ddrg/super_eurlex huggingface dataset:
9.

The tax authorities' view that the transfer of profits was liable to capital duty as a contribution by the partners would be tenable only if the shares were seen as belonging to the partners' private estate for capital duty purposes. However, it appears from the file, and from the plaintiff's reply to questions put at the hearing, that the shares are on the contrary treated as assets of the partnership. They are included in its accounts, and the profits of the limited company accrue to the partnership as a whole. It seems to me that to regard the shares as assets of the partnership for corporate or income tax purposes, but as private assets of the partners for capital duty purposes, would lead to anomalous results. It would be impossible for profits arising within the limited company to be distributed without being subject to capital duty. That would run counter to the very nature of capital duty, which is not a tax on profits earned or distributed but a tax on the raising of capital. Such an analysis would also involve a misunderstanding of the structure which has been created by the Organschaft agreement, which may be compared to the relationship of holding company and subsidiary. If the Webers had created another limited company to act as the parent company of the Organschaft and had transferred their shares in the first limited company to the parent company in return for shares in the latter, any subsequent transfer of profits under the Organschaft agreement would simply have been a distribution of profits by a subsidiary to its shareholder. Similarly, in the present case, Mr and Mrs Weber contributed their rights in the shares to the assets of the partnership, which acts as a conduit for the distribution of profits, subject to any profits retained within the partnership. Any analysis which treats the transfer of profits from the limited company at the end of each accounting period as an investment of capital by the partners in the partnership would lead to the manifestly absurd result of capital duty being imposed on the entire trading profits of the limited company, even those which are ultimately distributed by the Organschaft to the partners.
18.

On the basis of that article, the Council adopted Regulation No 1408/71, whose preamble contains the following recitals: ‘Whereas the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the Regulton applies to all nationals of Member States ( 5 ) insured under social security schemes for employed persons; Whereas the provisions for coordination of national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member States and should, to this end, contribute towards the improvement of their standard of living and conditions of employment, by guaranteeing within the Community firstly equality of treatment for all nationals of Member States under the various national legislations and secondly social security benefits for workers and their dependants regardless of their place of employment or of residence.’
7.

On the other hand the Commission now takes the view, contrary to that expressed in the aforesaid correspondence, that the regulation must be applied in accordance with its wording. In support of its view it outlines the background to this problem of interpretation. At the time of the investigation which preceded the adoption of Regulation No 2516/86 it had established that there were three groups of traders in Japan. A first category produced and exported bearing units themselves; they were therefore producers and exporters. A second group produced the housings themselves but purchased the bearings from other producers so as to sell them and export them subsequently under their own mark (Nachi and Koyo); consequently they were not producers but exporters within the meaning of the antidumping legislation. For that group an individual antidumping rate was therefore prescribed as indicated in Recital 14 to Regulation No 2516/86. The third category was that of the ‘pure’ business houses whose operations consisted entirely in purchasing products from the most varied producers in order to resell them under their original trademark. For that third group, according to the Commission, it was impossible to lay down an individual antidumping rate. It did not seem possible to grant them a special status as exporters for the application of the antidumping duty, either because they were so closely linked to the producers that in fact they were simply a sales office or — in so far as they were independent — they did not, to the Commission's knowledge, export to the Community at the time of the investigation. Gloria and Ehara stated in their answers to the Commission's questionnaire that they did not export to the Community but to Switzerland. Finally this group was not granted the status of exporter because the large number of products sold by them made it practically impossible to lay down individual antidumping rates. As a result there were countless opportunities for infringement. The Commission adds that in view of the specific importance of this third category of traders, it subsequendy decided to insert in the antidumping regulations an express exception to the residual rate to the effect that the individual rate is applicable when it is possible to produce proof of the origin of the products and where there is an individual duty for the producers. ( 6 )
61.

