ddrg/super_eurlex huggingface dataset:
Judgment of the Court (Third Chamber) of 15 June 2006 – Commission v Sweden

(Case C-459/04)

Failure of a Member State to fulfil obligations – Social policy – Protection of the safety and health of workers – Directive 89/391/EEC – Capabilities and aptitudes of persons designated to carry out activities related to protection against and prevention of occupational hazards in undertakings

1. Acts of the institutions – Directives – Implementation by the Member States (Art. 249, third para., EC) (see paras 32-34)

2. Social Policy – Protection of the safety and health of workers – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work (Council Directive 89/391, Art. 7(5) and (8)) (see paras 36-47)

Re:

Failure of a Member State to fulfil obligations – Incomplete transposition of Article 7(8) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1) – Definitions of capabilities and aptitudes of workers designated by the employer to carry out activities related to protection against and prevention of occupational hazards in undertakings.

Operative part:

The Court:

1. Dismisses the action;
Judgment of the Court (Second Chamber) of 10 January 2006 – Commission v Alvarez Moreno

(Case C-373/04 P)

Appeal – Officials – Member of the auxiliary staff – Conference interpreter – Action – Request pursuant to Article 90(1) of the Staff Regulations – Measure adversely affecting a person – Definition

1. Officials of the European Communities – Action – Request within the meaning of Article 90(1) of the Staff Regulations – Definition (Staff Regulations, Art. 90(1) (see para. 37)

2. Officials of the European Communities – Action – Act adversely affecting an official – Definition (Staff Regulations, Art. 91) (see paras 42, 44)

Re:

Appeal against the judgment of the Fifth Chamber of the Court of First Instance of 10 June 2004 in Joined Cases T-153/01 and T-323/01 Alvarez Moreno v Commission whereby the Court of First Instance annulled the Commission’s decision of 23 February 2001 declaring the age limit laid down in Article 74(1)(a) of the Conditions of Employment of Other Servants applicable to the contracts of members of the auxiliary staff recruited under the third paragraph of Article 78 of the Conditions of Employment as conference interpreters

Operative part:

The Court:

1. Sets aside the judgment of the Court of First Instance of the European Communities of 10 June 2004 in Joined Cases T-153/01 and T-323/01 Alvarez Moreno v Commission in so far as it declared that the action for annulment of the letter of Mr Walker of 23 February 2001 was admissible and ordered the Commission of the European Communities to pay the whole of the costs relating to the action in Case T-323/01;

2. In Case T-323/01, dismisses the action for annulment of, first, the letter of Mr Walker of 23 February 2001 and, second, the decision of the Commission of the European Communities of 7 September 2001 rejecting Mrs Alvarez Moreno’s complaint;
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Freedom of movement for persons – Workers – Right of family members to take up an activity as an employed person

(Council Regulation No 1612/68, Art. 11)

Summary

Article 11 of Regulation No 1612/68 on freedom of movement for workers within the Community does not confer on a national of a third country the right to take up an activity as an employed person in a Member State other than the one in which his spouse, a Community national, pursues or has pursued an activity as an employed person in exercise of her right to free movement.

(see para. 28, operative part)
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Approximation of laws – Trade marks – Directive 89/104 – Registration of a trade mark refused or trade mark declared invalid – Marks devoid of any distinctive character, descriptive marks and customary marks

(Council Directive 89/104, Art. 3(3))

Summary

Article 3(3) of First Directive 89/104 relating to trade marks must be interpreted as meaning that the registration of a trade mark can be allowed on the basis of that provision only if it is proven that that trade mark has acquired distinctive character through use throughout the territory of the Member State or, in the case of Benelux, throughout the part of the territory of Benelux in which there exists a ground for refusal.

As regards a mark consisting of one or more words of an official language of a Member State or of Benelux, if the ground for refusal exists only in one of the linguistic areas of the Member State or, in the case of Benelux, in one of its linguistic areas, it must be established that the mark has acquired distinctive character through use throughout that linguistic area. In the linguistic area thus defined, it must be assessed whether the relevant class of persons, or at least a significant proportion thereof, identifies the product or service in question as originating from a particular undertaking because of the trade mark.

(see paras 23, 28, operative part 1-2)
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Environment – Conservation of wild birds – Directive 79/409 – Designation and definition of the boundaries of special protection areas

(Council Directive 79/409, Art. 4(1) and (2))

Summary

The ornithological criteria laid down in paragraphs (1) and (2) of Article 4 of Directive 79/409 on the conservation of wild birds are to guide the Member States in designating and defining the boundaries of Special Protection Areas (SPAs). Accordingly, although the areas of an SPA may not provide a habitat for steppe-land birds, but do provide a habitat for other species of wild birds listed in Annex I to the Directive for whose protection that SPA has been designated, a Member State may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded from the SPA are no longer the most suitable territories for the conservation of species of wild birds within the meaning of Article 4(1) of the Directive.

