ddrg/super_eurlex huggingface dataset:
Case C-470/99





Universale-Bau AG

and

Bietergemeinschaft:

Hinteregger & Söhne Bauges.mbH Salzburg,

ÖSTÜ-STETTIN Hoch- und Tiefbau GmbH



v

Entsorgungsbetriebe Simmering GmbH





(Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien)

«(Directive 93/37/EEC – Public works contracts – Definition of contracting authority – Body governed by public law – Restricted procedure – Rules for weighting of criteria for selecting candidates invited to tender – Advertisement – Directive 89/665/EEC – Review procedures relating to public procurement – Time-limits for review)»

Opinion of Advocate General Alber delivered on 8 November 2001 I - 0000

Judgment of the Court (Sixth Chamber), 12 December 2002 I - 0000

Summary of the Judgment

1.. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Contracting authorities – Body governed by public law – Definition – Body which was not established to satisfy specific needs in the general interest not having an industrial or commercial character, but in the meantime satisfying such needs – Covered

(Council Directive 93/37, Art. 1(b), second subpara.)

2.. Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Time-limit for contesting decisions of contracting authorities and for raising any allegedly unlawful measures – Whether permissible

(Council Directive 89/665)

3.. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Restricted procedure – Rules laid down in advance for weighting the criteria for selecting the candidates invited to tender – Publication required

(Council Directive 93/37)

1.

2.

3.
Case C-387/99

Commission of the European Communities

v

Federal Republic of Germany

(Failure of a Member State to fulfil obligations – Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) – Directive 65/65/EEC – Food preparations containing three times more vitamins than the recommended daily amount – Preparations lawfully marketed as food supplements in the Member State of exportation – Preparations classified as medicinal products in the Member State of importation – ‘Medicinal product’ – Obstacle – Justification – Public health – Proportionality – Admissibility of the application)

Summary of the Judgment

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Administrative practice classifying as medicinal products certain vitamin preparations containing three times more than the recommended daily amount – Justification – Protection of public health – Absence – Requirement for detailed assessment on a case-by-case basis

(EC Treaty, Arts 30 and 36 (now, after amendment, Arts 28 EC and 30 EC; Council Directive 65/65, Art. 1)

A Member State has failed to fulfil its obligations under Article 30 of the Treaty (now, after amendment, Article 28 EC) when it automatically classifies as medicinal products vitamin preparations lawfully manufactured or marketed as food supplements in other Member States where they contain three times more vitamins, other than vitamins A and D, than the daily amount recommended by the national food association.

Since such a classification, which is based solely on the recommended daily amount, does not fully satisfy the requirement for a classification on the basis of the pharmacological properties of each vitamin preparation and, consequently, it does not necessarily follow that all preparations concerned come within the definition of a ‘function’ medicinal product for the purposes of Directive 65/65 relating to proprietary medicinal products, that practice creates a barrier to trade, in so far as vitamin preparations lawfully marketed or produced in other Member States as food supplements cannot be marketed in the Member State in question until they have been subject to the marketing authorisation procedure for medicinal products.

That practice cannot be justified for reasons of protection of the health and life of humans referred to in Article 36 of the Treaty (now, after amendment, Article 30 EC), since it does not make a distinction by reference to the different vitamins added or, in particular, to the level of risk to public health which their addition could entail and, consequently, the automatic nature of that practice does not make it possible to identify and assess a real risk to public health, which requires a detailed assessment on a case-by-case basis of the effects which the addition of the vitamins in question could entail.

(see paras 62, 65, 78-79, 83, operative part)
Case C-197/99 P





Kingdom of Belgium

v

Commission of the European Communities





«(Appeal – ECSC Treaty – State aid – Fifth Steel Aid Code – Commission Decision 97/271/ECSC prohibiting certain financial assistance to a steel undertaking – Article 33 of the ECSC Treaty – Infringement)»

Opinion of Advocate General Léger delivered on 6 December 2001

Judgment of the Court (Sixth Chamber), 11 September 2003

Summary of the Judgment

1.. Acts of the institutions – Statement of reasons – Obligation – Scope – ECSC Decision

(Art. 15 CS)

2.. Procedure – Grounds of judgments – Scope

3.. ECSC – Steel aid – Commission Decision – Legality to be assessed in the light of the information available when the decision was adopted – Member State granting the aid and the recipient thereof to be diligent as regards the communication of all relevant information

(General Decision No 3855/91, Art. 6(4))

4.. Appeal – Grounds – Review by the Court of the appraisal of the evidence – Not possible except where the sense has been distorted

1.

