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Judgment of the Court of 10 December 1991. - Commission of the European Communities v Kingdom of Spain. - Failure by a Member State to fulfil its obligations - Containers of liquids for human consumption - Transposition of a directive into national law. - Case C-192/90.



European Court reports 1991 Page I-05933

Pub.RJ Page Pub somm



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Member States - Obligations - Implementation of directives - Failure to fulfil obligations not contested

(EEC Treaty, Art. 169)

Parties

In Case C-192/90,

Commission of the European Communities, represented by Ricardo Gosalbo Bono, a member of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Spain, represented by Carlos Bastarreche Saguees, Director-General for Community Legal and Institutional Coordination, and Antonio Hierro Hernández-Mora, Abogado del Estado instructed to represent the Government before the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-5 Boulevard Emmanuel Servais,

defendant,

Application for a declaration that, by failing to communicate programmes for reducing the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, as provided for in Article 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption (Official Journal 1985 L 176, p. 18), and/or by failing to draw up such programmes, the Kingdom of Spain has failed to fulfil its obligations under the EEC Treaty,

THE COURT,

composed of: F.A. Schockweiler, President of Chamber, acting as the President of the Court, F. Grévisse and P.J.G Kapteyn (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, M. Díez de Velasco, M. Zuleeg and J.L. Murray, Judges,

(The grounds of the judgment are not reproduced.)

hereby:

Operative part

1. Declares that, by failing to draw up programmes for reducing the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, as provided for in Article 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption, the Kingdom of Spain has failed to fulfil its obligations under the EEC Treaty.

2. Orders the Kingdom of Spain to pay the costs.
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Common Customs Tariff - Tariff headings - Emulsifiers intended for pastry dough composed essentially of sorbitol syrup and monoglycerides and diglycerides - Exclusion from Chapter 38 as being mixtures containing substances with nutritive value - Classification under heading 2106 of the Combined Nomenclature

Summary

The Common Customs Tariff must be interpreted as meaning that emulsifiers intended for pastry dough and consisting essentially of sorbitol syrup (70% by dry weight) and mono- and diglycerides are, as "mixtures of chemical products and foodstuffs or other substances with nutritive value" within the meaning of note 1(6) of Chapter 38, excluded from that chapter and that they fall under heading 2106 of the Combined Nomenclature. The concept of "substances with nutritive value" must, in the light of a note of the Nomenclature Committee of the Customs Cooperative Council, be interpreted as capable of applying to chemical products.
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1. Freedom of movement for persons ° Freedom of establishment ° More than one centre of activity within the Community ° Auditors

(EEC Treaty, Art. 52)

2. Freedom of movement for persons ° Freedom to provide services ° Workers ° Auditors ° Access to the profession ° Restrictions justified in the general interest ° Whether permissible ° Conditions

(EEC Treaty, Arts 48 and 59)

Summary

1. The Treaty provisions on the right of establishment preclude a Member State from prohibiting a person from becoming established in its territory and practising as an auditor there on the grounds that that person is established and authorized to practise in another Member State.

2. Articles 48 and 59 of the Treaty do not preclude a Member State from making practice as an auditor within its territory by a person who is already authorized to practise as an auditor in another Member State subject to conditions which are objectively necessary for ensuring compliance with the rules of professional practice and which relate to a permanent infrastructure for carrying out the work, actual presence in that Member State and supervision of compliance with the rules of professional conduct, unless compliance with such rules and conditions is already ensured through an auditor, whether a natural or legal person, who is established and authorized in that State' s territory and in whose service the person who intends to practise as an auditor is employed for the duration of the work.
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Approximation of laws - Award procedures for public works contracts - Directive 71/305/EEC - Derogation from the common rules - Conditions - Existence of exceptional circumstances

(Council Directive 71/305, Art. 9(d))

Summary

Article 9(d) of Directive 71/305 concerning the coordination of procedures for the award of public works contracts permits, in exceptional circumstances, derogations from the common rules, in particular those on advertising. That provision does not, however, apply if sufficient time is available to the authorities awarding contracts to organize an accelerated award procedure such as that provided for in Article 15 of the directive.
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Tax provisions ° Harmonization of laws ° Turnover taxes ° Common system of value added tax ° Basis of assessment ° Sale of second-hand cars between taxable persons ° National system setting aside the basis of assessment under the Sixth Directive in favour of a minimum basis ° Not permissible

(Council Directive 77/388, Arts 11, 27 and 32)

Summary

The Sixth Council Directive on the harmonization of the laws of the Member States relating to turnover taxes is to be interpreted as precluding national legislation laying down, in respect of the sale of second-hand cars between taxable persons, a minimum basis of assessment for VAT which is different from that provided for by Article 11 of the directive, according to which the taxable amount is, in respect of supplies of goods, everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser.

