ddrg/super_eurlex huggingface dataset:
Case C-308/01

GIL Insurance Ltd and Others

v

Commissioners of Customs & Excise

(Reference for a preliminary ruling from the VAT and Duties Tribunal, London)

(Sixth VAT Directive – Tax on insurance premiums – Higher rate applicable to certain insurance contracts – Insurance connected with the rental or sale of domestic appliances – State aid)

Summary of the Judgment

1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Prohibition of the levying of other national charges which can be characterised as turnover taxes – Definition of turnover tax – Scope – Tax on insurance premiums – Excluded – Introduction of a rate identical to that of value added tax – Whether permitted with regard to the exemption of insurance transactions – No obligation to follow the procedure for the introduction of special derogating measures

(Council Directive 77/388, Arts 13(B)(a), 27 and 33)

2. State aid – Definition – Selectivity of the measure – System of differentiated taxation on insurance premiums – Justification because of the nature and general scheme of the system established

(Art. 87(1) EC)

1. A tax on insurance premiums is compatible with Article 33 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, which prohibits the Member States from introducing or maintaining taxes, duties or charges in the nature of turnover taxes, in so far as it is not a general tax, since it is not intended to attach to all economic transactions in the Member State concerned but applies only to a specific service, the supply of insurance; is not levied at each stage of the production and distribution process, since it is charged once only, on conclusion of the insurance contract; and does not apply to the added value of the goods and services.

Since it is compatible with Article 33 of the Sixth Directive, Article 13(B)(a) of that directive, under which insurance transactions are exempt from value added tax, does not preclude, in the case of that tax on insurance premiums, the introduction of a special rate which is identical to the standard rate of value added tax. Consequently, the procedure provided for in Article 27 of the directive, which obliges any Member State wishing to introduce special measures for derogation from that directive to seek prior authorisation from the Council, does not have to be complied with before the introduction of that rate.

(see paras 31, 35-37, 47, operative part 1-2)

2. A system of taxation of insurance premiums characterised by the existence of two different rates cannot be regarded as constituting State aid within the meaning of Article 87(1) EC where the application of the higher rate in that system to a specific part of the insurance contracts previously subject to the standard rate is justified by the nature and the general scheme of the national system of taxation of insurance, even if the introduction of the higher rate involves an advantage for operators offering contracts subject to the standard rate.

(see para. 78)
Case C-272/01

Commission of the European Communities

v

Portuguese Republic

(Failure of a Member State to fulfil obligations – Directive 76/160/EEC – Quality of bathing water – Failure to conform to limit values – Failure to identify all inland bathing areas in Portugal – Failure to collect a sufficient number of samples)

Summary of the Judgment

Approximation of laws – Quality of bathing water – Directive 76/160 – Implementation by Member States – Obligation to achieve a particular result

(Council Directive 76/160, Art. 4(1))

Article 4(1) of Directive 76/160 concerning the quality of bathing water requires Member States to ensure that certain results are achieved, inasmuch as the quality of bathing water must conform to the mandatory values laid down in the directive. Apart from the derogations provided for, the directive does not allow Member States to rely on particular circumstances to justify a failure to fulfil that obligation

(see para. 34)
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1. Approximation of laws — Electrical equipment designed for use within certain voltage limits Directive 73/23 — Electromagnetic compatibility — Directive 89/336 — Radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity — Directive 1999/5 — Complete harmonisation — National provisions making the placing on the market of alarm systems and networks, despite their conformity with the directive, subject to a prior approval procedure — Not permissible — (Directive of the European Parliament and of the Council 1999/5, Arts 6 and 8; Council Directives 73/23, Art. 3, and 89/336, Art. 5)

2. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National legislation imposing additional controls on goods lawfully manufactured and marketed in another Member State — Justification — Conditions and limits — (Arts 28 EC and 30 EC)

Summary

1. It is clear from the wording and the objective of Directive 73/23 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits, of Directive 89/336 on the approximation of the laws of the Member States relating to electromagnetic compatibility, and of Directive 1999/5 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, that they each pursue complete harmonisation in their respective fields of application. It follows that, in the fields covered by those directives, the Member States must conform to them in their entirety and cannot maintain national provisions to the contrary.