2.

3.

4.
Keywords

Summary



Keywords

Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Deduction of input tax - Refund of excess - Refund by the issue of Government bonds - Not permissible

(Council Directive 77/388, Arts 17 and 18(4))

Summary

$$A Member State which provides for the refund of excess VAT by the issue of Government bonds to a category of taxable persons whose tax position is in credit fails to fulfil its obligations under Articles 17 and 18 of Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes.

The conditions for a refund that a Member State sets under Article 18(4) of the Sixth Directive must enable the taxable person, in appropriate conditions, to recover the entirety of the credit arising from that excess tax, which implies that the refund is carried out within a reasonable period of time by a payment in liquid funds or equivalent means; the method of refund adopted must not, in any event, entail any financial risk for the taxable person.

( see paras 34, 39 and operative part )
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Keywords

1. 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 by the reasoned opinion

(Art. 226 EC)

2. Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification - Not permissible

(Art. 226 EC)
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Summary



Keywords

Approximation of laws - Interconnection of telecommunications networks - Directive 97/33 - Obligation imposed ex ante by the national authorities on an operator having significant power on the market to allow other operators access to the local subscriber loop and offer them interconnection at local and higher-level switching centres - Permissibility

(Parliament and Council Directive 97/33, Arts 4(2) and 9(2))

Summary

$$Articles 4(2) and 9(2) of Directive 97/33 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) must be interpreted as not precluding the Member States from authorising national regulatory authorities to impose on an operator having significant power on the market the ex ante obligation to allow other operators access to the local subscriber loop and offer them interconnection at local and higher-level switching centres.

( see para. 37 and operative part )
Keywords

Summary



Keywords

1. Acts of the institutions - Directives - Implementation by Member States - Need to ensure the effective application of directives - Obligations of the national courts

(EC Treaty, Art. 189, third para. (now Art. 249, third para., EC))

2. Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Direct life assurance - Directive 92/96 - Information to be given to the policy holder - National legislation requiring a warning that the cancellation, reduction or surrender of an existing assurance policy for the purpose of subscribing to another policy is generally detrimental - Not permissible

(Council Directive 92/96, Art. 31(3))

Summary

1. Even if, in the absence of proper transposition into national law, a directive cannot of itself impose obligations on individuals, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty (now the third paragraph of Article 249 EC).

( see para. 18 )

2. Article 31(3) of Directive 92/96 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267 and 90/619 (third life assurance Directive) precludes national legislation which provides that a life-assurance proposal, or in the absence of a proposal, a life-assurance policy must inform the policy-holder that cancellation, reduction or surrender of an existing life-assurance contract for the purpose of subscribing to another life-assurance policy is generally detrimental to the policy-holder. The additional information Member States may require in accordance with that article must be clear, accurate and necessary for a proper understanding of the essential characteristics of assurance products proposed to the policy-holder. Information as vague and general as that given by such a warning does not satisfy those requirements.

( see paras 24-25, 30-31, operative part )
Keywords

Summary



Keywords

Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Extra conditions capable of being imposed by the Member States - Bodies managed and administered on a voluntary basis - Meaning

(Council Directive 77/388, Art. 13A(2)(a), second indent)

Summary

$$On a proper construction of the second indent of Article 13A(2)(a) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, the condition requiring a body to be managed and administered on an essentially voluntary basis, the purpose of which is to reserve the benefit of the exemption for bodies which do not have the making of profits for members as their objective, refers only to members of that body who are designated in accordance with its constitution to direct it at the highest level, as well as other persons who, without being designated by the constitution, do in fact direct it in that they take the decisions of last resort concerning the policy of that body, especially in the financial area, and carry out the higher supervisory tasks.

