ddrg/super_eurlex huggingface dataset:
Case C-339/00





Ireland

v

Commission of the European Communities





«(EAGGF – Clearance of accounts – Financial years 1997 and 1998 – Aid for afforestation of agricultural land – Article 2(1)(c) and (2)(b) of Regulation (EEC) No 2080/92 – Concept of a private-law legal person – Principle of the protection of legitimate expectations – Duty to cooperate in good faith)»

Opinion of Advocate General Tizzano delivered on 6 February 2003 I - 0000

Judgment of the Court (Fifth Chamber), 16 October 2003 I - 0000

Summary of the Judgment

1.. Agriculture – EAGGF – Clearance of accounts – Regulations Nos 729/70 and 1258/99 – Temporal scope – Commission decision disallowing certain expenditure adopted on the basis of a regulation since repealed – Lawful notwithstanding the absence of transitional provisions

(Council Regulations Nos 729/70 and 1258/99, Arts 16(1) and 20)

2.. Agriculture – Common agricultural policy – EAGGF financing – Aid intended to compensate for a loss of income from agriculture arising from afforestation – Only private persons eligible – Meaning of private-law legal person – Company wholly owned and controlled by the State – Excluded

(Council Regulation No 2080/92, Art. 2(2)(a) and (b))

3.. Member States – Obligations – Obligation to cooperate in good faith with the Community institutions – Reciprocity

(Art. 10 EC)

4.. Agriculture – Common agricultural policy – EAGGF financing – Principles – Commission's obligation to disallow irregular expenditure – Irregularities tolerated on grounds of fairness or remaining undetected in previous financial years – Right of the recipient of the aid to rely on that fact by virtue of the principle of the protection of legitimate expectations – None

1.

2.

3.

4.
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Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification on the ground of alleged lack of clarity in the Community legislation - Not permissible

(Art. 226 EC)
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Agriculture — EAGGF — Clearance of accounts — Late payment of the additional levy on milk — Financial adjustment pursuant to Article 5(2) of Regulation No 536/93 on the ground that default interest was not collected by a Member State — Not permissible — (Commission Regulation No 536/93, Arts 3(4) and 8(2))

Summary

Despite the fact that Article 3(4) of Regulation No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products makes purchasers liable to pay interest, as from 1 September of each year, to the competent body in case of late payment of the additional levy and that Article 5(2) of that regulation makes Member States responsible for deducting interest paid from the applications for reimbursement of expenditure on milk and milk products submitted to the EAGGF, the Commission may not rely on that provision in order to apply a financial adjustment on the ground of non-collection of that interest by a Member State. The fact that certain sums due remain unpaid, or were paid belatedly, does not of itself constitute failure to fulfil obligations imposed on the Member States by Community law.

see paras 51-55
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Procedure — Time-limits for bringing proceedings — Time-barred — Excusable error — Meaning — Scope

Summary

Full knowledge of the finality of a decision and of the time-limit for bringing an action under Article 230 EC does not, in itself, prevent an individual from pleading excusable error to justify his application being out of time since such an error may occur, in particular, when the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person. If those conditions are met, it cannot be ruled out in principle that the error may have a bearing on factors other than the finality or otherwise of the contested decision or the detailed rules and procedures for bringing the various types of action provided for in the Treaty.

see paras 24-25
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State aid — Definition — Logistical and commercial assistance provided by an undertaking entrusted with a service of general economic interest to its subsidiary — Not included — Conditions — Whether additional, variable costs are covered — Appropriate contribution to the fixed costs arising from use of the network set up by that undertaking — Adequate return on the capital investment used for the subsidiary's competitive activity — (EC Treaty, Art. 90(2) (now Art. 86(2) EC) and Art. 92(1) (now, after amendment, Art. 87(1) EC))

Summary

In the absence of any possibility of comparing the situation of an undertaking entrusted with a service of general economic interest within the meaning of Article 90(2) of the Treaty (now Article 86(2) EC), such as an undertaking operating as a legal monopoly in the ordinary mail sector whose network would never have been created by a private undertaking, with that of a private group of undertakings not operating in a reserved sector, the criterion, necessarily hypothetical, of "normal market conditions" , which makes it possible to ascertain whether the provision of logistical and commercial assistance by a public undertaking to its subsidiary, which is governed by private law, is capable of constituting State aid, must be assessed by reference to the objective and verifiable elements which are available.