The same applies in so far as the Commission, as the applicant made clear at the hearing, ought to have suspended the payments in order to induce the ONPF to consent to direct payment by the Commission to the applicant. In the absence of evidence that the Commission's payments related specifically to the works carried out by the applicant, it could not have been ruled out that, in the event of such consent, the claims of other creditors would be left unsatisfied instead of those of the applicant. There is no way of knowing whether the ONPF would have agreed to this. Thus even the causal link between the Commission's conduct and the damage sustained by the applicant is not proven. Furthermore, I have grave doubts as to the lawfulness of the course of action which the applicant considers the Commission ought to have taken. Admittedly, Article XIII of Annex 3 of the financing agreement provides that the Commission should take all suitable measures to ensure that payment orders made out to persons awarded EDF-funded contracts are executed as quickly as possible. It might indeed be asked whether this clause, which gives the undertakings awarded contracts an advantage because their interest in prompt payment coincides with the Community's interest in the most effective use of its funds and the ACP State's interest in the rapid discharge of its obligations, can also apply in favour of a subcontractor where the principal contract was awarded to a State-controlled undertaking. However, this effect can arise only as a repercussion of the protection given to the financial interests of the Community and the interests of the ACP State: the latter — and not the contractors — is the recipient of the Community's payments (see Article 7 of the financing agreement) and it is responsible for the execution of the financed projects (Article 55 of the First Lomé Convention). In this respect it should be observed that if the Commission had taken the step that the applicant considers it ought to have taken, it would have interfered in the distribution between the subcontractors of the ONPF of the risk engendered by the alleged irregularities — without any discernable advantage for the correct use of the said funds or for the financial situation of Burkina Faso or that of the ONPF. ( 36 )
61.

The Court did not consider that the United Kingdom measures were proportionate to the requirement of protecting public health and it ruled as follows: ‘Under those circumstances, the United Kingdom, in its concern to protect the health of humans, could ensure safeguards equivalent to those which it has prescribed for its domestic production of UHT milk, without having recourse to the measures adopted, which amount to a total prohibition on imports. ( 57 ) To that end, the United Kingdom would be entitled to lay down the objective conditions which it considers ought to be observed as regards the quality of the milk before treatment ... The United Kingdom could also stipulate that imported UHT milk must satisfy the requirements thus laid down, whilst however taking care not to go beyond that which is strictly necessary for the protection of the health of the consumer. It would be able to ensure that such requirements are satisfied by requesting importers to produce certificates issued for the purpose by the competent authorities of the exporting Member States. ( 58 ) That necessary cooperation does not, however, preclude the United Kingdom authorities from carrying out controls by means of samples to ensure observance of the standards which it has laid down, or from preventing the entry of consignments found not to conform with those standards.’ ( 59 )
10.

As is apparent from the report of 4 May 1990 from the Oldenburg Principal Customs Office (annexed to Chapter IV of the Commission's defence), in the cases objected to by the Commission the export procedure was not carried out with the requisite diligence. And indeed, as far as the export declarations accepted on 30 March 1988 are concerned, it appears that the five control copies at issue were not drawn up until the day after the vessel had sailed and that the goods had not undergone any check as to quantity and specifications. Moreover, in the report it is merely assumed that the prescribed declaration was made before commencement of the loading operations. Similarly, in the case of the export declarations of 25 January 1988, it is clear, again from the abovementioned report, that although the vessel Tenoch left the port of Nordenham on 2 January 1988, the control copy was not registered and issued until 25 January 1988; furthermore, the official responsible for customs clearance did not inspect the goods exported and the principal customs office merely assumed, in that case too, that a declaration had been made orally or by telephone in due time for the purpose of complying with the customs formalities. Finally, it seems that a partial shipment of flour and a shipment of rye, although not transshipped for weighing, were entered on a weighing certificate by a member of the auxiliary customs staff.
16.

Furthermore, the exclusion of ‘Knochendunnung’ reflects, in my opinion, the purpose of the regulations in question. In accordance with the Court's judgment in Ekro, the objective of those regulations is to ‘prevent the payment of refunds on low-value cuts of meat, for which there is sufficient demand in the Community meat-processing industry’ (above, at paragraph 12). On this subject, GruSa maintains that ‘Knochendunnung’, a cut of beef or veal taken from the ninth to the thirteenth ribs, is of the same quality as that taken from the first to the eighth ribs, which are eligible for the refund. It turns out that: ‘The cut of a bovine carcase taken from the ninth to the thirteenth ribs is in all respects of equal value to that taken from the first to the eighth ribs’. ( 12 ) In my opinion, the value of ‘Knochendunnung’ falls to be inferred only from the price paid for that cut on the world market. This is confirmed by Article 18, cited above, of the basic Regulation (EEC) No 805/68, which introduces refunds for certain products ‘[t] o the extent necessary to enable [those] products ... to be exported on the basis of quotations or prices for those products on the world market’. The cuts of beef or veal which correspond entirely or partially to the German ‘Knochendunnung’ are sold on the world market at prices several times lower than those of other cuts and particularly the cut taken from the first to the eighth ribs. This emerges very clearly from the Annex to Regulation (EEC) No 1354/92, ( 13 ) annexed by the Commission to its reply to a question from the Court, as well as from similar annexes to the regulations applicable at the material time. ( 14 )‘Knochendunnung’ therefore seems not to be ‘in all respects of equal value’ to the cut taken from the first to the eighth ribs, indeed quite the contrary. ( 15 )
11.