Thus Article 3 of Directive 73/23, Article 5 of Directive 89/336 and Articles 6 and 8 of Directive 1999/5 preclude national provisions which make subject to a prior approval procedure the placing on the market of alarm systems and networks, in particular those using radio transmission, which satisfy the requirements of those directives and which bear the appropriate CE marking.

see paras 44-45, 60, operative part 1-2

2. Articles 28 EC and 30 EC must be interpreted as meaning that, even in the absence of harmonising Community measures, products lawfully produced and marketed in one Member State must be able to be marketed in another Member State without being subject to additional controls. In order to be justified, national legislation imposing such controls must be covered by one of the exceptions provided for in Article 30 EC or one of the overriding requirements recognised by the case-law of the Court and, in either case, must be appropriate for securing the attainment of that objective and not go beyond what is necessary in order to attain it. It is for the Member State which claims to have a reason justifying a restriction on the free movement of goods to demonstrate specifically the existence of a reason relating to the public interest, the necessity for the restriction in question and that the restriction is proportionate in relation to the objective pursued.

see paras 65, 69, operative part 3-4
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Approximation of laws — Copyright and related rights — Rental right and lending right for protected works — Directive 92/100 — Remuneration of authors in the event of public lending — Possibility for Member States to exempt certain categories of establishments — Scope — (Council Directive 92/100, Art. 5(3))

Summary

Article 5(3) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, under which Member States may exempt certain categories of establishments from the payment of the remuneration for public lending provided for in paragraphs 1 and 2 of that article, authorises but does not oblige a Member State to exempt certain categories of establishments. Consequently, if the circumstances prevailing in a Member State do not enable a valid distinction to be drawn between categories of establishments, that Member State must, in order to transpose the directive correctly, impose the obligation to pay the remuneration in question on all the establishments concerned.

see para. 20
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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 by the reasoned opinion — (Art. 226 EC)

2. Actions for failure to fulfil obligations — Commission ' s right of action — Right exercised at the Commission ' s discretion — (Art. 226 EC)

3. Member States — Obligations — Implementation of directives — Failure to fulfil obligations — National system pleaded as justification — Not permissible — (Art. 226 EC)

Summary

1. In an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion.

see para. 15

2. Under the system laid down by Article 226 EC, the fact that a measure implementing a directive will be adopted shortly is irrelevant and cannot deprive the Commission of all legal interest in bringing an action for failure to fulfil obligations since the Commission decides in the exercise of its discretion whether or not it is appropriate to bring such an action.

see para. 17

3. A Member State may not rely on provisions, practices or circumstances in its internal legal order to justify failure to comply with the obligations and time-limits laid down by a directive.

see para. 18
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1. Common commercial policy — Measures designed to prevent the marketing of counterfeit and pirated goods — Regulation No 3295/94 — Scope — Goods in external transit — Included — (Council Regulation No 3295/94, Arts. 2 and 11)

2. Acts of the institutions — Regulations — Implementation by the Member States — Duty to interpret national law so as to be compatible with Community law — Limits — Principle of non-retroactivity of criminal offences and penalties

Summary

1. Article 11 of Regulation No 3295/94 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights, as amended by Regulation No 241/1999, requires Member States to introduce penalties for infringements of the prohibition laid down in Article 2 of the regulation on the release for free circulation, export, re-export and placing under a suspensive procedure of counterfeit goods. Those provisions are applicable to situations in which goods in transit between two countries not belonging to the European Community are temporarily detained in a Member State by the customs authorities of that State.

see paras 55, 64, operative part 1

2. The duty to interpret national law so as to be compatible with Community law, in the light of its wording and purpose, in order to attain the aim pursued by the latter, cannot, of itself and independently of a law adopted by a Member State, have the effect of determining or aggravating the liability in criminal law of an entity which has failed to meet the requirements of a Community regulation.