(see paras 10, 12-13)
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Freedom of movement for persons – Workers – Freedom of establishment – Citizenship of the European Union – Tax legislation

(Arts 18 EC, 39 EC and 43 EC; EEA Agreement, Arts 28 and 31)

Summary

A Member State which maintains in force tax provisions making entitlement to exemption from tax on capital gains arising from the transfer for valuable consideration of real property intended for the taxable person’s own and permanent residence or for that of a member of his family subject to the condition that the gains realised should be reinvested in the purchase of real property situated in its national territory fails to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC, and under Articles 28 and 31 of the European Economic Area Agreement (EEA).

A taxable person who decides to sell property that he owns and uses as his own residence in that Member State in order to transfer his residence to another Member State and to purchase a new property there for the purposes of his accommodation, in the exercise of the right of every citizen of the Union to move and reside freely within the territory of the Member States, expressed specifically in Article 43 EC with regard to freedom of establishment and in Article 39 EC with regard to freedom of movement for workers, or in the exercise of the rights conferred by Article 28 of the EEA Agreement with regard to freedom of movement for workers and Article 31 of the EEA Agreement with regard to freedom of establishment, is thereby subjected to less favourable tax treatment than that enjoyed by a person who maintains his residence in the Member State concerned.

The need to maintain the coherence of the tax system cannot justify that difference in treatment since, for an argument based on such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, which is not the case here.

Since the contested legislation runs counter to the provisions of the Treaty and the EEA Agreement on freedom of movement for persons, there is no need for a separate examination of that legislation in the light of Article 56(1) EC and Article 40 of the EEA Agreement concerning the free movement of capital.

(see paras 13, 21, 43, 45, operative part 1)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Special scheme for small undertakings

(Council Directive 77/388, Arts 18(1)(a) and (2), 22(3) to (5), and 24(1))

Summary

A Member State which allows taxable persons not established in that Member State who transport passengers there not to submit tax return forms and not to pay the net amount of value added tax when their annual turnover is below a certain amount, in that case deeming the amount of tax due to be equal to the amount of deductible tax and which makes application of the simplified rules contingent on that value added tax not appearing on invoices or in other documents serving as invoices, has failed to fulfil its obligations under Articles 18(1)(a) and (2) and 22(3) to (5) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.

Such a scheme exceeds the powers enjoyed by the Member States under Article 24(1) of the Sixth Directive, since it does not adopt ‘simplified procedures for charging and collecting the tax’ but exempts the undertakings concerned from declaring and paying value added tax.

(see paras 27, 29, operative part)
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Agriculture – Approximation of laws – Protection of animals during transport – Directive 91/628

(Council Directive 91/628, Annex, point 48(4)(d))

Summary

‘Travel’, referred to in point 48(4)(d) of the Annex to Directive 91/628 on the protection of animals during transport and amending Directives 90/425 and 91/496, as amended by Directive 95/29, is to be interpreted as including the time taken to load and unload the animals.

That definition corresponds to the objectives of Directive 91/628 as evidenced by, inter alia, the second and eighth recitals in the preamble to the directive in its initial version, which are to ensure a satisfactory level of protection for the animals and, for reasons connected with their welfare, to reduce their transport over long distances as far as possible. Since the directive contains no restriction on the time taken for loading and unloading the animals as such, it follows that, if point 48(4)(d) of the Annex to Directive 91/628 were interpreted as meaning that that time is not included in travel time, the duration of those loading and unloading operations would not be taken into consideration in any way, which would render that provision ineffective.

(see paras 19-20, 24, operative part)
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Officials – Reports procedure – Observance of the rights of the defence

(Staff Regulations, Art. 26, first and second paras, and Art. 43)

Summary

As a procedural guarantee, the fundamental principle that the rights of the defence must be observed cannot be interpreted, in the field of the appraisal of European Communities staff, as imposing, before the procedure leading to such an appraisal, any obligation to give prior warning. That principle must allow the individual concerned, during the appraisal procedure, to defend himself against any criticism of his conduct which might be taken into account, but its role is not to allow him to adapt his behaviour in the future in order to avoid the conduct proven being actually taken into account against him. Improving one’s conduct in the service is an objective which goes beyond the scope of observance of the rights of the defence. That objective is in fact served by the staff report.

In addition, the first and second paragraphs of Article 26 of the Staff Regulations, the purpose of which is to guarantee the official’s right of defence relate to documents which already exist, and preclude, during the appraisal procedure, such documents from being taken into account to the detriment of the official under appraisal without having been communicated to him before being placed on his personal file, but do not require documents formalising any criticism of the conduct of the individual concerned to be prepared beforehand.

It follows that neither the fundamental principle of observance of the rights of the defence nor the first and second paragraphs of Article 26 of the Staff Regulations make the fact that a matter may be held against an official in his appraisal report subject to the drawing-up, prior to the procedure leading to the adoption of that report, of a written warning and the communication of that warning to the individual concerned.

