ddrg/super_eurlex huggingface dataset:
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Approximation of laws – Telecommunications sector – Electronic communications networks and services – Regulatory framework – Directive 2002/21 – Universal service and users’ rights – Directive 2002/22 – Unfair business-to-consumer commercial practices – Directive 2005/29

(European Parliament and Council Directives 2002/21, 2002/22 and 2005/29)

Summary

Directive 2002/21, on a common regulatory framework for electronic communications networks and services, and Directive 2002/22, on universal service and users’ rights relating to electronic communications networks and services, must be interpreted as not precluding national legislation which prohibits making the conclusion of a contract for the provision of services contingent on the conclusion, by the end‑user, of a contract for the provision of other services. However, Directive 2005/29, concerning unfair business‑to‑consumer commercial practices in the internal market, must be interpreted as precluding national legislation which, with certain exceptions, and without taking account of the specific circumstances, imposes a general prohibition of combined offers made by a vendor to a consumer.

(see para. 33, operative part)
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Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission

(Art. 226 EC)

Summary

In proceedings brought under Article 226 EC for failure to fulfil obligations, it is incumbent upon the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information required to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption whatsoever.

Thus, when the Commission seeks to prove that national tax legislation results in higher taxation of interest paid to non-resident entities and relies, for that purpose, on an arithmetical example, it is incumbent on it to establish that the figures on which its calculation is based reflect the economic reality inasmuch as, first, the calculation in question, which the Commission itself describes as ‘theoretical’, is disputed by the national government on the ground that the premiss underlying it bears no relation to the true position and as, second, the government concerned puts forward a calculation based on a different profit margin which produces a solution in which resident legal entities are taxed more heavily. The Commission may thus furnish, inter alia, statistical data or information concerning the level of interest paid on bank loans and relating to the refinancing conditions in order to support the plausibility of its calculations. Since the Commission failed to produce, either during the written procedure or the hearing, or even after an express request by the Court, any conclusive evidence whatsoever that would have been capable of establishing that the figures it puts forward in support of its argument are in fact borne out by the actual facts, and the arithmetical example on which it relies is purely hypothetical, the Commission has failed to prove that the obligation has not been fulfilled.

(see paras 26-27, 29-31)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Refund of tax to taxable persons not established in European Union territory

(Council Directives 86/560, Art. 2(1), and 2006/112, Art. 169(c), 170 and 171)

Summary

A Member State which excludes the refund of input value added tax for insurance and financial transactions referred to in Article 169(c) of Directive 2006/112 on the common system of value added tax made by taxable persons not established in the territory of the European Union does not fail to fulfil its obligations under Articles 169 to 171 of Directive 2006/112 and Article 2(1) of the Thirteenth VAT Directive 86/560 on the harmonisation of the laws of the Member States relating to turnover taxes.

The provisions of the Thirteenth Directive and, in particular Article 2(1) thereof, which makes no reference to the transactions referred to in Article 169(c) of Directive 2006/112, must be considered as a lex specialis as compared with Articles 170 and 171 of Directive 2006/112, preventing the right to a refund, set out in general terms in Article 170, from overriding the clear and precise wording of Article 2(1) of the Thirteenth Directive.

Even if the absence of any reference in Article 169(c) of Directive 2006/112 is an error by the legislature of the European Union, it is not for the Court to make an interpretation with the aim of correcting Article 2(1). Furthermore, a Member State, whose law complies with the clear and precise wording of Article 2(1), cannot be accused of failing to fulfil its obligations specifically arising from that provision because it allegedly failed to interpret that provision with the aim of correcting it, in order to comply with the overall logic of the common system of VAT and to remedy an error of the legislature of the European Union. In that connection, the principle of legal certainty requires the rules of the European Union to enable those concerned to know precisely the extent of the obligations imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly. That principle is also relevant in the context of the transposition of a directive in the area of taxation. The Court may not, in the face of the clear and precise wording of a provision such as Article 2(c), interpret that provision with the intention of correcting it and thereby extending the obligations of the Member States relating to it.

(see paras 35, 46, 48-51)
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1. Preliminary rulings – Admissibility – Limits

(Art. 234 EC)

2. Preliminary rulings – Jurisdiction of the Court

(Art. 234 EC)

3. Competition – Community rules – Obligations of the Member States

(Arts 10 EC, 81 EC and 82 EC)

Summary

1. It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, 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 it submits to the Court. Consequently, when the questions submitted concern the interpretation of European Union law, the Court is, in principle, bound to give a ruling. It follows that questions relating to European Union law enjoy a presumption of relevance. The Court may thus refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

(see paras 19-20)

2. When, in the context of a reference for a preliminary ruling, all aspects of the case before the referring court are confined within one Member State, an answer may nevertheless be useful to the referring court, in particular if its national law were to require it to allow a national of that Member State to enjoy the same rights as those which a national of another Member State would derive from European Union law in the same situation.