That obligation finds its limits in the general principles of law which form part of the Community legal system and, in particular, in the principles of legal certainty and non-retroactivity. In particular, the principle of non-retroactivity of penalties, enshrined in Article 7 of the European Convention for the Protection of Human Rights and constituting a general principle of Community law common to the constitutional traditions of the Member States, prohibits the imposition of criminal penalties for conduct which is not prohibited by a national rule, even if the national rule is contrary to Community law.

see paras 61, 63-64, operative part 2
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1. Approximation of laws — Nutrition labelling of foodstuffs — Directive 90/496 — Reference date for determining the value of a nutrient — End of minimum conservation period — Whether permissible — Determination of permissible differences between the declared value and the value established in the course of an official check — Competence of the Member States — (Council Directive 90/496, Arts 1(4)(k) and 6(8))

2. Approximation of laws — Nutrition labelling of foodstuffs — Directive 90/496 — Breach of the principles of legal certainty and proportionality — None — (Council Directive 90/496, Arts 1(4)(k) and 6(8))

Summary

1. Articles 1(4)(k) and 6(8) of Directive 90/496 on nutrition labelling for foodstuffs must be interpreted as meaning that, first, the value of a nutrient such as vitamin C which is indicated on a foodstuff following an analysis of the foodstuff carried out by the manufacturer may correspond to the value of that nutrient in the foodstuff in question at the end of its minimum conservation period and, second, that the determination of the permissible differences between the value stated and the value established in the course of an official check is, in the present state of Community law, within the competence of the Member States.

see para. 41, operative part 1

2. The validity of Directive 90/496 on nutrition labelling for foodstuffs is not called into question by the fact that Articles 1(4)(k) and 6(8) of that directive do not contain precise indications either on the reference date to be taken into consideration for determining the average value of a nutrient contained in a foodstuff or on the extent of the differences tolerated between the declared value and the value established in the course of an official check.

First, far from disregarding the principle of legal certainty, the Community legislature, in accordance with the third paragraph of Article 249 EC, fixed the result to be achieved, namely enabling consumers to choose an appropriate diet inter alia by stating average values which best represent the value of the nutrients in question and take various factors into account, while leaving to the national authorities the choice of form and measures to achieve that result. Second, by thus giving the national authorities a discretion as to the definition both of the reference date for calculating the average value and of the differences tolerated between the declared value and that actually established in the course of an official check, Articles 1(4)(k) and 6(8) of the directive do not contain inappropriate or disproportionate restrictions on the activity of manufacturers of foodstuffs.

see paras 47-49, operative part 2
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Freedom of movement for persons – Freedom of establishment – Tax legislation – Taxation of unrealised capital gains where tax residence transferred to another Member State – Not permissible – Justification – None

(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC))

Summary

The principle of freedom of establishment laid down by Article 52 of the Treaty (now, after amendment, Article 43 EC) must be interpreted as precluding a Member State from establishing, in order to prevent a risk of tax avoidance, a mechanism for taxing latent, i.e. not yet realised, increases in value of company shares, where a taxpayer transfers his tax residence outside that State.

A taxpayer wishing to transfer his tax residence in exercise of the right guaranteed to him by that provision is subjected to disadvantageous treatment in comparison with a person who maintains his residence in that State where he becomes liable, simply by reason of such a transfer, to tax on income which has not yet been realised and which he therefore does not have, whereas, if he remained in that State, increases in value would become taxable only when, and to the extent that, they were actually realised.

That difference in treatment cannot be justified by the aim of preventing tax avoidance, since tax avoidance or evasion cannot be inferred generally from the fact that the tax residence of a physical person has been transferred to another Member State.

(see paras 38, 46, 50-51, 58, 69, operative part)
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Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National legislation making the marketing of food products for sportsmen and women subject to authorisation — Not permissible — Justification — Protection of public health — Consumer protection — Inability to demonstrate the necessity and proportionality of the said measure — (Arts 28 EC and 30 EC)

Summary

A Member State which maintains in force legislation which subjects the marketing of food products for sportsmen and women lawfully manufactured and marketed in other Member States to a requirement of applying for prior authorisation and of initiating a procedure for that purpose without having shown that it is necessary and proportionate fails to fulfil its obligations under Articles 28 EC and 30 EC.

