ddrg/super_eurlex huggingface dataset:
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1. Procedure – Legal basis of an action – Choice for the applicant and not the Community judicature – Admissibility assessed in the light of the applicant’s choice

2. Actions for annulment – Challengeable acts – Action brought by a Member State against a call for applications, issued by Eurojust, for positions as members of the temporary staff – Excluded – Requirement for judicial review – Rules

(Article 230 EC; Article 35 EU, 41 EU, 46(b) EU; Statute of the Court, Arts 40 and 56; Staff Regulations of Officials, Art. 91; Council Decision 2002/187, Art. 30)

Summary

1. In judicial proceedings, it is for the applicant to choose the legal basis of its action and not for the Community judicature itself to choose the most appropriate legal basis. It follows that, where the applicant brings its action under a particular provision, while leaving to the discretion of the Court the choice of the most appropriate legal basis to examine that action, the admissibility of that action must be examined in the light of that provision.

(see para. 35)

2. A call for applications, issued by Eurojust, for positions as members of the temporary staff is not capable of being the subject of an action for annulment under Article 230 EC. Such a call is not included in the list of acts the legality of which the Court may review under that article. Moreover, Article 41 EU does not provide that Article 230 EC is to apply to the provisions on police and judicial cooperation in criminal matters in Title VI of the EU Treaty, the jurisdiction of the Court in such matters being defined in Article 35 EU, to which Article 46(b) EU refers.

Such a call for applications is not, however, exempt from judicial review, for, as is clear from Article 30 of Decision 2002/187, setting up Eurojust with a view to reinforcing the fight against serious crime, Eurojust staff are to be subject to the rules and regulations applicable to officials and other servants of the European Communities. It follows that the main parties concerned, namely the candidates for the various positions in the contested calls for applications, have access to the Community Courts under the conditions laid down in Article 91 of the Staff Regulations of Officials. In the event of such an action, Member States would be entitled to intervene in the proceedings in accordance with Article 40 of the Statute of the Court of Justice and could, where appropriate, as is clear from the second and third paragraphs of Article 56 of that Statute, appeal against the judgment of the Court of First Instance.

(see paras 36-38, 40-43)
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Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 – Alcohol and alcoholic beverages – Tax on the supply of beverages for immediate consumption on the premises – Classification of tax not on products subject to excise duty but on the provision of services relating to such products – Need for that tax to pursue specific purposes – None

(Council Directive 92/12, Art. 3(2) and (3))

Summary

A tax which is levied, in a catering context, on the supply for consideration of alcoholic beverages for immediate consumption on the premises must be considered to be a tax on the supply of services relating to products subject to excise duty which cannot be characterised as a turnover tax for the purposes of the second subparagraph of Article 3(3) of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products.

In order to determine whether a tax applies to products subject to excise duty for the purposes of Article 3(2) of Directive 92/12 or, rather, to the services supplied in relation to such products for the purposes of the second subparagraph of Article 3(3), regard must be had to the predominant feature of the transaction on which it is imposed. A supply of alcoholic beverages in a catering context is characterised by an array of features and acts, of which the supply of the product itself is only one component and in which services predominate.

In addition, the ‘same proviso’ to which taxes falling within the scope of the second subparagraph of Article 3(3) are subject refers only to the condition set out in the first subparagraph of that paragraph, namely that such ‘taxes do not give rise to border-crossing formalities in trade between Member States’. The directive therefore does not require that the taxes concerned comply with the condition laid down in Article 3(2), namely that they be for a specific purpose.

(see paras 21, 27, 30, 33-34, operative part 1, 2)
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Tax provisions –– Harmonisation of laws –– Turnover taxes –– Common system of value added tax –– Supply of services — Determination of the place of fiscal connection — Entertainment or similar activities — Meaning — Making available to the public, for consideration, slot gaming machines installed in entertainment arcades — Included

(Council Directive 77/388, Art. 9(2)(c))

Summary

The supply of services consisting of enabling the public to use, for consideration, slot gaming machines installed in amusement arcades established in the territory of a Member State must be regarded as constituting entertainment or similar activities within the meaning of the first indent of Article 9(2)(c) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, so that the place where those services are supplied is the place where they are physically carried out.

