ddrg/super_eurlex huggingface dataset:
Judgment of the Court of 31 May 1989. - Commission of the European Communities v Kingdom of the Netherlands. - Failure of a State to fulfil its obligations - Obligation to become affiliated to a supervisory body for importing and exporting plant propogation material. - Case 43/88.



European Court reports 1989 Page 01649

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Member States - Obligations - Failure to fulfil - Justification - Not acceptable

( EEC Treaty, Art . 169 )

Summary

As the Court has consistently held, a Member State may not rely on the provision, practices or situations in its internal legal order to justify failure to fulfil its obligations under Community law .

Parties

In Case 43/88

Commission of the European Communities, represented by René Barents, a members of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a Member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of the Netherlands, represented by its Agents G . M . Borchardt and M . A . Fierstra, Deputy Legal Advisers in the Ministry of Foreign Affairs, with an address for service in Luxembourg at the Netherlands Embassy, 5 rue C . M . Spoo,

defendant,

APPLICATION for a declaration that, by laying down an affiliation requirement for the importing, exporting and offering for export plant propagation material by way of trade, the Kingdom of the Netherlands has failed to fulfil its obligations under Regulation No 234/68 of the Council of 27 February 1968 ( Official Journal, English Special Edition 1968 ( I ), p . 26 ) and Regulation No 2358/71 of the Council of 26 October 1971 ( Official Journal, English Special Edition 1971 ( III ), p . 894 ) as well as under Articles 30 to 34 of the EEC Treaty,

THE COURT

composed of : O . Due, President, T . Koopmans and F . Grévisse ( Presidents of Chambers ), G . F . Mancini, C . N . Kakouris, F . A . Schockweiler, J . C . Moitinho de Almeida, M . Díez de Velasco and M . Zuleeg, Judges,

( the grounds of the judgment are not reproduced )

hereby :

Operative part

( 1)Declares that, by requiring traders who import, export and offer for export by way of trade propagation material for agricultural plants, vegetables and spices and for fruit trees and certain hardwood oils to be affiliated to certain supervisory bodies, the Kingdom of the Netherlands has failed to fulfil its obligations under Regulation No 234/68 of the Council of 27 February 1968 on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage and under Regulation No 2358/71 of the Council of 26 October 1971 on the common organization of the market in seeds, and that, by making traders who import or export propagation material for seed potatoes subject to the same obligation, it has failed to fulfil its obligations under Articles 30 to 34 of the EEC Treaty;

( 2)Orders the Kingdom of the Netherlands to pay the costs .
Judgment of the Court (Second Chamber) of 10 January 1990. - Gebrüder Gausepohl v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Agriculture - Special export refunds for certain meat of bovine animals. - Case C-101/88.



European Court reports 1990 Page I-00023

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Agriculture - Common organization of the markets - Meat of bovine animals - Export refunds - Special refunds for certain boned meat - Conditions for the grant thereof - Exportation of the total quantity of cuts from hindquarters of adult male cattle placed under supervision - Negligible part missing of no effect

( Commission Regulation No 1964/82, Art . 6(1 ) )

Summary

The first paragraph of Article 6 of Regulation No 1964/82 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals must be interpreted as meaning that the grant of the special refund is conditional on the exportation of the total quantity of pieces from hindquarters placed under supervision . However, the fact that a negligible part of that total quantity is missing does not, regard being had to the principle of proportionality and in the absence of bad faith by the trader, constitute sufficient grounds for considering that the condition relating to exportation has not been met with regard to the remainder of the meat .

Parties

In Case C-101/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht ( Finance Court ) Hamburg for a preliminary ruling in the proceedings pending before that court between

Firma Gebr . Gausepohl

and

Hauptzollamt ( Principal Customs Office ) Hamburg-Jonas,

on the interpretation of the first paragraph of Article 6 of Commission Regulation ( EEC ) No 1964/82 of 20 July 1982 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals ( Official Journal 1982, L 212, p . 48 ),

THE COURT ( Second Chamber )

composed of : F . A . Schockweiler, President of Chamber, G . F . Mancini and T . F . O' Higgins, Judges,

in answer to the questions referred to it by the Finanzgericht, Hamburg, by order of 14 December 1987, hereby rules :

Operative part

The first paragraph of Article 6 of Regulation ( EEC ) No 1964/82 is to be interpreted as meaning that the grant of the special refund is conditional on exportation of the total quantity of pieces from hindquarters placed under supervision . However, the fact that a negligible part of that total quantity is missing does not, in the absence of bad faith, constitute sufficient grounds for considering that the condition relating to exportation has not been met with regard to the remainder of the meat .
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1 . Action for annulment - Actionable acts - Commission' s decision not to bring an action for failure to fulfil obligations - Not an actionable act