(see paras 39, 41, 43-44, 52)
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Actions for failure to fulfil obligations

–

Examination of merits by the Court

–

Situation to be taken into consideration

–

Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 7

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to adopt the provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1)

Operative part

Operative part:

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Italian Republic has failed to fulfil its obligations under that directive;

2. Orders the Italian Republic to pay the costs.
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Subject of the case

Operative part



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Actions for failure to fulfil obligations

–

Examination of 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

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Incorrect application of Article 5(4) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40).

Operative part

Operative part:

The Court:

1. Declares that, by being unable to prove that the minimum percentage of reduction of the overall load entering all water-treatment plants is at least 75% for total nitrogen, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 5(4) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment;

2. Orders the Grand Duchy of Luxembourg to pay the costs.
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Subject of the case

Operative part



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Actions for failure to fulfil obligations

–

Examination of merits by the Court

–

Situation to be taken into consideration

–

Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 7

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure fully to transpose Articles 8(2)(b), 11, 12 and 24(1) 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).

Operative part

Operative part:

The Court:

1. Declares that, by failing to transpose, within the period prescribed:

– the provisions of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances into the national legislation on blasting supplies and explosives and the legislation of the Land Salzburg on electricity;

– Article 11 of Directive 96/82 in the Länder of Salzburg, Styria and Tirol;

– Article 12 of Directive 96/82 in the Land of Upper Austria; and

– Article 8(2)(b) of Directive 96/82 in the Länder of Upper Austria, Salzburg and Tirol,

the Republic of Austria has failed to fulfil its obligations under that directive;

2. Orders the Republic of Austria to pay the costs.
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Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001

(Council Regulation No 44/2001, Art. 34, para. 2)

Summary

Article 34(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.

In order for the defendant to have the opportunity to mount a challenge, he should be able to acquaint himself with grounds of the default judgment in order to challenge them effectively, the mere fact that the person concerned is aware of the existence of that judgment being insufficient in that regard.

However, due service of a default judgment, that is to say, compliance with all the rules applicable to those formalities, does not constitute a necessary condition in order to justify the conclusion that it was possible for the defendant to bring proceedings. In that regard, the broad logic of Regulation No 44/2001 does not require service of a default judgment to be subject to conditions more stringent than those provided for as regards service of the document instituting proceedings. It is service of the document instituting proceedings and the default judgment, as in sufficient time and in such a way as to enable the defendant to arrange for his defence which afford him the opportunity to ensure that his rights are respected before the courts of the State in which the judgment was given. As far as concerns the document instituting proceedings, Article 34(2) of Regulation No 44/2001 removes the necessary condition for due service laid down in Article 27(2) of the Brussels Convention. Therefore, a mere formal irregularity, which does not adversely affect the rights of defence, is not sufficient to prevent the application of the exception to the ground justifying non-recognition and non-enforcement.

(see paras 34-35, 41, 43-47, 49, operative part)
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1. Social policy – Information and consultation of employees – Directive 2002/14

(European Parliament and Council Directive 2002/14, Art. 3(1))

2. Social policy – Approximation of laws – Collective redundancies – Directive 98/59

(Council Directive 98/59, Art. 1(1)(a))

Summary

1. Article 3(1) of Directive 2002/14, establishing a general framework for informing and consulting employees in the European Community, which provides that Member States are to determine the method for calculating the thresholds of employees employed, must be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers within the meaning of that provision. That provision concerns determination of the method of calculation of the thresholds of employees employed and not the actual definition of the concept of an employee.

(see paras 33, 41, operative part 1)

2. Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers set out in that provision.

That directive, which is intended to provide minimum protection with regard to the information and consultation of employees in the event of collective redundancies, cannot be interpreted as meaning that the methods for calculation of those thresholds, and therefore the thresholds themselves, are within the discretion of the Member States, since such an interpretation would allow the latter to alter the scope of that directive and thus to deprive it of its full effect.

(see paras 44, 47, 49, operative part 2)
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1. Freedom of movement for persons – Right of entry and residence of nationals of Member States – Right of residence of nationals of non-member countries who are family members of Community nationals

(Council Directive 73/148)

2. Freedom of movement for persons – Right of entry and residence of nationals of Member States – Right of residence of nationals of non-member countries who are family members of Community nationals

(Art. 43 EC; Council Directive 73/148, Art. 1(1)(d) and (6)(b))

Summary

1. Community law does not require Member States to make the grant of a residence permit to nationals of a non-Member State, who are members of the family of a Community national who has exercised his or her right of free movement, subject to the condition that those family members have previously been residing lawfully in another Member State.

(see para. 33, operative part 1)

2. Article 1(1)(d) of Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services is to be interpreted to the effect that ‘dependent on them’ means that members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join that Community national. Article 6(b) of that directive must be interpreted as meaning that proof of the need for material support may be adduced by any appropriate means, while a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members’ situation of real dependence.

(see para. 43, operative part 2)