In addition, the words on an essentially voluntary basis refer to the members who compose the organs entrusted with the management and administration of a body of the kind referred to in that provision and those persons who, without being designated by the constitution, do in fact direct it, and refer also to the reward which the latter may receive, habitually or exceptionally, from that body.

( see paras 17-18, 23, 26, 28, operative part 1-2 )
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Summary



Keywords

Approximation of laws - Trade marks - Directive 89/104 - Right for the owner of a registered trade mark to contest its use by a third party - Use for descriptive purposes and excluding an indication of the origin of the goods - No right of opposition

(Council Directive 89/104, Art. 5(1))

Summary

$$Article 5(1) of First Council Directive 89/104 on trade marks is to be interpreted as meaning that the proprietor of a trade mark cannot rely on his exclusive right where a third party, in the course of commercial negotiations, reveals that goods are produced by him and use the trade mark in question solely to denote the particular characteristics of the goods he is offering for sale so that there can be no question of the trade mark used being interpreted as referring to the undertaking of origin of the goods.

In a situation, the use of the trade mark does not infringe any of the interests which Article 5(1) is intended to protect.

( see paras 16-17, operative part )
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Summary



Keywords

Approximation of laws - Trade marks - Directive 89/104 - Parallel importation, after repackaging and reaffixing of the trade mark, of pharmaceutical products into another Member State - Opposition by the trade mark owner - Permissibility - Condition - No artificial partitioning of the markets between Member States - Criteria of assessment - Prior notice to the trade mark owner - Scope of the duty

(Council Directive 89/104, Art. 7(2))

Summary

$$Article 7(2) of First Council Directive 89/104 relating to trade marks must be interpreted as meaning that a trade mark proprietor may rely on its trade mark rights in order to prevent a parallel importer from repackaging pharmaceutical products unless the exercise of those rights contributes to artificial partitioning of the markets between Member States. Where a proprietor relies on its trade mark rights to prevent repackaging where that is necessary for the pharmaceutical products concerned to be marketed in the importing State, that contributes to such artificial partitioning.

Replacement packaging of pharmaceutical products, rather than simply sticking labels on those packages, is objectively necessary if, without such repackaging, effective access to the market concerned, or to a substantial part of that market, must be considered to be hindered as the result of strong resistance from a significant proportion of consumers to relabelled pharmaceutical products.

A parallel importer must, in any event, in order to be entitled to repackage trade-marked pharmaceutical products, fulfil the requirement of prior notice. If the parallel importer does not satisfy that requirement, the trade mark proprietor may oppose the marketing of the repackaged pharmaceutical product. It is incumbent on the parallel importer himself to give notice to the trade mark proprietor of the intended repackaging. In the event of dispute, it is for the national court to assess, in the light of all the relevant circumstances, whether the proprietor had a reasonable time to react to the intended repackaging.

( see paras 35, 45, 54, 68, operative part 1-3 )
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Summary



Keywords

Environment - Conservation of wild birds - Directive 79/409 - Classification as a special protection area after implementation of Directive 92/43 - Effects

(Council Directives 79/409, Art. 4(4) and 92/43, Arts 6(2) and 7)

Summary

$$The Owenduff-Nephin Beg Complex was classified as a special protection area in October 1996 and thus it is Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, rather than the first sentence of Article 4(4) of Directive 79/409 on the conservation of wild birds, that applies to the area. In so far as concerns land classified as a special protection area, Article 7 of Directive 92/43 provides that the obligations arising under the first sentence of Article 4(4) of Directive 79/409 are replaced, inter alia, by the obligations arising under Article 6(2) of Directive 92/43 as from the date of implementation of the latter directive or the date of classification under Directive 79/409, where the latter date is later.

