ddrg/super_eurlex huggingface dataset:
Case C-170/03

Staatssecretaris van Financiën

v

J.H.M. Feron

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(Regulation (EEC) No 918/83 – Relief from customs duties – Meaning of ‘personal property’ and ‘possession’ – Motor vehicle made available to a person by his employer)

Opinion of Advocate General Poiares Maduro delivered on 19 May 2004

Judgment of the Court (First Chamber), 17 March 2005.

Summary of the Judgment

Common Customs Tariff – Relief from import duty – Concept of personal property – Passenger vehicle made available to a natural person by his employer and used for both business and private purposes – Included

(Council Regulation No 918/83, Arts 1(2)(c), 2 and 3)

Articles 1(2)(c), 2 and 3 of Regulation No 918/83 setting up a Community system of reliefs from customs duty must be interpreted as meaning that a passenger vehicle which is made available to a natural person by his employer and is used by that person for both business and private purposes may be regarded as an item of personal property capable of benefiting from a relief from customs duty under Articles 2 and 3 of that regulation.

A combined reading of those provisions shows that, in order to qualify for relief from customs duty, the item of personal property must in particular have been in the possession of, and used by, the person concerned, as personal property, for at least six months before the date on which he ceased to have his normal place of residence in the country of origin.

First, in the absence of an express provision to that effect, exclusive personal use cannot be considered necessary in all circumstances for an item of property to be regarded as personal property, so that a passenger vehicle used both for private and business purposes must be capable of being regarded as such an item of personal property.

Secondly, the term ‘possession’ in Article 3 of the regulation implies that the relief need not be limited to property forming part of the assets of the person concerned for at least six months before his transfer of residence but also concerns other assets over which the person concerned exercises, effective and genuine control throughout the same period.

(see paras 14, 21-22, 27, 29, 32, operative part)
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Transport – Road transport – Social legislation – Exceptions – Requirement to install and use a tachograph – Exceptions for vehicles carrying material and equipment – Meaning – Goods which are required for the performance of the work involved in the main activity of the driver – Main activity which is not driving the vehicle – Included

(Council Regulations No 3820/85, Art. 13(1)(g), and No 3821/85, Art. 3(2))

Summary

The terms ‘material or equipment’ in Article 13(1)(g) of Regulation No 3820/85 on the harmonisation of certain social legislation relating to road transport must, in the context of the exemption scheme provided for in Article 3(2) of Regulation No 3821/85 on recording equipment in road transport, be construed as covering not only ‘tools and instruments’, but also the goods, such as building materials or cables, which are required for the performance of the work involved in the main activity of the driver of the vehicle concerned. Such an activity, which for the purposes of Article 13(1)(g) cannot consist of driving the vehicle, must constitute the main activity of that driver and not that of the undertaking concerned.

(see paras 16, 24, operative part)
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1. Social policy — Male and female workers — Equal pay — Pay — Concept — Tax concession — Not included

(Art. 141 EC)

2. Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Directive 76/207 — Dismissal — Meaning — Voluntary redundancy scheme — Included

(Council Directive 76/207, Art. 5(1))

3. Social policy — Male and female workers — Access to employment and working conditions — Directive 76/207 — Equal treatment in matters of social security — Directive 79/7 — National provision granting, at different ages for men and women, a tax advantage on cessation of the employment relationship — Direct discrimination on grounds of sex — Impermissible

(Council Directives 76/207 and 79/7)

Summary

1. The concept of pay, referred to in Article 141 EC, comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer. Therefore, an advantage consisting in a tax concession for the worker, by taxing at a rate reduced by half, sums paid on cessation of the employment relationship, is not covered by Article 141 EC, since that advantage is not paid by the employer.

(see paras 22-23)

2. The term ‘dismissal’ contained in Article 5(1) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, must be widely construed so as to include termination of the employment relationship between an employee and his employer, even as part of a voluntary redundancy scheme.

(see para. 27)

3. Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as precluding a provision which grants to workers who have passed the age of 50 years in the case of women and 55 years in the case of men, as a voluntary redundancy incentive, an advantage consisting in taxation at a rate reduced by half, of sums paid on cessation of the employment relationship.

Such a difference in treatment, which constitutes direct discrimination on grounds of sex, cannot be covered by any exception, either under Directive 76/207, or under Article 7(1)(a) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. The exception to the prohibition of discrimination on grounds of sex, laid down under the latter provision, must be interpreted strictly and cannot apply to a tax concession which is not a social security benefit, but only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and to the consequences thereof for other social security benefits.

(see paras 33-35, operative part)
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Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Supplies of goods — Determination of the place of taxation – ‘Stops in a third territory’ within the meaning of the Sixth Directive — Meaning — Stops in the ports of a third country during which passengers may leave the ship — Included

(Council Directive 77/388, Art. 8(1)(c))

Summary

Stops made by a ship in the ports of a third country during which passengers may leave the ship, even for a short period, are ‘stops in a third territory’ within the meaning of Article 8(1)(c) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, which provides that the place of taxation of supplies of goods made on board ships, aircraft or trains in the course of the part of the transport of passengers effected in the Community is the point of departure of the transport where that part of the transport is effected without a stop in a third territory between the point of departure and the point of arrival of the transport.

