ddrg/super_eurlex huggingface dataset:
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1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure – Adjustment to a change in Union law – Lawfulness – Conditions

(Art. 226 EC)

2. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion – Situation of uncertainty resulting from particular circumstances arising during the legislative procedure – No failure to fulfil obligations

(Arts 43 EC, 45, first para., EC and 226 EC; European Parliament and Council Directive 2005/36)

Summary

1. In an action for failure to fulfil obligations, although the claims as stated in the application cannot as a rule be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, the fact nevertheless remains that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the original version of a Union measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new Union measure. Conversely, the subject-matter of the dispute may not be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings.

(see para. 42)

2. When, in the course of the legislative procedure, particular circumstances, such as the failure of the legislature to adopt a clear position or the failure clearly to determine the ambit of a provision of Union law, give rise to a situation of uncertainty, it is not possible to conclude that, at the end of the period prescribed in the reasoned opinion, there existed a sufficiently clear obligation for the Member States to transpose a directive.

(see paras 54-56)
Judgment of the Court (Sixth Chamber) of 20 November 2008 – Commission v Spain

(Case C‑94/08)

Failure of a Member State to fulfil obligations – Posts of ship’s captain and chief mate – Nationality clause

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 19)

2. Member States – Obligations – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 226 EC) (see para. 21)

3. Freedom of movement for persons – Workers – National legislation reserving the posts of captain and chief mate on all vessels flying the flag of a Member State, other than merchant ships with a gross tonnage of less than 100 GT which carry cargo or fewer than 100 passengers, to nationals (Art. 39 EC) (see para. 23, operative part)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 39 EC – Requirement of Spanish nationality for persons occupying the posts of captain and chief mate on certain ships flying the Spanish flag – Incompatibility with Community law.

Operative part

The Court:

1. Declares that in requiring in its legislation Spanish nationality for persons occupying the posts of ship’s captain and chief mate of all vessels flying the Spanish flag other than merchant ships with a gross tonnage of less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which the Kingdom of Spain has sovereignty, sovereign rights or jurisdiction, the Kingdom of Spain has failed to fulfil its obligations under Community law and, in particular, under Article 39 EC;
Judgment of the Court (Eighth Chamber) of 12 March 2009 – Commission v Greece

(Case C‑298/08)

Failure of a Member State to fulfil obligations – Directive 2006/22/EC – Approximation of laws – Social legislation relating to road transport activities – Failure to transpose within the prescribed period

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 7)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (OJ 2006 L 102, p. 35).

Operative part

The Court:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC, the Hellenic Republic has failed to fulfil its obligations under Directive 2006/22.
1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the Republic of Finland has failed to fulfil its obligations under that directive;
Judgment of the Court (Eighth Chamber) of 24 March 2009 – Commission v Luxembourg

(Case C‑184/08)

Failure of a Member State to fulfil obligations – Regulation (EC) No 648/2004 – Article 18 – Market for detergents and for surfactants for detergents – Sanctions

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 8)

2. Member States – Obligations – Failure to fulfil obligations – Justification (Art. 226 EC; European Parliament and Council Regulation No 648/2004, Arts 17(4), and 18) (see para. 10)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt or communicate within the prescribed period, dissuasive, effective and proportionate sanctions for infringements of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents (OJ 2004 L 104, p. 1).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, sanctions in accordance with Article 18 of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that article.
1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, the Kingdom of Sweden has failed to fulfil its obligations under that directive;
1.

Declares that by failing to adopt all the laws, regulations and administrative provisions necessary in order to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC and 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC or, in any event, by not communicating those measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
Judgment of the Court (Seventh Chamber) of 11 June 2009 – Commission v Sweden

(Case C‑546/08)

Failure of a Member State to fulfil obligations – Directive 2005/60/EC – Prevention of the use of the financial system for the purpose of money laundering and terrorist financing – Failure to transpose within the prescribed period

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 9)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, the Kingdom of Sweden has failed to fulfil its obligations under Article 45(1) of that directive;
1.

Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, the French Republic has failed to fulfil its obligations under Article 63 of that directive;
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Subject of the case

Operative part



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Actions for failure to fulfil obligations

–

Examination of the merits by the Court

–

Situation to be taken into consideration

–

Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 10

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to adopt or communicate within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (OJ 2003 L 1, p. 65).