It is for the competent national authorities to show that their rules are necessary in order to attain one or more objectives mentioned in Article 30 EC, such as the protection of health and life of humans, or to meet imperative requirements relating, inter alia, to consumer protection and, where appropriate, that the marketing of the products in question poses a serious risk to public health and that those rules are in conformity with the principle of proportionality.

see paras 21-22, 26, operative part
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Civil-law partnership founded for the sole purpose of setting up a capital company – Transfer of the totality of its assets to that capital company once founded – Member State not regarding such a transfer as a supply of goods – Right to deduct

(Council Directive 77/388, Arts 5(8), 6(5) and 17(2))

Summary

A partnership established for the sole purpose of founding a capital company is entitled to deduct the input tax paid on supplies of goods and services where its only output transaction in the performance of its object was to effect by formal act the transfer for consideration of the supplies obtained to that capital company once founded and where, because the Member State concerned has exercised the options provided for in Articles 5(8) and 6(5) 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, a transfer of a totality of assets is not deemed to be a supply of goods or services.

Even if that partnership does not intend to effect itself taxable operations, its sole object being to prepare the activities of the capital company, the tax which it wishes to deduct relates none the less to supplies acquired for the purpose of effecting taxable transactions, even though those transactions are only the planned transactions of the capital company.

(see paras 41, 43, operative part)
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Agriculture – Common agricultural policy – Integrated administration and control system for certain aid schemes – ‘Livestock’ aid – Irregularity giving rise to a penalty under Regulation No 3887/92 – Regulation No 2419/2001 introducing less severe administrative penalties – Retroactive application required under Regulation No 2988/95

(Council Regulation No 2988/95, Art. 2(2); Commission Regulation No 3887/92, Art. 10(2)(a); Commission Regulation No 2419/2001, Art. 44(1))

Summary

Article 2(2) of Regulation No 2988/95 on the protection of the financial interests of the European Communities is to be interpreted as meaning that where, in an application for ‘livestock’ aid covered ratione temporis by Regulation No 3887/92 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes, there is an irregularity giving rise to a penalty under Article 10(2)(a) of that regulation, the competent authorities must apply retroactively the provisions of Article 44(1) of Regulation No 2419/2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation No 3508/92 on the ground that those provisions of Regulation No 2419/2001 are less severe as regards the conduct in question.

(see para. 61, operative part)
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Approximation of laws – Trade marks – Directive 89/104 – Grounds for revocation of a trade mark – Trade mark which has become the common name in the trade – Scope of term ‘in the trade’ – Relevant circles

(Council Directive 89/104, Art. 12( 2)(a))

Summary

Article 12(2)(a) of the First Directive 89/104 relating to trade marks, which provides that the proprietor of a trade mark may have its rights revoked if the mark has become the common name in the trade for a product or service in respect of which it is registered, should be interpreted as meaning that, in cases where intermediaries participate in the distribution to the consumer or the end user of a product which is the subject of a registered trade mark, the relevant classes of persons whose views fall to be taken into account in determining whether that trade mark has become the common name in the trade for the product in question comprise all consumers and end users and, depending on the features of the market concerned, all those in the trade who deal with that product commercially.

(see para. 26, operative part)
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Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct insurance other than life assurance – Directive 92/49 – Freedom to set rates – Bonus-malus system not resulting in the direct setting of premium rates by the State – Permissible

(Council Directive 92/49)

Summary

A bonus-malus system applicable to motor insurance contracts which, while having effects on changes in the amount of premiums, does not, however, result in the direct setting of premium rates by the State since insurance undertakings remain free to set the amount of the basic premium cannot be equated with a system of approving premium rates that is contrary to the principle of freedom to set rates laid down by Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357.

Full harmonisation in the field of non-life insurance rates precluding any national measure liable to have effects on rates cannot be presumed in the absence of a clearly expressed intention to this effect on the part of the Community legislature.

(see paras 24-25)