(see para. 27, operative part)
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Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Scope – Examination of whether there is a transfer of an undertaking – Transfer of the assets from the original contractor to the new contractor – Requirement that those assets be transferred to that party for independent commercial use – None – Requirement to have regard to all the facts

(Council Directive 2001/23, Art. 1)

Summary

Article 1 of Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, must be interpreted as meaning that, in examining whether there is a transfer of an undertaking or business within the meaning of that article, in the context of a fresh award of a contract and having regard to all the facts, the transfer of the assets for independent commercial use is not an essential criterion for the transfer of those assets from the original contractor to the new contractor. The transfer of assets is only a single factor in the overall assessment which must be made by the national court when examining whether or not there is a transfer of an undertaking or business within the meaning of that provision.

(see paras 42, 44, operative part)
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1. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Working time – Definition – Workers in certain social and medico-social establishments – National legislation providing for a system of equivalence with a weighting mechanism for periods of inactivity – Not permissible

(Council Directive 93/104)

2. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – More favourable national provisions – Thresholds or ceilings to be applied for ascertaining whether the directive is complied with

(Council Directive 93/104, Art. 15)

Summary

1. Directive 93/104 concerning certain aspects of the organisation of working time must be interpreted as precluding legislation of a Member State which, with respect to on-call duty performed by workers in certain social and medico-social establishments during which they are required to be physically present at their workplace, lays down, for the purpose of calculating the actual working time, a system of equivalence in which a weighting mechanism is applied with flat-rate coefficients to take account of periods of inactivity during on-call duty, where compliance with all the minimum requirements laid down by that directive in order to protect effectively the safety and health of workers is not ensured.

The classification as working time within the meaning of Directive 93/104 of a period during which the employee is present at his workplace cannot depend on the intensity of his work but follows solely from his obligation to be at his employer’s disposal.

(see paras 58, 63, operative part)

2. Article 15 of Directive 93/104 concerning certain aspects of the organisation of working time expressly allows the application or introduction of national provisions more favourable to the protection of the safety and health of workers. Where national law fixes a ceiling more favourable to workers, in particular for maximum weekly working time, the relevant thresholds or ceilings for ascertaining whether the protective rules laid down by that directive are complied with are exclusively those set out in the directive.

(see paras 51, 63, operative part)
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Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive 76/207

(Council Directive 76/207, Arts 2(1) and (3), and 3)

Summary

Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, precludes a national law which does not afford a woman who is on maternity leave the same rights as other successful applicants from the same recruitment competition as regards conditions for access to the career of an official by deferring the start of her career to the end of that leave, without taking account of the duration of the leave, for the purpose of calculating her seniority of service.

(see para. 47, operative part)
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1. Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000

(Council Regulation No 1346/2000, Art. 43)

2. Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000

(Council Regulation No 1346/2000, Art. 3(1))

Summary

1. The first sentence of Article 43 of Regulation No 1346/2000 on insolvency proceedings must be interpreted as applying if no judgment opening insolvency proceedings has been delivered before its entry into force on 31 May 2002, even if the request to open proceedings was lodged prior to that date.

(see para. 21)

2. Article 3(1) of Regulation No 1346/2000 on insolvency proceedings must be interpreted as meaning that the court of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to open insolvency proceedings retains jurisdiction to open those proceedings if the debtor moves the centre of his main interests to the territory of another Member State after lodging the request but before the proceedings are opened.

(see para. 29, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable persons

(Council Directive 77/388, Arts 2(1), and 9(1))

Summary

Articles 2(1) and 9(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that a fixed establishment, which is not a legal entity distinct from the company of which it forms part, established in another Member State and to which the company supplies services, should not be treated as a taxable person by reason of the costs imputed to it in respect of those supplies.

(see para. 41, operative part)
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1. Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 234 EC)

2. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653

(Council Directive 86/653, Art. 1(2))

Summary

1. Neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the framers of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State.

Where domestic legislation adopts the same solutions as those adopted in Community law in order, in particular, to avoid discrimination against foreign nationals or any distortion of competition, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.

(see paras 15-16)

2. Article 1(2) of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents is to be interpreted as meaning that, where a self-employed intermediary had authority to conclude a single contract, subsequently extended over several years, the condition laid down by that provision that the authority be continuing requires that the principal should have conferred continuing authority on that intermediary to negotiate successive extensions to that contract, unless there are other factors indicating that there is continuing authority to negotiate.

(see paras 26-27, operative part)
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Freedom of movement for persons – Freedom of establishment – Restrictions

(Arts 43 EC and 48 EC; Council Directive 89/666)

Summary

Articles 43 EC and 48 EC do not preclude legislation of a Member State which makes registration, in the register of companies, of a branch of a limited company established in another Member State subject to the payment of an advance on the anticipated cost of the publication of the objects of the company as set out in its instrument of constitution.