Operative part

Operative part

The Court:

1. Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 15(1) of that directive;

2. Orders the Grand Duchy of Luxembourg to pay the costs.
Operative part



Operative part

On those grounds, the Court (Fifth Chamber) hereby:

1. Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC and, in any event, by failing to communicate to the Commission of the European Communities the provisions of national law considered to contribute to ensuring such compliance, Ireland has failed to fulfil its obligations under Article 53 of that directive.

2. Orders Ireland to pay the costs.
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Environment – Waste – Incineration – Directive 2000/76

(European Parliament and Council Directive 2000/76, Art. 3, para. 5)

Summary

A power plant which uses as an additional fuel, in substitution for fossil fuels used for the most part in its production activities, gas obtained in a gas plant following thermal treatment of waste is to be regarded, jointly with that gas plant, as a co-incineration plant within the meaning of Article 3(5) of Directive 2000/76 on the incineration of waste when the gas in question has not been purified within the gas plant.

When the process of generating energy or producing a product is realised and terminated only when the gaseous substances obtained from the thermal treatment of the waste in the gas plant are transferred to the power plant, the complex comprising the gas plant and the power plant must be regarded jointly for the purposes of applying Directive 2000/76, by reason of the technical and functional link which then exists between the two installations. In addition, that outcome is justified by the fact that the harmful substances produced by the thermal treatment, commenced in the gas plant, to which the waste has been subjected are released and are discharged, at least in part, only when the crude gas has been transferred to the power plant.

(see paras 29, 31, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Member States’ right to apply a reduced rate to certain supplies of goods and services

(Council Directive 2006/112, Arts 96 and 98(1) and (2), and Annex III)

Summary

A Member State which makes the transportation of a body by vehicle subject to a reduced value added tax rate, which differs from the rate applicable to other supplies which may be made by undertakers, does not fail to fulfil its obligations under Articles 96 and 98(1) and (2) of Directive 2006/112 on the common system of value added tax.

When a Member State decides to make use of the opportunity given by Article 98(1) and (2) of Directive 2006/112 of applying a reduced rate of value added tax to a category of supply in Annex III to that directive, it may, subject to the requirement to observe the principle of fiscal neutrality inherent in the common system of value added tax, limit the application of that reduced rate to concrete and specific aspects of that category. Making use of that opportunity is subject to a twofold condition: first, it may isolate, for the purposes of the application of the reduced rate, only concrete and specific aspects of the category of supply at issue and, secondly, it must observe the principle of fiscal neutrality. Those conditions are intended to ensure that the Member States make use of that opportunity only on conditions ensuring the correct and straightforward application of the reduced rate chosen and the prevention of any possible evasion, avoidance or abuse. Since, first, the transportation of a body by vehicle constitutes a concrete and specific element in the supply of services by undertakers and since, second, similar supplies involving transportation of a body by vehicle, which may be in competition with those subject to a reduced rate, are not treated differently for value added tax purposes, legislation making the transportation of a body by vehicle subject to a reduced rate of value added tax fulfils the conditions required by Directive 2006/112.

(see paras 28, 30, 39, 42, 46)
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Common Customs Tariff – Value for customs purposes – Transaction value – Determination

(Council Regulation No 2913/92, Art. 33)

Summary

The condition specified in Article 33 of Regulation No 2913/92 establishing the Community Customs Code, to the effect that import duties must be ‘shown separately’ from the price actually paid or payable for the imported goods, is satisfied in the case where the parties to the contract have agreed that those goods are to be delivered DDP (‘Delivered Duty Paid’) and have incorporated that information in the customs declaration but, by reason of a mistake as to the preferential origin of those goods, have failed to state the amount of the import duties.

First, even if the parties to the contract wrongly assumed that no import duty would be owed, the agreement between the seller and the buyer must be interpreted as meaning that, in accordance with the DDP clause, the custom duties are to be borne by the seller and that, consequently, the import duties which may be payable are included in the price actually paid or payable for the imported goods. Second, pursuant in particular to Articles 217 and 220 of the Customs Code, it is the authorities of the State of importation that are responsible for the calculation of import duties. Where the transaction value is correctly stated in the import declarations and the rate of customs duty applicable can be determined in the light of the origin of the goods, those authorities are in a position to calculate the amount of import duties legally owed and, consequently, to separate the value of those duties from the price actually paid or payable for the imported goods.