The situation evoked in the above paragraph applies to the rights that a national of another Member State could derive from European Union law if he were in the same situation as the applicant, running a pharmacy in a specific municipal area and faced with a decision of the competent national authorities applying national legislation to an application which in no way calls in question the general system of rules on opening times and holidays for pharmacies laid down by that legislation, but seeks merely to obtain, as an exception to that general system, exemption from any period of closure.

Therefore, in the light of the specific circumstances of the main proceedings, it is quite obvious that the interpretation of Article 49 EC, requested by the referring court in its order, is not relevant for the outcome of the main proceedings.

(see paras 23-25)

3. The provisions of Community law relating to competition, in particular Articles 81 EC to 86 EC, are manifestly inapplicable to national legislation relating to the possible grant of an exemption in relation to the opening periods of a pharmacy located in a specific municipal area. Such legislation cannot, in itself or by its application, affect trade between Member States within the meaning of Articles 81 EC and 82 EC.

(see paras 29, 32)
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1. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29

(European Parliament and Council Directive 2005/29)

2. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29

(European Parliament and Council Directive 2005/29, Art. 5(2)(a) and (b))

Summary

1. Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as precluding a national provision that lays down a general prohibition of sales with bonuses and is not only designed to protect consumers but also pursues other objectives.

Directive 2005/29 carries out a complete harmonisation of the rules concerning unfair commercial practices of undertakings vis-à-vis consumers and establishes, in Annex I, an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of that directive, are regarded as unfair in all circumstances. Consequently, as expressly stated in recital 17 in the preamble to the said Directive 2005/29, those commercial practices alone can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9 of the directive. Practices consisting in offering consumers bonuses associated with the purchase of products or services do not appear in Annex I to the directive. Therefore, they may not be prohibited in all circumstances, but may be prohibited only following a specific assessment allowing the unfairness of those practices to be established.

(see paras 27, 34-35, 41, operative part 1)

2. The opportunity of participating in a prize competition, linked to the purchase of a newspaper, does not constitute an unfair commercial practice within the meaning of Article 5(2) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market, simply on the ground that, for at least some of the consumers concerned, that chance of participating in a competition represents the factor that determines them to buy that newspaper.

(see para. 47, operative part 2)
Judgment of the Court (Seventh Chamber) of 4 November 2008 – Commission v Luxembourg

(Case C‑95/08)

Failure of a Member State to fulfil obligations – Directive 2004/9/EC – Failure to designate the authorities responsible for the inspection of laboratories and for the audit of studies carried out by laboratories to assess compliance with the principles of good laboratory practice

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. 24)

Re:

Failure of a Member State to fulfil obligations – Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP) (OJ 2004 L 50, p. 28) – Failure to designate the authorities responsible for the inspection of laboratories and for the audit of studies carried out by laboratories to assess compliance with the principles of good laboratory practice.

Operative part

The Court:

1. Declares that by not putting in place the authorities able to verify the implementation of the principles of good laboratory practice, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 3 of Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP);
Judgment of the Court (Seventh Chamber) of 18 December 2008 – Commission v Luxembourg

(Case C-273/08)

Failure of a Member State to fulfil obligations – Directive 2001/81/EC – Atmospheric pollutants – National emission ceilings – Failure to communicate programmes for the reduction of emissions, national emission inventories and annual projections for the year 2010

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)

Re:

Failure of a Member State to fulfil obligations – Failure to draw up and communicate, within the prescribed periods, the documents provided for in Articles 6, 7 and 8 of Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (OJ 2001 L 309, p. 22).

Operative part

The Court:

1. Declares that, by failing to communicate to the Commission of the European Communities, within the prescribed period, the programmes, inventories and annual projections for the year 2010 relating to the progressive reduction of its emissions of sulphur dioxide (SO2), nitrogen oxides (NOX), volatile organic compounds (VOC) and ammonia (NH3), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants;
1.

Declares that, by failing to adopt, within the prescribed period, all 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 Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 of that directive;
Judgment of the Court (Eighth Chamber) of 2 July 2009 – Commission v Greece

(Case C‑465/08)

Failure of a Member State to fulfil obligations – Directive 2005/36/EC – Right of establishment – Recognition of professional qualifications – Failure to adopt 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. 11)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the measures 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 (OJ 2005 L 255, p. 22), which repeals Directive 89/49/EEC (OJ 1989 L 19, p. 16).

Operative part

The Court:

1. Declares that, by not adopting 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 Hellenic Republic has failed to fulfil its obligations under that directive;
Judgment of the Court (Sixth Chamber) of 29 October 2009 – Commission v Belgium

(Case C‑474/08)

Failure of a Member State to fulfil obligations – Failure to adopt all the provisions necessary to comply with Article 23(2) and (5) of Directive 2003/54/EC concerning common rules for the internal market in electricity – Powers of the regulatory authority in the electricity sector

1. Approximation of laws – Measures for the establishment and proper functioning of the internal market in electricity – Directive 2003/54 (European Parliament and Council Directive 2003/54, Art. 23(5)) (see para. 23)

2. Approximation of laws – Measures for the establishment and proper functioning of the internal market in electricity – Directive 2003/54 (European Parliament and Council Directive 2003/54, Art. 23(2)(a)) (see para. 31)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt all the provisions necessary to comply with Article 23(2) and (5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37) – Powers of the regulatory authority in the electricity sector.