In evaluating the Parliament's argument, the Court of Justice cannot examine matters of fact; it may merely check whether the Court of First Instance actually failed to take account of the legal principle whereby procedural irregularities may be cured by subsequent action. I do not think that it did. Let us consider, first, the reference in paragraph 77 of the judgment to the earlier finding of the Court of First Instance to the effect that Mrs X's knowledge did not meet the conditions for appointment laid down in the vacancy notice (the finding against which the first plea in law, already disposed of above, was directed). I do not see how that defect could have been rectified in the subsequent stages of the procedure. Moreover, it was on the basis of that lack of the ‘requisite objectivity and exactitude’ that the Court of First Instance concluded that the appointing authority had no alternative but to reject Mrs X's candidature (paragraph 75). It seems to me necessarily to follow from that finding that the comparative examination of the candidates' merits could no longer be carried out correctly. For good measure, in paragraph 79 the Court of First Instance added: ‘The Court considers that such a lack of objectivity and exactitude cannot be compensated for, as contended by the Parliament, either by the fact that the file sent to the President contained a table on which the Secretary General of the Parliament had jotted a correct evaluation of the staff reports — but without correcting the one from Mrs De Enterria — or by the fact that the opinion prepared by the Parliament's Legal Department for the purpose of dealing with the applicant's complaint noted, parenthetically on page 13, the error made by Mrs De Enterria in that respect’. That shows with sufficient clarity that the Court of First Instance actually considered whether the irregularities found by it had been rectified at later stages of the procedure, to the extent to which such rectification was still possible. It therefore seems to me that the second ground of appeal also fails in law.
1.

Under the Belgian Royal Decree of 6 June 1960 on the manufacture, preparation and wholesale distribution of medicinal products and the dispensing thereof, ( 1 ) importation into Belgium from other Member States of sterile medical supplies which are covered by that decree is subject to the issue of a prior authorization. That condition is laid down in the interests of public health. Furthermore, the said imported products are subject to analyses and tests which must be carried out in Belgium. That requirement applies even when identical tests and analyses have been carried out in another Member State and when their results may be made available to the Belgian authorities as part of the prior authorization procedure. The Commission considered that in that case the application of the second condition constituted an infringement of Belgium's obligations under Article 30 and 36 of the EEC Treaty and brought these proceedings. The Commission claims that the Court should declare that, ‘by bringing into force Articles 15(2) and 53 of the Royal Decree of 6 June 1960 subjecting sterile medical supplies covered by that decree and imported from other Member States to duplicated laboratory tests or analyses, even when those same analyses and tests have been carried out in another Member State and when the results thereof may be made available to them, in particular as part of the prior authorization procedure, the Kingdom of Belgium has failed to fulfil its obligations under Articles 30 and 36 of the EEC Treaty’.
39.

The Court ruled that ‘With regard to the importers of such products (the decision) is therefore a measure of general application covering situations which are determined objectively and it entails legal effects for categories of persons envisaged in a general and abstract manner’. ( 24 ) ‘That conclusion is not invalidated by the fact that the applicant, according to its statement which was not disputed by the Commission, is the only trader-importer established in the Benelux States regularly importing into the Netherlands brushes originating in the People's Republic of China and that it was one of its imports which led to the adoption of the contested decision. As the Court stated in its judgment of 6 October 1982 in Case 307/81 Alumisse [1982] ECR 3463, a measure docs not cease to be a regulation because it is possible to determine the number or even the identity of the persons to whom it applies at any given time as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in relation to its purpose’. ( 25 )
3.

The Irish Government has not disputed its obligation to introduce the laws, regulations and administrative provisions needed to implement the directives. It has therefore not disputed that it has acted contrary to Community law, inasmuch as the Court has consistently held that mere administrative practices, which by their very nature arc alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty. ( 5 )
50.

