ddrg/super_eurlex huggingface dataset:
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1. International agreements – EEC-Turkey Association Agreement – Association Council established by the EEC-Turkey Association Agreement – Decision No 1/80 – Family reunification

(Additional Protocol to the EEC-Turkey Association Agreement, Art. 59; Decision No 1/80 of the EEC-Turkey Association Council , Arts 7, first para., and 14(1))

2. International agreements – EEC-Turkey Association Agreement – Association Council established by the EEC-Turkey Association Agreement – Decision No 1/80 – Limitations of rights on grounds of public policy, public security or public health

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 14(1))

Summary

1. A Turkish national, who was authorised while he was a child to enter the territory of a Member State in order to join his family and who has acquired the right of free access to any paid employment of his choice under the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council, loses the right of residence in the host Member State which is a corollary of that right of free access only in two situations, that is:

- where his presence in the territory of the host Member State constitutes, by reason of his personal conduct, a genuine and serious danger to public policy, public security or public health within the meaning of Article 14(1) of that decision, or

- if he leaves the territory of the Member State concerned for a significant length of time without legitimate reason

even though he is over 21 years of age, is no longer dependent on his parents, but lives independently in the Member State concerned, and was not available to join the labour force for several years because he was during that period serving an unsuspended sentence of imprisonment.

That interpretation is not incompatible with the requirements of Article 59 of the Additional Protocol to the Association Agreement, according to which Turkey may not receive more favourable treatment than that applicable between Member States.

(see para. 21, operative part 1)

2. Article 14 of Decision No 1/80 of the EEC-Turkey Association Council, authorising limitations on the rights conferred by that decision which are justified on grounds of public policy, public security or public health, must be interpreted as not precluding the taking of an expulsion measure against a Turkish national who has been the subject of several criminal convictions, provided that his behaviour constitutes a genuine and sufficiently serious threat to a fundamental interest of society. It is for the national court to determine whether that is the case.

(see para. 39, operative part 2)
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Operative part

On those grounds, the Court (Eighth Chamber) hereby:

1. Declares that, by failing to communicate the plans and outlines required under Article 11 of Council Directive 96/59 /EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), the Republic of Malta has failed to fulfil its obligations under Article 11 of the Directive, read in conjunction with Article 54 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded;

2. Orders the Republic of Malta 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 – Jurisdiction in insurance matters

(Council Regulation No 44/2001, Arts 9(1)(b) and 11(2))

Summary

The reference in Article 11(2) of Regulation No 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters to Article 9(1)(b) of that regulation must be interpreted as permitting the injured party to bring an action directly against the insurer before the courts for the place in a Member State where that injured party is domiciled, provided that a direct action is permitted and the insurer is domiciled in a Member State. Such reference leads to a widening of the scope of the rule of jurisdiction of the courts for the place where the plaintiff is domiciled laid down by Article 9(1)(b) of the said regulation to categories of plaintiff acting against the insurer other than the policy holder, the insured or the beneficiary of the insurance contract, without moreover, the nature of the direct action by the injured party against the insurer in national law being of relevance for such application. That interpretation is also based on the purpose of the regulation, which aims to guarantee more favourable protection to the weaker party than the general rules of jurisdiction laid down by Regulation No 44/2001 provide for.

(see paras 26, 28, 30-31, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive – Exemption of the leasing and letting of immovable property

(Council Directive 77/388, Art. 13B(b))

Summary

Article 13B(b) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted to mean that the grant for consideration, under a contract of let for a period of 10 years, of the right to fish, by the landowner in waters owned by that person, and by the holder of fishing rights in publicly owned waters, does not constitute either a leasing or a letting of immovable property, inasmuch as that grant does not confer the right to occupy the immovable property concerned and to exclude any other person from it.