(see paras 30, 34-36, 40, operative part)
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Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity of the marks concerned – Criteria for assessment – Composite mark

(Council Regulation No 40/94, Art. 8(1)(b))

Summary

Although it is possible that, in a part of the European Union, surnames may have, as a general rule, a more distinctive character than forenames, it is nevertheless appropriate, in assessing the conceptual similarity of the marks at issue, to take account of factors specific to the case and, in particular, of the fact that the surname concerned is unusual or, on the contrary, very common, which is likely to have an effect on that distinctive character. Account must also be taken of whether the person who requests that his first name and surname, taken together, be registered as a trade mark is well known, for that factor may obviously influence the perception of the mark by the relevant public. Furthermore, it must be held that, in a composite mark, a surname does not retain an independent distinctive role in every case solely because it will be perceived as a surname. The finding with respect to such a role may be based only on an examination of all the relevant factors of each case.

(see paras 35-38)
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Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Assessment of distinctive character – Sign consisting of a single letter

(Council Regulation No 40/94, Arts 4 and 7(1)(b))

Summary

The requirement of an examination as to whether, on the facts, the sign in question is capable of distinguishing the goods or services designated from those of other undertakings, allows for the accommodation of the ground for refusal laid down in Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, with the general capacity of a sign to constitute a trade mark recognised in Article 4 thereof.

In that regard, even though it is apparent from the case‑law that the Court has recognised that there are certain categories of signs which are, prima facie, less likely to have distinctive character initially, the Court, nevertheless, has not exempted the trade mark authorities from having to carry out an examination of their distinctive character based on the facts.

In relation, more particularly, to a sign consisting of a single letter with no graphic modifications, registration of a sign as a trade mark is not subject to a finding of a specific level of linguistic or artistic creativity or imaginativeness on the part of the proprietor of the trade mark.

It follows that, particularly as it may prove more difficult to establish distinctiveness for marks consisting of a single letter than for other word marks, the Office for Harmonisation in the Internal Market (Trade Marks and Designs) is required to assess whether the sign at issue is capable of distinguishing the different goods and services in the context of an examination, based on the facts, focusing on those goods or services.

(see paras 36-39)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable transactions – Supply of services for consideration

(Council Directive 77/388, Art. 2(1))

Summary

Article 2(1) 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 meaning that the provision of a retail voucher by a company, which acquired that voucher at a price including value added tax, to its employees in exchange for their giving up part of their cash remuneration constitutes a supply of services effected for consideration within the meaning of that provision.

In fact, there is a direct link between the provision of those vouchers to the employees and the part of the cash remuneration which the employees must give up as consideration for that provision since, instead of receiving all their remuneration in cash, those who have chosen to receive such vouchers must give up part of that remuneration in exchange for those vouchers, that transaction resulting in a specific deduction from the fund of an employee who made that choice. Moreover, the employer actually receives consideration, expressed in money, for the provision of the retail vouchers, since it corresponds to a fraction of the cash remuneration of its employees. In addition, the burden of the value added tax on the provision of those vouchers is borne by the employees who receive the vouchers, since the deduction from their remuneration to which that provision gives rise includes the price of the vouchers and all the value added tax on them.

(see paras 29-32, 35, operative part)
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Social security for migrant workers – Family allowances – Community rules for prevention of overlapping benefits

(Council Regulations No 1408/71, Arts 73 and 76, and No 574/72, Art. 10)

Summary

On a proper interpretation of Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72, as amended by Regulation No 647/2005, a right, which is not subject to conditions of insurance, employment or self-employment, to benefits under the legislation of a Member State in which one parent resides with the children in favour of which those benefits are granted cannot be partially suspended in a situation in which the former spouse, who is the other parent of the children concerned, would in principle be entitled to family benefits under the legislation of the State in which he is employed, either simply by virtue of the national legislation of that State, or in application of Article 73 of Regulation No 1408/71, but does not actually draw those benefits because he has not made an application for them.

For it to be possible to regard family benefits as being due under the legislation of a Member State, the law of that State must recognise the right to the payment of benefits in favour of the member of the family who works in that State. It is thus necessary for the person concerned to fulfil all the conditions, as to both form and substance, imposed by the internal legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits.

(see paras 53, 59, operative part)