As already noted (at paragraph 39), I do not consider it necessary or appropriate to make a distinction between immovable property and other categories of assets or between different assets according to whether they lend themselves to a geographical division of business use and private use. Immovable property is not the only category of asset which may be ill suited to the Lennartz method. Moreover, there seems to be no reason why a taxable person should not be able to apply to any category of goods the simpler method of excluding goods partly from the business; it is for him to weigh up the advantages and disadvantages taking account of the nature of the asset and his intended use. A division into private and business portions can readily be made on the basis of the proportions of business and private use in the year of acquisition. Allocation to private use on the basis of a fixed geographical division of the property may moreover lead to double taxation. Suppose; for example, that a hotelier purchased a hotel comprising a main building and an annex. Initially the hotelier occupies privately three rooms in the main building. Subsequently, alterations are carried out to the main building and for a year he moves his private dwelling to the annex. He then returns to another part of the main building after completion of the- alterations. Under a geographical division the three rooms initially occupied would enter definitively into private use and additional charges for private use (or, under the German system, adjustment of deductions) would arise in respect of the new accommodation. In other words, he would have borne tax definitively on rooms he no longer occupies. It is clear therefore that only an apportionment based on the percentage of private use can achieve a rational result. Such an apportionment could be applied equally to other categories of assets such as motor cars or computers since it is based on the use to which the asset is put.
23.

That argument by the appellant cannot be accepted. The two letters sent by the Head of UCLAF and Commissioner Schmidhuber merely informed the Italian authorities of the results of an investigation carried out jointly by Community officials and the Italian civil service into possible irregularities in the grant of aid to Nutral and requested them in addition to take the necessary steps to recover the sums unduly paid to that company. As the Commission points out in its reply, the Italian State is not obliged itself to adopt the Commission's conclusions, nor to take the steps proposed by it, because the implementation within its territory of the Community rules on agriculture falls in principle within its area of competence. Consequently, the reports and the decree-injunction constitute autonomous acts under Italian national law and are not measures for the implementation of acts of the Commission. Nevertheless, the Italian authorities are clearly free to decide whether or not to take into account the information and suggestions received from the Commission. The Italian State could have requested Nutral to repay the aid unduly granted without the need for any intervention by the Commission; nor does the existence of acts of the Commission of the lund contested in this case oblige the Italian authorities to take action against Nutral. If the acts of the Commission are not binding on Italy, then they cannot, a fortiori, affect Nutral's legal position.
14.

Secondly, to conclude that measures which regulate specific situations do not have to be notified because of the form they take would in my view defeat the object of Article 6(6). The purpose of the notification procedure laid down becomes apparent on examination of the aim of the Directive itself. As stated in the first and second recitals of the preamble, the approximation of the laws, regulations and administrative provisions of the Member States on the labelling, presentation and advertising of foodstuffs contributes to the free movement of those products and to the harmonization of the conditions of competition. However, the eighth recital of the preamble makes clear that the Directive does not aim to lay down rules on ‘the compulsory indications of all the indications which must be added to the hst applying in principle to the whole range of foodstuffs’ and expressly states that in a second stage supplementary Community rules will be adopted. Likewise, the fourth recital states that rules of a specific nature which apply only to particular foodstuffs should be laid down by the Community. The ninth recital and Article 6(6) itself expressly envisage that Member States may adopt measures in the absence of these specific Community rules. The Court has held that the Directive represents only the initial stage of a harmonization process which is designed progressively to eliminate all obstacles to the free movement of foodstuffs resulting from the differences which exist between the laws, regulations and administrative provisions of the Member States with respect to the labelling of those products. ( 4 ) The premise of the Directive is that divergent national rules on labelling may hinder the free movement of the products and distort conditions of competition. Therefore, if the Directive expressly allows Member States to take measures in the absence of detailed Community rules, the corollary is that there must be a mechanism to prevent the reintroduction of obstacles to free movement and distortions of competition: that mechanism is the procedure laid down in Article 6(6) together with Article 16 of the Directive. Accordingly, I am of the opinion that a distinction between national measures which take a general form and national measures which take a specific or detailed form is not relevant. A specific and detailed measure adopted by a Member State may hinder intra-Community trade in a specific product just as much as a measure couched in more general terms.
((Differentiated export refunds – Force majeure – Additional security – Release of the security – Resolution of the UN Security Council))