The principal objective of the activity referred to above is the entertainment of slot machine users and not financial gain on their part, given that the possibility of losing is indeed an essential component of the sort of entertainment sought by those users. Application of the rule of the place where services are deemed to be supplied laid down by the first indent of Article 9(2)(c) cannot, moreover, be precluded on the ground that the recipients of the services concerned are final consumers, because the scope of application of that provision is not restricted to supplies of services between taxable persons.

(see paras 31, 33-34, operative part)
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1. Freedom of movement for persons – Right of residence for third-country nationals who are members of the family of Community nationals – National law making the grant of a residence permit conditional on obtaining a residence visa before entry onto the national territory – Not permissible

(Council Directives 68/360, 73/148 and 90/365)

2. Freedom of movement for persons – Derogations – Decisions concerning control of aliens – Failure to comply with the time-limit for taking a decision on whether to grant a residence permit – Not permissible – Right to reside provisionally in the national territory while awaiting the decision – No effect

(Council Directive 64/221)

Summary

1. A Member State which requires third-country nationals, who are members of the family of a Community national who has exercised his right to freedom of movement, first to obtain a residence visa for a residence permit to be issued fails to fulfil its obligations under Directives 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity.

It is true that the Member States may, in accordance with Article 3(2) of those directives, when a national of a Member State moves within the Community with a view to exercising the rights conferred on him by the Treaty and those directives, demand an entry visa or an equivalent document from members of his family who are not nationals of one of those States. They must, however, grant every facility for obtaining any necessary visas. In that regard, the Court has held that if the provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory.

(see paras 32-33, 36, 38, 49, operative part)

2. A Member State which fails to issue a residence permit as soon as possible, and in any event not later than six months from the date on which the application for that permit was submitted, to third-country nationals who are members of the family of a Community national who has exercised his right to freedom of movement fails to fulfil its obligations under Directive 64/221 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.

It is of little importance in that regard that the persons concerned may provisionally reside in the national territory while awaiting the decision concerning the grant or refusal of the residence permit. The question whether the fact that the time-limit is exceeded constitutes an obstacle to taking up residence or exercising an activity is irrelevant.

(see paras 47, 49, operative part)
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Environment — Assessment of the effects of projects on the environment — Directive 85/337 — Projects of the classes listed in Annex II subject to an assessment — Member States’ discretion — Limits — National implementing measures — Breach — Infringement of the directive — Failure to fulfil obligations under Article 226 EC

(Art. 226 EC; Council Directive 85/337, Arts 2(1) and 4(2))

Summary

Article 4(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment gives the Member States a discretion to decide whether the characteristics of a project belonging to the classes listed in Annex II to that directive require that it be made subject to an assessment of its effects on the environment, the limits of that discretion being found in the obligation on those States, set out in Article 2(1) of that directive, that projects likely to have significant effects on the environment are to be subject to such an assessment. Where, in the exercise of the power laid down in the second subparagraph of Article 4(2), a Member State defines general rules for determining whether projects falling within that article must be made subject to prior assessment of their effects on the environment before consent is given, the infringement of those rules necessarily constitutes an infringement of the combined provisions of Articles 2(1) and 4(2). Whilst such a breach of Community law also constitutes a breach of the national law adopted to apply Community law and national legal procedures would most probably have been capable of establishing it, that breach nevertheless constitutes a failure on the part of that Member State to fulfil its obligations, contrary to Article 226 EC.

(see paras 19-20, 22)
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Agriculture — Common organisation of the markets — Export refunds — Conditions for granting — Products of sound and fair marketable quality — Meaning — Meat which cannot be marketed in normal conditions— Excluded

(Commission Regulation No 3665/87, Art. 13)

Summary

Article 13 of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products must be interpreted as meaning that meat fulfilling the hygiene criteria, the marketing of which for human consumption within the European Community is restricted by Community rules to the local market because it comes from animals which have undergone special emergency slaughtering, cannot be regarded as being of ‘sound and fair marketable quality’, as required for the grant of export refunds. Since such meat cannot be marketed in normal conditions, even if it fulfils the hygiene criteria and is the object of a commercial transaction, it does not meet that requirement for the grant of a refund.