( see para. 25 )
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Summary



Keywords

1. Procedure — Application initiating proceedings — Procedural requirements — Statement of the subject-matter of the proceedings — Summary of the pleas in law relied upon — (Rules of Procedure of the Court, Art. 38(1)(c))

2. Agriculture — EAGGF — Clearance of accounts — Disallowance of expenditure arising from irregularities in the application of the Community rules — Not possible to establish conclusive factual data except by impartial checks — Conditions under which other evidence may be allowed

3. Agriculture — Common organisation of the markets — Cereals — Durum wheat — System of securities — Conditions governing release of the security — All the primary requirements must be fulfilled — Possibility of derogating explicitly and on special grounds from that principle — (Commission Regulations No 2220/85, Art. 21, and No 2668/94, Art. 11(2), second para., and (4))

Summary

1. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice, and from the case-law relating to that provision, that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the basic legal and factual particulars on which a case is based to be indicated coherently and intelligibly in the application itself.

see paras 6, 40, 48

2. In the context of the clearance of the accounts of the Member States in respect of expenditure financed by the EAGGF, conclusive factual data cannot normally be established except by impartial checks carried out by independent persons such as the CCIA. It is only where the Member State concerned succeeds in showing that those findings are incorrect that other evidence may be allowed.

see para. 14

3. Since Article 21 of Regulation No 2220/85 laying down common detailed rules for the application of the system of securities for agricultural products provides generally that release of the security is conditional upon all the primary requirements being fulfilled, the specific regulation, Regulation No 2668/94, authorising the Italian intervention agency to put up for sale by tender 148 000 tonnes of durum wheat for export in the form of durum wheat meal to Algeria, cannot derogate from that principle unless it does so explicitly and on special grounds. That is not the case as regards the second subparagraph of Article 11(2) of Regulation No 2668/85 in its original version, pursuant to which release of the security is conditional only on arrival of the goods in Algeria, since Article 11(4) of that regulation provides that payment of the purchase price is the primary requirement and thus makes a clear reference to Regulation No 2220/85.

see para. 30
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Summary



Keywords

Freedom of movement for persons — Workers — Equal treatment — Remuneration — Income tax — National rules on the avoidance of double taxation excluding taxpayers from entitlement to a tax concession because they have received income in another Member State which was taxed in that State without taking into account their personal and family circumstances — Not permissible — Conditions governing the taking into account of such circumstances — Requirements of Community law — None — Limits — (EC Treaty, Art. 48 (now, after amendment, Art. 39 EC))

Summary

Article 48 of the Treaty (now, after amendment, Article 39 EC) precludes national rules ─ irrespective of whether or not they are laid down in a convention for the avoidance of double taxation ─ whereby a taxpayer forfeits, in the calculation of the income tax payable by him in his State of residence, part of the tax-free amount of that income and of his personal tax advantages because, during the year in question, he also received income in another Member State which was taxed in that State without his personal and family circumstances being taken into account.

Moreover, Community law contains no specific requirement with regard to the way in which the State of residence must take into account the personal and family circumstances of a worker who, during a particular tax year, received income in that State and in another Member State, except that the conditions governing the way in which the State of residence takes those circumstances into account must not constitute discrimination, either direct or indirect, on grounds of nationality, or an obstacle to the exercise of a fundamental freedom guaranteed by the Treaty.

see paras 110, 115, operative part 1-2
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Summary



Keywords

Convention on Jurisdiction and the Enforcement of Judgments — Special jurisdiction — Court for the place of performance of the contractual obligation — Contract of employment — Place where the employee habitually carries out his work — Determination — Employee having successively concluded two contracts with two different employers, the first contract being suspended during the performance of the second — Dispute between the employee and the first employer — (Brussels Convention of 27 September 1968, Article 5(1), as amended by the Accession Conventions of 1978, 1982 and 1989)

Summary

Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, must be interpreted as meaning that, in a dispute between an employee and a first employer, the place where the employee performs his obligations to a second employer can be regarded as the place where he habitually carries out his work when the first employer, with respect to whom the employee ' s contractual obligations are suspended, has, at the time of the conclusion of the second contract of employment, an interest in the performance of the service by the employee to the second employer. The existence of such an interest must be determined on a comprehensive basis, taking into consideration all the circumstances of the case.

When such an interest is lacking on the part of the first employer, Article 5(1) of the Brussels Convention must be interpreted as meaning that the place where the employee carries out his work is the only place of performance of an obligation which can be taken into consideration in order to determine which court has jurisdiction.

see paras 26, 28, 30, operative part 1-2