The costs borne by that undertaking in respect of the provision of such assistance can constitute such objective and verifiable elements. On that basis, there is no question of State aid to the subsidiary if, first, it is established that the price charged properly covers all the additional, variable costs incurred by the provision of that assistance, an appropriate contribution to the fixed costs arising from use of the postal network and an adequate return on the capital investment in so far as it is used for the subsidiary's competitive activity and if, second, there is nothing to suggest that those elements have been underestimated or fixed in an arbitrary fashion.

see paras 34, 36, 38-40
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Approximation of laws — Review procedures relating to the award of public supply and public works contracts — Directive 89/665 — Member States under an obligation to provide for review procedures — Access to review procedures — Interest in obtaining the contract lost because no application to a conciliation commission was made first — Not permissible — (Council Directive 89/665, Art. 1(3))

Summary

The fact that Article 1(3) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, expressly allows Member States to determine the detailed rules according to which they must make the review procedures provided for by that directive available to any person having or having had an interest in obtaining a particular public contract and who has been or risks being harmed by an alleged infringement none the less does not authorise them to give the term "interest in obtaining a public contract" an interpretation which may limit the effectiveness of that directive.

That provision therefore precludes an undertaking which has participated in a public procurement procedure from being regarded as having lost its interest in obtaining that contract on the ground that, before bringing a review procedure under that directive, it failed to apply to a conciliation commission.

First, prior application to such a conciliation commission inevitably has the effect of delaying the introduction of the review procedures and, second, a mere conciliation commission has none of the powers which Directive 89/665 requires Member States to grant the bodies responsible for carrying out those review procedures, so that referral to it does not ensure the effective application of the Community directives on public procurement.

see paras 32-35, operative part
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1. Freedom of movement for persons — Derogations — Employment in the public service — Meaning — Master and chief mate of merchant navy ships — Inclusion — Conditions — ( Art. 39(4) EC)

2. Freedom of movement for persons — Derogations — Protection of public policy, public security and public health — General exclusion of nationals of other Member States from access to the posts of master and chief mate in the merchant navy — Not permissible — ( Art. 39(3) EC )

3. Member States — Obligations — Implementation of Community law — Condition of reciprocity — Not permissible

4. Freedom of movement for persons — Workers — Access of nationals of other Member States, subject to a condition of reciprocity, to the posts of master and chief mate in the merchant navy — Not permissible — ( Art. 39 EC)

Summary

1. Article 39(4) EC must be construed as allowing a Member State to reserve for its nationals the posts of master and chief mate of merchant ships flying its flag only if the rights under powers conferred by public law on masters and chief mates of such ships are in fact exercised on a regular basis and do not represent a very minor part of their activities.

The scope of that derogation from the freedom of movement for workers concerning employment in the public service must be limited to what is strictly necessary for safeguarding the general interests of the Member State concerned, which would not be imperilled if rights under powers conferred by public law were exercised only sporadically, even exceptionally, by nationals of other Member States.

see paras 44, 50, operative part 1

2. A general exclusion, by a Member State, of nationals of other Member States from access to the posts of master and chief mate in the merchant navy cannot be justified on the grounds of public policy, public security or public health mentioned in Article 39(3) EC, since the right of Member States to restrict the free movement of persons on those grounds is not intended to exclude economic sectors such as that of merchant shipping or occupations such as that of master or chief mate of merchantmen from the application of that principle as regards access to employment, but to allow Member States to refuse access to their territory or residence there to persons whose access or residence would in itself constitute a danger for public policy, public security or public health.

see paras 48-49

3. The implementation of the obligations imposed on Member States by the Treaty or secondary legislation cannot be made subject to a condition of reciprocity.

see para. 61

4. Article 39 EC is to be construed as precluding a Member State from making access by nationals of the other Member States to the posts of master and chief mate of merchant ships flying its flag subject to a condition of reciprocity.

see para. 61, operative part 2
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Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Exemptions provided for by the Sixth Directive — Exemption for medical care provided in the exercise of the medical and paramedical professions — Scope — Expert medical report in connection with the grant of a disability pension — Excluded — ( Art. 13A(1)(c) of Council Directive 77/388 )

Summary

Article 13A(1)(c) of Sixth Directive 77/388, relating to the exemption from value added tax of certain medical services, does not exempt all the services which may be effected in the exercise of the medical and paramedical professions, but only " provision of medical care" .