(see paras 22, 30, 32, operative part)
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Approximation of laws — Insurance against civil liability in respect of motor vehicles — Directives 72/166, 84/5 and 90/232 — Determination of the rules on civil liability applicable to road accidents — Conditions for limiting the right to compensation paid by compulsory motor vehicle insurance based on the contribution to the damage of a passenger who is a victim of the accident — Powers of the Member States — Limits — Effect of the fact that the passenger concerned is the ‘owner of the vehicle’ — None

(Council Directives 72/166, Art. 3(1), 84/5, Art. 2(1), and 90/232, Art. 1)

Summary

It is clear from the aim of Directives 72/166, 84/5 and 90/232 on the approximation of the laws of the Member States in relating to insurance against civil liability in respect of the use of motor vehicles, and from their wording, that they do not seek to harmonise the rules of the Member States governing civil liability and that, as Community law stands at present, the Member States are free to determine the rules of civil liability applicable to road accidents, and, in particular, the conditions for limiting the right to compensation paid by the compulsory motor vehicle insurance on account of the fact that the passenger who is a victim of the accident contributed to the injury.

The Member States must, however, exercise their powers in compliance with Community law and, in particular, with Article 3(1) of Directive 72/166, Article 2(1) of Directive 84/5 and Article 1 of Directive 90/232, whose aim is to ensure that compulsory motor vehicle insurance allows all passengers who are victims of an accident caused by a motor vehicle to be compensated for the injury or loss they have suffered. The national provisions which govern compensation for road accidents cannot, therefore, deprive those provisions of their effectiveness.

Such would be the case specifically where, solely on the basis of the passenger’s contribution to the occurrence of his injuries, national rules, established on the basis of general and abstract criteria either denied the passenger the right to be compensated by the compulsory motor vehicle insurance or limited such a right in a disproportionate manner. The fact that the passenger concerned is the owner of the vehicle the driver of which caused the accident is irrelevant in that regard.

(see paras 24, 27-29, 31, 35, 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 used in part for business purposes and in part for private purposes — National rules which predate the Sixth Directive precluding allocation of goods wholly to the business and the right to deduct in full the tax due on their acquisition — Not permissible

(Council Directives 67/228, Art. 11, and 77/388, Arts 6(2) and 17(2) and (6))

Summary

Article 6(2) and Article 17(2) and (6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, must be interpreted as precluding national legislation adopted before that directive came into force which does not make it possible for a taxable person to allocate capital goods used in part for business purposes and in part for purposes other than those of his business wholly to his business and, where appropriate, to deduct immediately and in full the value added tax due on the acquisition of those goods.

It is true that Article 17(6) of the Sixth Directive makes it possible for a Member State to retain a national system which existed before that directive came into force. However, that provision presupposes that the exclusions which those States may retain pursuant to it were lawful under Second Directive 67/228, which predates the Sixth Directive. In that respect, by providing that the Member States could exclude from the deduction system ‘certain goods and services … in particular those capable of being exclusively or partially used for the private needs of the taxable person or of his staff’, Article 11(4) of the Second Directive did not confer on Member States an unfettered discretion to exclude all and any goods and services from the system of the right of deduction, in particular, all goods in so far as they are used for the private purposes of the taxable person.

(see paras 31-34, 36, operative part)
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Free movement of capital — Liberalisation of capital movements — Transactions eligible for general permission for the conclusion or performance of transactions or for transfers between residents of Member States under Article 2 of the Directive of 11 May 1960 — Acquisition of bonds dealt in and quoted on a stock exchange — Included — Method of financing the acquisition — No effect

(Council Directive of 11 May 1960, Art. 2 and Annex I, List B, Item IV A and List D, Items VI and IX)

Summary

Bonds denominated in national currency for a term of one year from their issue, dealt in and quoted on a stock exchange, issued by a bank established in a Member State and belonging to that State, fall within ‘securities dealt in on a stock exchange’ referred to in List B, Item IV A of Annex I to the Directive of 11 May 1960 for the implementation of Article 67 of the Treaty, and not within ‘short-term investments in Treasury bills and other securities normally dealt in on the money market’ referred to in List D, Item VI of that annex. The acquisition of those bonds and the proceeds of their liquidation are governed by Article 2 of that directive, which refers to List B of Annex I, which provides for the repatriation of those proceeds.