(see para. 23, operative part)
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1. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Scope

(Art. 141 EC; Council Directive 2000/78)

2. Social policy – Equal treatment in employment and occupation – Directive 2000/78

(Council Directive 2000/78, Arts 1 and 2)

Summary

1. A survivor’s benefit falls within the scope of Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation where that benefit is paid under an occupational pension scheme managed by a pension fund for a particular category of workers, where that scheme originates in a collective agreement which is designed to supplement the social security benefits payable under national legislation of general scope, where that scheme is financed exclusively by the workers and employers of the sector concerned, without any financial involvement by the State, and is aimed, according to that agreement, at that category of workers, and where the amount of the benefit concerned is determined by reference to the period of membership of the worker who was the partner of the entitled recipient and to the total amount of the contributions paid by that worker.

Such a benefit must therefore be classified as pay within the meaning of Article 141 EC and that conclusion is not affected by the fact that the pension fund is a public body or by the fact that membership in the scheme giving entitlement to the survivor’s benefit is compulsory.

(see paras 49-51, 53-57, 61, operative part 1)

2. The combined provisions of Articles 1 and 2 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation preclude legislation under which, after the death of his life partner, the surviving partner does not receive a survivor’s benefit equivalent to that granted to a surviving spouse, even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for under the occupational pension scheme managed by the pension fund concerned.

(see paras 69, 73, operative part 2)
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Free movement of goods

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Quantitative restrictions

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Measures having equivalent effect (Arts 28 EC and 30 EC) (see paras 52-69, operative part

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Infringement of Articles 28 EC and 30 EC – National law imposing a de facto obligation for economic operators wishing to market in Belgium construction products lawfully produced and/or marketed in another Member State to obtain Belgian marks of conformity in order to market those products in Belgium.

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The Court:

1. Declares that, by encouraging economic operators wishing to market in Belgium construction products lawfully manufactured and/or marketed in another Member State to obtain Belgian marks of conformity, the Kingdom of Belgium has failed to fulfil its obligations under Articles 28 EC and 30 EC;

2. Orders the Kingdom of Belgium to pay the costs.
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Approximation of laws – Protection of consumers in respect of contracts negotiated away from business premises – Directive 85/577

(Council Directive 85/577, Arts 4 and 5(1))

Summary

Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises must be interpreted as meaning that the national legislature is entitled to provide that the right of cancellation laid down in Article 5(1) of the directive may be exercised no later than one month from the time at which the contracting parties have performed in full their obligations under a contract for long-term credit, where the consumer has been given defective notice concerning the exercise of that right.

(see para. 49, operative part)
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Agriculture – Uniform legislation – Maximum residue limits of veterinary medicinal products in foodstuffs of animal origin – Determination procedure – Regulation No 2377/90

(Council Regulation No 2377/90, Annex II; Commission Regulation No 1873/2003; Council Directive 96/22)

Summary

Having regard both to the extent of the Commission’s discretion and to all the factual circumstances in light of which Regulation No 1873/2003 amending Annex II to Regulation No 2377/90 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin was adopted, it does not appear that the approach followed by the Commission, by restricting inclusion of progesterone in Annex II to that regulation to a specific method of administration, taking account both of considerations of protection of human health and of requirements based on the principle of proportionality, disregarded the limits of the Commission’s discretion.

Although it is true that Article 3 of Regulation No 2377/90 does not expressly provide for the possibility of including a substance in Annex II thereto for only some of its methods of administration, that fact cannot prevent the Commission from nevertheless making such an inclusion. That approach may appear particularly appropriate where, on the one hand, the substance in question cannot be included in Annex I or III to that regulation, but where, on the other, certain limitations on the methods of administration of that substance can make it possible to ensure that the presence of residues in animal tissue does not constitute a risk for human health, so that a total prohibition on marketing that substance following its inclusion in Annex IV to that regulation would be disproportionate.