( EEC Treaty, Arts 169 and 173 )

2 . Action for annulment - Natural or legal persons - Acts of direct and individual concern to them - Commission' s refusal to rectify retroactively the amount of aid granted in the context of a common organization of agricultural markets - Rectifications necessitating the adoption of regulations - Inadmissible

( EEC Treaty, Art . 173, second paragraph )

3 . Action for damages - Autonomous in relation to the action for annulment - Action for compensation for the damage caused by an allegedly unlawful regulation - Admissible

( EEC Treaty, Art . 178 and Art . 215, second paragraph )

Summary

1 . An action for annulment against a Commission decision not to bring proceedings against a Member State for failure to fulfil its obligations is inadmissible . It is evident from the scheme of Article 169 of the EEC Treaty that the Commission has no obligation to commence proceedings under that article; it has a discretionary power precluding the right of individuals to require it to adopt a particular position and to bring an action for annulment against its refusal to take action .

2 . An action for annulment brought by a national or legal person against the Commission' s refusal to rectify retroactively the amount of aid granted in the context of a common organization of agricultural markets is inadmissible because the correction requested would have had to be adopted in the form of a generally applicable regulation concerning, in practice, all economic operators in the Community in their sole capacity as tomato producers covered by the aid scheme in question .

3 . The action for compensation provided for by Article 178 and the second paragraph of Article 215 of the EEC Treaty was introduced as an autonomous form of action with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific nature . It differs from an action for annulment in particular in that its purpose is not to set aside a specific measure but to repair the damage caused by an institution . A claim for damages based on an institution' s allegedly unlawful conduct in the exercise of its rule-making powers must therefore be considered by way of that action and be upheld if it is well founded, irrespective of whether the damage could be removed by an amendment of the rules at issue .
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1 . Social security for migrant workers - Benefits - National anti-overlapping rules - Entitlement under national legislation alone - Applicability - Limits - Community rules more favourable to the worker

( Council Regulation No 1408/71, Arts 12(2 ) and 46(3 ) )

2 . Social security for migrant workers - Benefits - National anti-overlapping rules - Not applicable to recipients of benefits of the same kind calculated in accordance with Regulation No 1408/71 - Early retirement pension and invalidity pension - Treated as benefits of the same kind

( Council Regulation No 1408/71, Arts 12(2 ) and 46 )

3 . Social security for migrant workers - Benefits - National anti-overlapping rules - Classification, for the purposes of the application of national anti-overlapping rules, of benefits under different national schemes - Matter governed by national law

Operative part

( 1 ) Where an employed or self-employed person receives a pension by virtue of national legislation alone, the provisions of Regulation ( EEC ) No 1408/71 do not preclude that legislation alone from being applied to him in its entirety, including any national rules against the overlapping of benefits, unless the application of that national legislation proves to be less favourable to him than that of the rules laid down in Article 46 of Regulation ( EEC ) No 1408/71 . In the latter case, Article 46 must be applied, account being taken of the fact that provisions for reduction, suspension or withdrawal of benefit laid down by national legislation are inapplicable by virtue of the final sentence of Article 12(2 ) of the regulation, when the person concerned receives benefits of the same kind in respect of invalidity, old age, death ( pensions ) or occupational disease awarded by the institutions of the different Member States . An early retirement pension and an invalidity pension are to be regarded as benefits of the same kind within the meaning of Article 12(2 ) of the regulation .

( 2 ) When the legislation of only one Member State is applied, the classification, in the light of the anti-overlapping rules contained in that legislation, of an early retirement pension awarded under the legislation of that State alone and of an invalidity pension awarded by another Member State is not governed by Community law .
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1 . Agriculture - Common organization of the markets - Cereals - Additional co-responsibility levy - Objective - Levy not in nature of a fiscal charge - Provisional collection subject to possible reimbursement subsequently - Principle of proportionality - Not infringed

( Regulation No 2727/75 of the Council, as amended by Regulation No 1097/88, Article 4b; Commission Regulation No 1432/88 )

2 . Community law - Principles - Proportionality - Measures imposing financial charges - Whether proportionate - Criteria for assessment - Community legislature' s discretion in relation to the common agricultural policy - Review by the Court - Limits

( EEC Treaty, Arts 40 and 43 )

Summary

1 . The additional co-responsibility levy in the cereals sector cannot be classified as a fiscal charge and its legality may not therefore be appraised by reference to criteria taken from tax law . It is an agricultural-policy measure intended to stem and prevent growth in the cereals market, which is characterized by structural surpluses, by bringing direct pressure to bear on the prices paid to cereals producers . That economic objective and the intended dissuasive effect justify provisional collection of the levy when the cereals are placed on the market, subject to partial or total reimbursement thereof in the event of its being ascertained at the end of the relevant marketing year that the maximum guaranteed quantity has not been exceeded or has been exceed by less than a specified percentage, and the principle of proportionality is not thereby infringed .