In that regard, it is the purpose of a medical service which determines whether it should be exempt from VAT. Therefore, if the context in which such a service is effected enables it to be established that its principal purpose is not the protection, including the maintenance or restoration, of health but rather the provision of advice required prior to taking a decision with legal consequences, the exemption does not apply to the service.

Thus, Article 13A(1)(c) is to be interpreted as meaning that the exemption from value added tax under that provision does not apply to the services of a doctor consisting of making an expert report on a person ' s state of health in order to support or exclude a claim for payment of a disability pension. The fact that the medical expert was instructed by a court or pension insurance institution is irrelevant in that respect.

see paras 35, 42, 45, operative part
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Actions for failure to fulfil obligations — Proof of failure — Burden of proof borne by the Commission — (Art. 226 EC)
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Social policy — Men and women — Equal pay — National law preventing transsexuals who have undergone surgical gender reassignment from marrying — Not permissible — Right of their partners to nominate them as the beneficiary of a survivor ' s pension — To be determined by the national court — (Art. 141 EC)

Summary

Article 141 EC, in principle, precludes legislation which, in breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms, prevents a heterosexual couple, where the sexual identity of one of the partners is the result of gender reassignment surgery, from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other. Since it is for the Member States to determine the conditions under which legal recognition is given to the change of gender of a person who has undergone surgical gender reassignment, it is for the national court to determine whether the partner of such a transsexual can rely on Article 141 EC in order to gain recognition of the right to nominate his or her transsexual partner as the beneficiary of a survivor ' s pension.

see paras 33-36, operative part
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1. Preliminary rulings – Jurisdiction of the Court – Limits – General or hypothetical questions – Determination by the Court as to whether it has jurisdiction

(Art. 234 EC)

2. Approximation of laws – Review procedures concerning the award of public supply and public works contracts – Directive 89/665 – Obligation on Member States to provide for review procedures – Clause in an invitation to tender incompatible with Community rules – Obligation to make it possible to rely on that incompatibility in a review procedure

(Council Directive 89/665, Arts 1(1) and 2(7))

Summary

1. The procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts. In the context of that cooperation, the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, is best placed to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.

The fact none the less remains that it is for the Court, if need be, to examine the circumstances in which the case was referred to it by the national court or tribunal, in order to assess whether it has jurisdiction and in particular to determine whether the interpretation of Community law which is requested bears any relation to the actual nature and subject-matter of the main proceedings, in order that the Court will not be required to give opinions on general or hypothetical questions. If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment.

(see paras 33-35)

2. Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.

(see para. 50, operative part)
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1. Actions for failure to fulfil obligations – Proof of the failure – Burden of proof on the Commission – Presumptions – Not permissible

(Art. 226 EC)

2. Acts of the institutions – Directives – Implementation by the Member States – Need for complete transposition – Existence of national rules rendering transposition by specific legislative or regulatory measures superfluous – Whether permissible – Conditions

3. Actions for failure to fulfil obligations – Disregard of obligations under a decision or a directive – Pleas in defence – Plea questioning the lawfulness of the decision or directive – Not admissible

(Art. 230 EC)

Summary

1. In an action for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption.

The Commission does not comply with that obligation if, in the case of a national system of waste classification that is compatible with that laid down by the Community legislation, it confines itself to pointing out differences between the two systems in order to complain that the Member State has implemented that legislation incorrectly, without showing that the differences established are such as to harm the interests of the operators concerned and affect the principle of legal certainty.

(see paras 34, 47-48)

2. Each of the Member States to which a directive is addressed is obliged to adopt, in its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues.

The obligation to ensure the full effectiveness of the directive, in accordance with its objective, cannot be interpreted as meaning that the Member States are released from adopting transposing measures where they consider that their national provisions are better than the Community provisions concerned and that the national provisions are therefore better able to ensure that the objective pursued by the directive is achieved. The existence of national rules may render transposition by specific legislative or regulatory measures superfluous only if those rules actually ensure the full application of the directive by the national authorities and, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those national rules is sufficiently precise and clear and the persons concerned are in a position to know the full extent of their rights and obligations and, where appropriate, to rely on them before the national courts.

(see paras 38-39)

3. A Member State cannot properly plead the unlawfulness of a directive or decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision or comply with that directive.

(see para. 41)
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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)

Summary

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)