That conclusion is in no way called into question by the provisions of Directive 96/22 concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of Beta-agonists, as amended by Directive 2003/74, which allow Member States to authorise the administration of progesterone by intramuscular injection. The conditions under which Article 4 of that directive allows Member States to authorise the administration of progesterone to farm animals include that of compliance with the requirements relating to placing on the market laid down in Directive 81/851, which was repealed subsequently by Directive 2001/82 on the Community code relating to veterinary medicinal products. That provision, read in conjunction with Article 6 of Directive 2001/82, permits Member States to authorise administration of progesterone to farm animals only if that substance is included in Annex I, II or III to Regulation No 2377/90 in accordance with the provisions thereof.

(see paras 31, 34, 42-43, 45)
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1. Social policy – Protection of the safety and health of workers – Organisation of working time – Right to paid annual leave

(European Parliament and Council Directive 2003/88, Art. 7(1))

2. Social policy – Protection of the safety and health of workers – Organisation of working time – Right to paid annual leave

(European Parliament and Council Directive 2003/88, Art. 7(1))

3. Social policy – Protection of the safety and health of workers – Organisation of working time – Right to paid annual leave

(European Parliament and Council Directive 2003/88, Art. 7(2))

Summary

1. Article 7(1) of Directive 2003/88 concerning certain aspects of the organisation of working time must be interpreted as not precluding national legislation or practices according to which a worker on sick leave is not entitled to take paid annual leave during that sick leave.

Nor does Directive 2003/88 preclude national legislation or practices which allow a worker on sick leave to take paid annual leave during that sick leave.

It is for the Member States to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, by prescribing the specific circumstances in which workers may exercise the right, without making the very existence of that right, which derives directly from that directive, subject to any preconditions whatsoever.

(see paras 28, 31-32, operative part 1)

2. Article 7(1) of Directive 2003/88 concerning certain aspects of the organisation of working time must be interpreted as meaning that it precludes national legislation or practices which provide that the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law even where the worker has been on sick leave for the whole or part of the leave year and where his incapacity for work persisted until the end of his employment relationship, which was the reason why he could not exercise his right to paid annual leave.

(see paras 49, 52, operative part 2)

3. Article 7(2) of Directive 2003/88 concerning certain aspects of the organisation of working time must be interpreted as precluding national legislation or practices which provide that, on termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has been on sick leave for the whole or part of the leave year and/or of a carry-over period, which was the reason why he could not exercise his right to paid annual leave.

For the calculation of the allowance in lieu, the worker’s normal remuneration, which is that which must be maintained during the rest period corresponding to the paid annual leave, is also decisive.

(see para. 62, operative part 3)
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1. Approximation of laws – Medicinal products – Marketing authorisation – Application for mutual recognition

(European Parliament and Council Directive 2001/83, Arts 10(1), 28 and 29)

2. Approximation of laws – Medicinal products – Marketing authorisation – Application for mutual recognition

(European Parliament and Council Directive 2001/83, Arts 10(1), 28 and 29)

Summary

1. Article 28 of Directive 2001/83 on the Community code relating to medicinal products for human use precludes a Member State to which an application is made for mutual recognition of a marketing authorisation of a medicinal product for human use granted by another Member State under the abridged procedure provided for in Article 10(1)(a)(iii) of that directive from refusing that application on the ground that the medicinal product in question is not essentially similar to the reference product.

It is clear from the wording of Article 28(4) of Directive 2001/83 that the existence of a risk to public health, within the meaning of Article 29(1) of that directive, constitutes the only ground that a Member State is entitled to rely on to object to the recognition of a marketing authorisation granted by another Member State. In addition, a Member State wishing to rely on such a ground is required to comply with a specifically prescribed procedure for provision of information, concerted action, and arbitration laid down in Article 29 of Directive 2001/83.

(see paras 28, 33, operative part 1)

2. If, however, a Member State is not called upon to make any legislative choices and has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach of Community law. Article 28 of Directive 2001/83, on the Community code relating to medicinal products for human use, confers on the Member State in receipt of an application for mutual recognition only a very limited discretion in relation to the reasons for which that Member State is entitled to refuse to recognise the marketing authorisation in question. In particular, as regards any assessment going beyond the verification of the validity of the application with regard to the conditions laid down in Article 28, the Member State concerned, except where there is a risk to public health, must rely on the assessments and scientific evaluations carried out by the reference Member State.