Such legislation cannot be justified either by Article 32 of the directive, which does not cover sales of second-hand goods where, because such sales are between taxable persons who have been able to exercise the right to a deduction on capital goods, there is no risk of double taxation, or by Article 27 which, whilst authorizing special derogations in order to prevent certain types of tax evasion or avoidance, does not permit a general derogation from the rules of Article 11 such as the substitution of a minimum basis of assessment for the price agreed between the parties.
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1. Member States ° Obligations ° Cooperation in inquiries into failure by Member States to fulfil obligations

(EEC Treaty, Art. 5)

2. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° National rules requiring undertakings to purchase exclusively electronic cash registers comprising in their manufacture a fixed minimum value added in that country

(EEC Treaty, Art. 30)

Summary

1. The fact that a Member State fails to reply within a reasonable period to questions asked of it by the Commission within the scope of an inquiry intended to establish whether that State has failed to fulfil its obligations makes it more difficult for the Commission to carry out its tasks and therefore constitutes an infringement of the obligation to cooperate under Article 5 of the Treaty.

2. Domestic rules requiring undertakings to purchase exclusively electronic cash registers comprising in their manufacture value added on the national territory at least equal to a minimum set by those rules are contrary to Article 30 of the Treaty.
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1. Freedom of movement for persons ° Freedom of establishment ° Companies ° Directive 77/91 ° Change in the capital of a public limited liability company ° Direct effect of Article 25(1) of the directive ° National rules providing for the capital of a company in financial difficulties to be increased by administrative act ° Not permissible

(Council Directive 77/91, Arts 25 and 41(1))

2. State aid ° Prohibition ° Derogations ° Discretion of the Commission ° Limits

(EEC Treaty, Arts 92(1) and 93; Commission Decision 88/167)

Summary

1. Article 25(1) of the Second Directive 77/91 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, may be relied upon by individuals against the public authorities before national courts.

Article 25 in conjunction with Article 41(1) of that directive must be interpreted as meaning that they preclude national rules which, in order to ensure the survival and continued operation of undertakings which are of particular economic and social importance for society as a whole and are in exceptional circumstances by reason of their excessive debt burden, provide for the adoption by administrative act of a decision to increase the company capital, without prejudice to the right of pre-emption of the original shareholders when the new shares are issued.

2. The discretion conferred on the Commission by Article 93 of the Treaty in the field of State aid does not permit the Commission to authorize Member States to derogate from provisions of Community law other than those relating to the application of Article 92(l) of the Treaty. Consequently, a decision adopted by the Commission under Article 93 cannot be interpreted as authorizing the Member State to whom it is addressed to maintain in force, even if only provisionally, a national provision which is contrary to the Second Directive 77/91 on company law.
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Tax provisions ° Harmonization of laws ° Indirect taxes on the raising of capital ° Capital duty on capital companies ° Compulsory reduced rate in the event of the transfer by a company of one or more parts of a business ° Part of a business ° Definition

(Council Directive 69/335, Art. 7(1)(b))

Summary

A branch constitutes a part of a business within the meaning of Article 7(1)(b) of Directive 69/335 concerning indirect taxes on the raising of capital if it is an aggregate of assets and persons capable of contributing to the performance of a specified activity.
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1. Actions against Member States for failure to fulfil obligations ° Reasoned opinion ° Application originating proceedings ° Same arguments and pleas in law

(EEC Treaty, Art. 169)

2. Common Customs Tariff ° Temporary importation with relief from duties ° Travellers' personal effects ° Competence of the Member States to impose penalties for offences ° Limits ° Compliance with the principle of proportionality

(Council Regulation No 3599/82, Arts 2(2) and 19)

3. Actions against Member States for failure to fulfil obligations ° Evidence of the infringement ° Burden on the Commission

(EEC Treaty, Art. 169)

Summary

1. An application brought under Article 169 of the Treaty can be based only on the arguments and pleas in law already set out in the reasoned opinion.

