place a product on the market in the Community

(EEA Agreement, Annex II, as amended by Annex 2 to the Decision of the EEA Council No 1/95; Council Regulation No 1768/92, Art. 13)

Summary

Article 13 of Regulation No 1768/92 concerning the creation of a supplementary protection certificate for medicinal products is to be read, for the purposes of the application of the Agreement on the European Economic Area, as providing that the certificate is to take effect at the end of the lawful term of the basic patent for a period equal to the period which elapsed between the date on which the application for a basic patent was lodged and the date of the first authorisation to place the product on the market in the territory of one of the States covered by the EEA Agreement, reduced by a period of five years.

The EEA Agreement, Annex II to which, as amended by Annex 2 to the Decision of the EEA Council No 1/95 on the entry into force of the Agreement on the European Economic Area for the Principality of Liechtenstein, permits the latter to apply, in parallel to the Community legislation, the Swiss technical regulations and standards deriving from its regional union with Switzerland, recognises that two types of marketing authorisation may co-exist in the Principality of Liechtenstein, namely, first, marketing authorisations issued by the Swiss authorities, which are automatically recognised in Liechtenstein, and, second, marketing authorisations issued in Liechtenstein in accordance with the Community legislation.

It thus follows from Article 13 of Regulation No 1768/92, read in conjunction with the EEA Agreement, as amended, that an authorisation to place a medicinal product on the market issued by the Swiss authorities and automatically recognised in Liechtenstein within the framework of its regional union with Switzerland must be regarded as the first authorisation to place the product on the market within the meaning of Article 13.

(see paras 26, 28-30, 33, operative part)