Thus, the failure on the part of a Member State to recognise, pursuant to Article 28, a marketing authorisation of a medicinal product for human use granted by another Member State under the abridged procedure provided for in Article 10(1)(a)(iii) of that directive, on the ground that the relevant medicinal product either is not essentially similar to the reference product or belongs to a category of medicinal products for which the Member State concerned has a general policy which does not allow it to be considered as essentially similar, constitutes a sufficiently serious breach of Community law, capable of rendering that Member State liable in damages.

(see paras 38, 41, 46, operative part 2)
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1. Approximation of laws – Medical devices – Directive 93/42

(Council Directives 93/36, as amended by Directive 2001/78, Art. 8(2), and 93/42, as amended by Regulation No 1882/2003, Arts 8, 17 and 18)

2. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Presumptions – Not permissible – Failure to fulfil obligations arising from an administrative practice contrary to Community law

(Art. 226 EC)

Summary

1. Contracting authorities which have issued an invitation to tender for the supply of medical devices bearing the CE marking cannot reject, on grounds of protection of public health, the tender in respect of such products, directly and without following the safeguard procedure provided for in Articles 8 and 18 of Directive 93/42 concerning medical devices, as amended by Regulation No 1882/2003. If a contracting authority considers that the tender in respect of medical devices bearing the CE marking may compromise public health, it is required to inform the competent authority with a view to setting that safeguard procedure in motion.

In that context, a practice of the contracting authorities, which demonstrates a certain degree of consistency and generality, consisting of rejecting tenders in respect of medical devices bearing the CE certification marking, without the procedure provided for in Directive 93/42 being respected amounts to a failure on the part of a Member State to fulfil its obligations under Article 8(2) of Directive 93/36 coordinating procedures for the award of public supply contracts, as amended by Directive 2001/78, and Articles 17 and 18 of Directive 93/42.

(see paras 43, 53, 56)

2. In proceedings under Article 226 EC for failure to fulfil obligations, in order for a failure to fulfil obligations to be found on the basis of the administrative practice followed in a Member State, the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice; that practice must be, to some degree, of a consistent and general nature; and, in order to find that there has been a general and consistent practice, the Commission may not rely on any presumption.

Where the Commission has adduced sufficient evidence to show that a Member State’s authorities have developed a repeated and persistent practice which is contrary to the provisions of a directive, it is incumbent on that Member State to challenge in substance and in detail the information thus produced and the consequences flowing therefrom.

(see paras 48, 54)
1.

Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose into national law Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise as regards the Provinces of Burgenland, Carinthia, Upper Austria, Salzburg, Styria and Tyrol, the Republic of Austria has failed to fulfil its obligations under Article 14(1) of that directive;
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European Union law – Direct effect – Primacy – National legislation concerning a public monopoly on bets on sporting competitions

(Arts 43 EC and 49 EC)

Summary

By reason of the primacy of directly-applicable EU law, national legislation concerning a public monopoly on bets on sporting competitions which, according to the findings of a national court, comprises restrictions incompatible with the freedom of establishment and the freedom to provide services, because those restrictions do not contribute to limiting betting activities in a consistent, systematic manner, may not continue to apply during a transitional period.

Rules of national law, even of a constitutional order, may not be allowed to undermine the unity and effectiveness of EU law.

Even if considerations similar to those concerning the maintenance of the effects of an EU measure annulled or declared invalid, the purpose of which is to prevent a legal vacuum from arising before a new measure replaces the measure thus annulled or declared invalid, were capable of leading, by analogy and by way of exception, to a provisional suspension of the ousting effect which a directly-applicable rule of EU law has on national law contrary thereto, such a suspension, the conditions of which could be determined solely by the Court of Justice, must be excluded from the outset in the absence of overriding considerations of legal certainty capable of justifying the suspension.

(see paras 61, 66-67, 69 and operative part)