2 . By virtue of the principle of proportionality, the legality of measures imposing financial burdens on economic operators is conditional upon those measures being appropriate to and necessary for the attainment of objectives legitimately pursued by the rules in question, provided however that, where there is a choice of several appropriate measures, the least restrictive must be adopted and care must be taken to ensure that the burdens imposed are not excessive in relation to the aims pursued . Review by the Court of compliance with the abovementioned conditions must nevertheless take account of the fact that, in relation to the common agricultural policy, the Community legislature enjoys a wide discretion, reflecting the political responsibilities conferred on it by Articles 40 and 43 of the Treaty .
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1 . Preliminary rulings - Jurisdiction of the Court - Limits - Spurious dispute or request for an interpretation of Community provisions which are not applicable to the main proceedings - Interpretation requested by reason of the applicability of a provision of Community law owing to a reference thereto incorporated into national law - Jurisdiction to give such an interpretation

( EEC Treaty, Art . 177 )

2 . Common Customs Tariff - Headings - Criteria for distinguishing between Heading 9701 and Heading 9703

Summary

1 . In the division of functions in the administration of justice between national courts and the Court of Justice provided for by Article 177 of the Treaty the Court of Justice gives preliminary rulings without, in principle, having to examine the circumstances in which the national courts have been led to refer questions and propose to apply the provision of Community law which they have asked the Court to interpret .

It would be otherwise only in cases where either it appears that the procedure of Article 177 of the Treaty has been misused and been resorted to, in fact, in order to elicit a ruling from the Court in the absence of a genuine dispute or it is obvious that the provision of Community law submitted for the interpretation of the Court cannot apply .

That is not so if the Court is asked to interpret a provision of Community law which the national court is bound to apply, regardless of the scope assigned to it by Community law, owing to the fact that the national legislation incorporates a reference thereto .

2 . Since the criteria for distinguishing between Heading 9701, "paintings, drawings and pastels, executed entirely by hand ... collages and similar decorative plaques", and Heading 9703, "original sculptures and statuary, in any material", of the Common Customs Tariff lies in the fact that as regards productions of statuary and sculptural art the essential artistic nature consists in the shaping of a three-dimensional form of the work, whereas for paintings, collages and similar decorative plaques it consists in shaping the surface of the work, a work of art consisting of a steel plate having no artistic value of its own, with a fused coating of enamel-glaze colours applied by the artist by hand, must be regarded as a "painting executed entirely by hand" within the meaning of Heading 9701 .
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Aid granted by States - Recovery of illegal aid - Application of national law - Aid granted contrary to the procedural rules in Article 93 of the Treaty - Possible legitimate expectations of recipients - Protection - Conditions and limits - Interests of the Community to be taken into consideration

( EEC Treaty, first subparagraph of Art . 93(2 ) )

Summary

Community law does not preclude national legislation from protecting legitimate expectations and legal certainty in connection with the recovery of national aid granted contrary to Community law .

However, in view of the mandatory nature of the supervision of State aid by the Commission under Article 93 of the Treaty, undertakings to which an aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article .

It is true that a recipient of illegally granted aid is not precluded from relying on exceptional circumstances on the basis of which it had legitimately assumed the aid to be lawful and thus declining to refund that aid . If such a case is brought before a national court, it is for that court to assess the material circumstances and, if necessary, seek a preliminary ruling on interpretation from the Court of Justice .

However, a Member State whose authorities have granted aid contrary to the procedural rules laid down in Article 93 of the Treaty may not rely on the legitimate expectations of recipients in order to justify a failure to comply with the obligation to take the steps necessary to implement a Commission decision instructing it to recover the aid .

Nor may such a Member State rely, as making it absolutely impossible to implement such a decision, on the obligations to which the competent administrative authority is subject under the particular rules governing the protection of legitimate expectations contained in a national provision which lays down a time-limit within which an administrative act granting a benefit may be revoked . Such a provision must be applied in such a way that the recovery required by Community law is not rendered practically impossible and the interests of the Community are taken fully into consideration .
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Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Rules of a Member State permitting an objection to the marketing of products bearing the symbol ( R ) if the affixed trade mark has not been registered in that Member State - Application to products imported from another Member State - Not permissible - Justification - Consumer protection - Fair trading - None

( EEC Treaty, Art . 30 )

Summary

Article 30 of the EEC Treaty is to be interpreted as precluding the application of a national provision on unfair competition which enables an economic operator to obtain a prohibition in the territory of a Member State on the marketing of a product bearing the letter ( R ) in a circle next to the trade mark, if that trade mark is not registered in that State but in another .