2. In the absence of harmonization of Community legislation in the field of offences committed in the context of the Community temporary importation arrangements for travellers' personal effects, the Member States are competent to adopt such penalties as appear to them to be appropriate. When making use of that competence they are, however, required to comply with Community law and its general principles, and consequently, the principle of proportionality. In that respect, the administrative measures or penalties must not go beyond what is strictly necessary for the objectives pursued and the control procedures must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the Treaty.

3. Where, in proceedings based on Article 169 of the Treaty, the Commission requests the Court to declare that a Member State has failed to fulfil its obligations under the Treaty, it is for the Commission itself to adduce evidence of the alleged infringement.
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1. Procedure ° Reference to the Court on the basis of an arbitration clause ° Arbitration clause ° Definition ° Conferral of jurisdiction on the Court, as provided for in the Community regulations on the supply of products intended for food aid ° Inclusion

(EEC Treaty, Art. 181; Council Regulation No 3972/86; Commission Regulation No 2200/87, Art. 23)

2. Agriculture ° Common agricultural policy ° Food aid ° Implementation ° Tendering procedure ° Delayed delivery ° Penalty ° Deduction from the amount due for payment of supplies ° Unlawful ° Right, subject to waiver or time-limitation, to repayment and interest on the deductions

(Commission Regulation No 2200/87)

Summary

1. Pursuant to Regulation No 3972/86 on food-aid policy and food-aid management, such aid is supplied on the basis of contractual undertakings between the Commission and the successful tenderers. The relationship between successful tenderers and the Commission cannot be held to be governed entirely by regulatory provisions, particularly in view of the fact that the price of the supplies is a function of the tenderer' s bid and its acceptance by the Commission. Since the regulations forming the basis for a tendering procedure provide for supplies to be effected pursuant to Regulation No 2200/87 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid, a clause referred to in Article 23 of that regulation, whereby the Court is competent to judge any dispute resulting from the carrying out, or the failure to carry out, or from the interpretation of provisions concerning supply operations pursuant to the said regulation, forms an integral part of supply contracts and must therefore be regarded as an arbitration clause within the meaning of Article 181 of the Treaty.

2. Regulation No 2200/87 laying down general rules on the mobilization in the Community of products to be supplied as Community food aid does not allow the Commission to make deductions for late delivery from payment for the supply of food aid. The fact that, prior to the Court declaring such practice illegal, a tenderer did not object to the deductions made by the Commission may not serve as justification, in the absence of waiver or time-limitation, for a refusal to refund the deductions and pay interest as provided for in the said regulation.
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Common commercial policy ° Protection against dumping ° Interpretation of Community rules ° Anti-dumping duty ° Application of rates of anti-dumping duty individually assigned to exporters ° Export effected by an intermediary undertaking ° No effect

(Council Regulation No 374/87, Art. 1(3))

Summary

Article 1(3) of Regulation No 374/87 definitively collecting the provisional anti-dumping duty and imposing a definitive anti-dumping duty on imports of housed bearing units originating in Japan, which provides for the application of the individual rates of anti-dumping duty assigned to seven exporters listed by name and of a higher residual rate for other exporters, must be interpreted having regard not only to its wording but also to the context in which it occurs and the objects of the rules of which it is part. It may be seen from the basic regulation on protection against dumped or subsidized imports from countries not members of the European Economic Community that the amount of anti-dumping duties must not exceed the dumping margin and should be less if such lesser duty would be adequate to remove the injury. That principle, which is also embodied in Article 8 of the GATT Anti-Dumping Code, would be infringed if a higher anti-dumping duty were to be imposed on a product when it is exported by an intermediary undertaking than that applicable when the same product is exported to the Community market by the undertaking which has sold it to the intermediary undertaking. If in the latter case the duty prescribed was regarded as adequate to remove the injury, the application in the other case of a higher duty would be disproportionate to the objective sought.