Those securities can, as provided for in Article 2, be granted general permission by the Member State concerned for the conclusion or performance of transactions or for transfers between residents of Member States.

The fact that an acquisition of such bonds was financed using balances on current or deposit account with a credit institution, even if falling within List D, Item IX of that annex, cannot have an influence on the classification of the capital movement in question under List B, Item IV A.

(see paras 27, 34, 37, operative part 1-2)
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1. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Scope — Public service concession covering the management of a public pay car park — Excluded

(Council Directive 92/50)

2. Community law — Principles — Equal treatment — Discrimination on the ground of nationality — Freedom of establishment — Freedom to provide services — Treaty provisions — Scope — Public service concession contracts — Included — Limits — Specific case

(Arts 12 EC, 43 EC and 49 EC)

Summary

1. The award, by a public authority to a service provider, of the management of a public pay car park, in consideration for which that provider is remunerated by sums paid by third parties for the use of that car park, is a public service concession to which Directive 92/50 relating to the coordination of procedures for the award of public service contracts does not apply.

(see para. 43, operative part 1)

2. Public authorities concluding public service concession contracts are bound to comply with the fundamental rules of the EC Treaty, in general, particularly Articles 43 EC and 49 EC, and the principle of non-discrimination on the ground of nationality set out in Article 12 EC, which are specific expressions of the general principle of equal treatment. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed.

However, the application of the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as the general principles of which they are the specific expression, is precluded if the control exercised over the concessionaire by the concession-granting public authority is similar to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority.

The aforementioned provisions and principles preclude, in that regard, a public authority from awarding, without putting it out to competition, a public service concession to a company limited by shares resulting from the conversion of a special undertaking of that public authority, a company whose objects have been extended to significant new areas, whose capital must obligatorily be opened in the short term to other capital, the geographical area of whose activities has been extended to the entire country and abroad, and whose Administrative Board possesses very broad management powers which it can exercise independently.

(see paras 46-49, 62, 72, operative part 2)
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1. Citizens of the European Union – Right of freedom of movement and of residence – Directive 90/364

(Art. 18 EC; Council Directive 90/364, Art. 1(1), first subpara.)

2. Freedom of movement for persons – Right of entry and residence of nationals of Member States – Directives 68/360, 73/148, 90/364, 90/365 and 93/96

(Council Directives 68/360, Art. 4, 73/148, Art. 4, 90/364, Art. 2, 90/365, Art. 2, and 93/96, Art. 2)

Summary

1. A Member State fails to fulfil its obligations under Article 18 EC and Directive 90/364 on the right of residence if, when applying that directive to nationals of a Member State who wish to rely on their rights under that directive and on Article 18 EC, it excludes the income of a partner residing in the host Member State in the absence of an agreement concluded before a notary and containing an assistance clause in order to assess whether the person concerned has sufficient resources.

According to the terms of the first subparagraph of Article 1(1) of Directive 90/364, it is sufficient for the nationals of Member States to ‘have’ the necessary resources, and that provision lays down no requirement whatsoever as to their origin. To add to the condition of sufficient resources a requirement as to the origin of the resources, particularly the requirement of a legal link between the provider and the recipient of the resources, not being necessary for the attainment of the objective pursued by Directive 90/364, namely the protection of the public finances of the host Member State, constitutes a disproportionate interference with the exercise of the fundamental right of freedom of movement and of residence upheld by Article 18 EC.

(see paras 40-42, 46, 51, operative part 1(a))

2. By making provision for automatic service of an order to leave its territory on citizens of the Union who do not produce within the prescribed period the documents required to obtain a residence permit, a Member State fails to fulfil its obligations under Article 2 of Directive 90/364 on the right of residence, Article 4 of Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 4 of Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, Article 2 of Directive 93/96 on the right of residence for students and Article 2 of Directive 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity.

Such automatic deportation impairs the very substance of the right of residence directly conferred by Community law. Even if a Member State may, where necessary, decide to deport a national of another Member State where that person is unable to produce, within the required period, the documents proving that he fulfils the necessary financial conditions, where that deportation is automatic it is disproportionate.

(see paras 68, 72, operative part 1(b))