In order to justify such a prohibition it is not possible to rely on the imperative requirements relating to consumer protection, since, assuming that consumers are misled, it can only be as to the place of registration of the trade mark, which is a secondary concern, and not as to the quality of the product, which is a prime concern, nor on the imperative requirements relating to fair trading, since, firstly, a prudent businessman with an interest in whether or not a trade mark is legally protected by virtue of registration can obtain precise information on that point, and, secondly, a person who registers a trade mark seeks, above all, to obtain that protection and the possibility of affixing a symbol indicating the existence of the protection is only ancillary thereto .
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Common Customs Tariff - Tariff headings - "Instruments and apparatus for measuring or checking electrical quantities" within the meaning of Heading 9030 of the Combined Nomenclature - Microprocessor-controlled analysis apparatus for chromatography - Excluded

Summary

The Combined Nomenclature in the Annex to Council Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that apparatus which measures or checks electrical quantities only for the purpose of collecting, evaluating and processing data in the field of chromatography does not fall within Heading 9030 . That heading covers only apparatus whose very function is to carry out such checks .
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1. Freedom of movement for persons - Right of entry and residence of nationals of Member States - Right conferred directly by the Treaty - Denial of recognition by the host Member State based on the absence of affiliation to the national social security scheme - Not permissible

(EEC Treaty, Arts 48, 52 and 59; Council Directives 68/360, Art. 4, and 73/148, Art. 6)

2. Freedom of movement for persons - Right of entry and residence of nationals of Member States - Issue of residence permit - Conditions - Requirement of prior registration in the national social security scheme - Not permissible

(Council Directives 68/360, Art. 4, and 73/148, Art. 6)

3. Freedom of movement for persons - Right of entry and residence of nationals of Member States - Issue of residence permit - Conditions - Pursuit of an economic activity - Classification according to the distinction between activities as an employed person and as a self-employed person - Irrelevance

(EEC Treaty, Arts 48 and 52)

4. Freedom of movement for persons - Right of entry and residence of nationals of Member States - Issue of residence permit - Refusal based on non-compliance with national social security rules - Not permissible

(Council Directives 64/221, 68/360 and 73/148)

Summary

1. The right of residence is a right conferred directly by the Treaty and is subject only to the carrying on of an economic activity within the meaning of Articles 48, 52 or 59 of the Treaty.

Accordingly, prior registration of a national of a Member State of the Community with a social security scheme established by the legislation of the host State cannot be imposed as a condition for obtaining the right of residence or for the issue of a corresponding residence permit, and registration with one social security scheme rather than another may justify neither a refusal to issue a residence permit nor a deportation order.

2. Article 4 of Directive 68/360 and Article 6 of Directive 73/148 preclude Member States from accepting only prior registration with a social security scheme as proof that the person concerned comes within one of the classes of persons entitled to freedom of movement for persons, and must therefore be issued with a residence permit.

3. Member States are obliged to issue a residence permit to a national of another Member State where it is not disputed that he is carrying on an economic activity, without there being any need in that respect to classify that activity as employment or activity as a self-employed person.

4. The issue of the residence permit recording the existence of a right conferred and guaranteed by the Treaty itself is of a declaratory nature only, and may be made subject only to the conditions expressly provided for by the applicable Community rules.

Accordingly, Member States are not permitted under Community rules on freedom of movement for persons to refuse to issue a residence permit to a Community national on the ground that he is not carrying on his activity in conformity with the social legislation in force.
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Agriculture - Common agricultural policy - Food aid - Implementation - Tendering procedure - System of securities - Delay in delivery - Penalty - Withholding of part of the delivery security at the time of its release - Withholding of part of the amount payable for the supply - Unlawful

(Commission Regulation (EEC) No 2200/87, Arts 18(2) and 22(2) )

Operative part

hereby:

(1) Annuls the Commission decision of 8 May 1989, notified by way of a routing slip dated 12 May 1989, to withold ECU 55 451.50 from the amount due to the applicant for a supply in respect of food aid;

(2) Orders the Commission to pay Haniel Spedition GmbH, Duisbourg, the sum of ECU 55 451.50 together with default interest from 12 May 1989 at the Commission' s normal rate;

(3) Orders the Commission to pay the costs.