Consequently Article 1(3) of Regulation No 374/87 must be interpreted as meaning that it is sufficient, for applying the individual rate of duty assigned to an exporter listed by name, that it should be proved that the housed bearing units presented for importation have been manufactured by or for that exporter.
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1. Acts of the institutions ° Choice of legal basis ° Criteria

2. Environment ° Waste disposal ° Directive intended to implement the principle that damage to the environment should be rectified at source ° Legal basis ° Article 130s of the Treaty ° Incidental effects on the functioning of the internal market ° No effect

(EEC Treaty, Arts 30, 100a, 130r(2) and 130s; Council Directive 91/156)

3. Procedure ° Intervention ° Application not made in support of the submissions of one of the parties ° Inadmissibility

(Statute of the Court of Justice of the EEC, Art. 37, third para.)

Summary

1. In the context of the organization of the powers of the Community, the choice of a legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and content of the measure.

2. Directive 91/156 on waste has the object of ensuring the management of waste, whether its origin is industrial or domestic, in accordance with the requirements of environmental protection. Whilst it is true that waste, whether recyclable or not, is to be regarded as goods the movement of which, in accordance with Article 30 of the Treaty, must in principle not be prevented, the directive in question cannot, for all that, be regarded as implementing the free movement of such products, since, on the contrary, it implements the principle that environmental damage should as a priority be rectified at source, a principle laid down by Article 130r(2) of the Treaty as a basis for action by the Community relating to the environment. Accordingly, the directive could be validly adopted on the sole basis of Article 130s of the Treaty.

The fact that some provisions of the directive affect the functioning of the internal market is not sufficient for Article 100a of the Treaty to apply. Recourse to that provision is not justified where, as in this case, the measure to be adopted has only the incidental effect of harmonizing market conditions within the Community.

3. According to the third paragraph of Article 37 of the Statute of the Court of Justice of the EEC, submissions made in an application for leave to intervene are to be limited to supporting the submissions of one of the parties. That condition is not satisfied where that sought by the intervener diverges from that sought by the party in support of whom the intervener purports to be intervening ° to the effect that the whole of the measure should be annulled ° in that the intervener seeks the annulment of only one of the provisions of the contested measure on grounds entirely unconnected with those relied on by the party in question.
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Agriculture ° Monetary compensatory amounts ° Sugar ° Calculation of the purity of syrups ° Method of determination ° Application of the prescribed method in cases of export refunds ° Procedures

(Commission Regulations No 394/70, Art. 13, and No 1800/83)

Summary

According to Annex I to Regulation No 1800/83 altering the monetary compensatory amounts, the level of monetary compensatory amounts on sugar depends on the sucrose content of the product. Note 4 to Annex I provides that, in the case of exports, the sucrose content, including other sugars expressed as sucrose, is to be determined in accordance with the provisions of Article 13 of Regulation No 394/70 on detailed rules for granting export refunds in the case of sugar exports. Paragraph 2 of that article must be interpreted as meaning that the percentage purity of a syrup is to be determined in accordance with the following procedure:

(a) the total sugar content of the syrup is measured by applying the copper reduction method to the inverted solution;

(b) the dry matter content of the inverted solution is determined by measuring the dry matter content of the original syrup by means of the areometric method and by adjusting the result so obtained in order to take into account any gain in the dry matter content resulting from the inversion of the syrup;

(c) the total sugar content of the inverted solution is divided by the dry matter content of the inverted solution and the result multiplied by one hundred.

However, where no inversion of the syrup is necessary in order to apply the copper reduction method, the percentage purity of the syrup is calculated by dividing the total sugar content of the syrup by its dry matter content and multiplying the result by one hundred.

Under Article 13 aforesaid, no method other than the copper reduction method (Lane and Eynon method) or the areometric method may be applied for determining the sugar content or the dry matter content of a syrup or its inverted solution.
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Approximation of laws ° Cosmetic products ° Packaging and labelling ° Directive 76/768 ° Exhaustive harmonization ° National legislation imposing obligations not provided for in the Directive ° Not permissible

(Council Directive 76/768, Art. 7(3))

Summary

Directive 76/768 on the approximation of the laws of the Member States relating to cosmetic products has provided exhaustively for the harmonization of national rules on the packaging and labelling of the products at issue. A Member State fails to fulfil its obligations under Directive 76/768, therefore, where its legislation exceeds the limits of the requirements laid down by Article 7(3) of the Directive regarding information, by making the marketing of cosmetic products subject to an obligation to maintain a file permanently at the disposal of the competent authorities, containing information on the nature of the product, the way in which it was manufactured and tested, its use and method of application, and on the clinical trials conducted in order to ascertain its toxicity and its tolerance by the human body.