Operative part

The Court:

1. Declares that

– by failing to provide that cases of refusal of access to the electricity distribution or transmission systems may be submitted to the regulatory authority which must then issue a binding decision within a period of two months, in accordance with the provisions of Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, and

– by attributing to an authority other than the regulatory authority the power to define criteria which are decisive for the calculation of tariffs as regards certain electricity transmission installations, contrary to the provisions of Article 23(2)(a) of Directive 2003/54,

the Kingdom of Belgium has failed to fulfil its obligations under that directive;
Judgment of the Court (Fourth Chamber) of 12 November 2009 – Le Carbone-Lorraine v Commission

(Case C-554/08 P)

Appeal – Competition – Agreements, decisions and concerted practices − Article 81 EC and Article 53 of the EEA Agreement – Market for electrical and mechanical carbon and graphite products − Article 15(2) of Regulation No 17 – Setting the amount of the fine – Gravity of the infringement – Cooperation during the administrative procedure – Principle of the individual nature of penalties – Equal treatment – Principle of proportionality

1. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Account to be taken of the effects of the whole of the infringement (Council Regulation 17, Art. 15; Commission notice 98/C 9/03, Section 1A) (see paras 21, 24)

2. Appeals – Grounds – Plea submitted for the first time in the context of the appeal – Inadmissibility – Claim or argument raised for the first time in the appeal proceedings – Inadmissibility (see para. 32)

3. Competition – Fines – Amount – Determination – Criteria – Effect of an anti-competitive practice – Criterion not conclusive (Council Regulation No 17, Art. 15; Commission notice 98/C 9/03, Section 1A) (see paras 43-44)

4. Appeals – Jurisdiction of the Court – Challenge on grounds of fairness to the General Court’s assessment concerning the amount of a fine imposed on an undertaking – Excluded (Council Regulation No 17, Art. 15) (see para. 72)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 8 October 2008 in Case T-73/04 Carbone-Lorraine v Commission , in which the Court dismissed the application brought by the appellant for the annulment of Commission Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement concerning an agreement in the market for electrical and mechanical carbon and graphite products or, in the alternative, annulment or reduction of the fine imposed on the appellant – Breach of the principle of the individual nature of penalties – Method for setting the amount of the fine imposed – Constant and close cooperation during the administrative procedure – Principles of proportionality and of equal treatment.

Operative part

The Court:

1. Dismisses the appeal;
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Subject of the case

Operative part



Keywords

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. 16

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 11 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13), as amended by Directive 2003/105/EC of the European Parliament and of the Council (OJ 2003 L 345, p. 97) – Failure to draw up external emergency plans for certain establishments.

Operative part

Operative part

The Court:

1. Declares that, by failing to ensure the implementation of the measures provided for under Article 11 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Portuguese Republic has failed to fulfil its obligations under that article;

2. Orders the Portuguese Republic to pay the costs.
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Summary



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1. Agriculture – Common organisation of the markets – Products processed from fruit and vegetables – Production aid – Peaches in syrup and/or in natural fruit juice – Included – Conditions

(Council Regulation No 2201/96, Art. 2(1); Commission Regulations No 2320/89 and No 1535/2003)

2. Agriculture – Common organisation of the markets – Products processed from fruit and vegetables – Production aid – Finished products – Definition

(Council Regulation No 2201/96; Commission Regulation No 1535/2003, Art. 2(1))

Summary

1. Article 2(1) of Regulation No 2201/96 on the common organisation of the markets in processed fruit and vegetable products, as amended by Regulation No 386/2004, must be interpreted as meaning that a product which is covered by one of the CN codes listed in Annex I to that regulation, as amended, including CN code 2008 70 92, and which corresponds to the definition ‘peaches in syrup and/or in natural fruit juice’, within the meaning of that regulation, read in conjunction with Regulation No 1535/2003 laying down detailed rules for applying Regulation No 2201/96 as regards the aid scheme for products processed from fruit and vegetables, as amended by Regulation No 386/2004, and with Regulation No 2320/89 laying down minimum quality requirements for peaches in syrup and/or in natural fruit juice under the production aid scheme, as amended by Regulation No 996/2001, qualifies for the aid scheme referred to in that provision.

(see para. 32, operative part 1)

2. The product obtained at the end of each different stage of processing of peaches may be regarded as being a finished product for the purposes of Regulations No 2201/96 on the common organisation of the markets in processed fruit and vegetables and No 1535/2003 laying down detailed rules for applying Regulation No 2201/96 as regards the aid scheme for products processed from fruit and vegetables, as amended by Regulation No 386/2004, provided that it has the characteristics set out in Article 2(1) of Regulation No 1535/2003.

(see para. 39, operative part 2)