The requirement for payment of an advance that merely reflects the actual administrative costs of publication in accordance with Eleventh Directive 89/666 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State cannot constitute a restriction on freedom of establishment in so far as it neither prohibits, impedes nor renders less attractive the exercise of that freedom. Moreover, such legislation is not liable to place companies from other Member States in a less favourable factual or legal situation than companies from the Member State of establishment.

(see paras 38-39, 43, operative part)
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Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty levied on capital companies

(Council Directive 69/335, Art. 12(1)(a))

Summary

Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303, does not preclude national legislation which provides, in respect of the drawing-up of a notarial act recording a disposal of shares which is not linked to an increase in capital, for the charging of fees which are fixed by reference to a flat rate and/or the value of the shares being disposed of.

A tax constituted by such fees falls within the exception provided for in Article 12(1)(a) of Directive 69/335, which allows a tax to be charged in the event of a transfer of securities and, consequently, collection thereof is not contrary to the directive. The fact that the amount of those fees increases directly and without an upper limit in proportion to the value of the shares disposed of is not such as to affect this conclusion. By providing that the duties to which it refers may be ‘charged at a flat rate or not’, Article 12(1)(a) of Directive 69/335 allows the Member States freely to determine the rate thereof.

(see paras 21-25, operative part)
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1. Freedom to provide services – Restrictions – Posting of workers who are nationals of non-member States by an undertaking in another Member State

(Art. 49 EC)

2. Freedom to provide services – Restrictions – Posting of workers who are nationals of non-member States by an undertaking in another Member State

(Art. 49 EC)

Summary

1. A Member State which makes the posting of workers who are nationals of non‑Member States by an undertaking established in another Member State subject to obtaining an ‘EU Posting Confirmation’, the issue of which requires, first, that the workers concerned must have been employed for at least one year by that undertaking or must have concluded an employment contract of indefinite duration with it and, secondly, evidence that the national employment and wage conditions are complied with, has failed to fulfil its obligations under Article 49 EC.

In so far as that confirmation must be issued before the posting can be carried out and is made only after verification by the competent national authorities of compliance with those requirements, it is an authorisation procedure. However, national provisions which make the provision of services within national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitute a restriction on the freedom to provide services within the meaning of Article 49 EC.

(see paras 40-41, 68, operative part 1)

2. A Member State laying down a ground for the automatic refusal of an entry and residence permit, without exception, which does not allow the situation of workers from a non‑Member State, lawfully posted by an undertaking established in another Member State, to be regularised when those workers have entered the national territory without a visa, has failed to fulfil its obligations under Article 49 EC.

(see para. 68, operative part 1)
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Freedom of movement for persons – Workers – Freedom of establishment – Freedom to provide services – Restrictions – Tax provisions

(Arts 39 EC, 43 EC and 49 EC)

Summary

A Member State which provides that the rights to deduct or to omit from taxable income contributions paid to a pension scheme are granted only for payments under contracts entered into with pension institutions established in national territory, whereas no such tax relief is granted for payments made under contracts entered into with pension institutions established in other Member States, fails to fulfil its obligations under Articles 39 EC, 43 EC and 49 EC.

By refusing in general to grant a tax advantage in respect of contributions paid to a pension institution established in another Member State, such legislation cannot be justified by the need to guarantee the coherence of the national tax system since the factor liable adversely to affect the latter is to be found in the fact that the transfer of the taxpayer’s residence occurs between the time of payment of contributions to a pension scheme and that of payment of the corresponding benefits, that Member State being deprived only in that case of the power to tax the benefits corresponding to the contributions deducted or exempted.

Since the provisions of the Treaty on freedom to provide services, freedom of movement for workers and freedom of establishment preclude the contested legislation, it is not necessary to consider that legislation separately in the light of Article 56 EC on free movement of capital.

(see paras 64, 71-74, 76, operative part)
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Community law – Principles – Equal treatment – Discrimination on grounds of nationality

(Arts 43 EC and 49 EC)

Summary

Public authorities concluding public service concession contracts are bound to comply with the fundamental rules of the EC Treaty, especially Articles 43 and 49 EC, and the prohibition of discrimination on grounds of nationality in particular, as being a specific expression of the general principle of equal treatment. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed.

It follows that a Member State which renews licences for horse-race betting operations without inviting any competing bids fails to fulfil its obligations under Articles 43 and 49 EC and, in particular, infringes the general principle of transparency and the obligation to ensure a sufficient degree of advertising.

The renewal of such licences without putting them out to tender cannot be justified by the need to discourage the development of clandestine activities for collecting and allocating bets, since it is not an appropriate means of attaining that objective and goes beyond what is necessary in order to preclude operators in the horse-race betting sector from engaging in criminal or fraudulent activities.

In addition, grounds of an economic nature, such as the need to ensure continuity, financial stability and a proper return on past investments for licence holders, cannot be accepted as overriding reasons in the general interest justifying a restriction of a fundamental freedom guaranteed by the Treaty.

(see paras 22-24, 31, 34-35, 38, operative part)