ddrg/super_eurlex huggingface dataset:
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1 Officials - Disciplinary measures - Disciplinary proceedings - Submission that disciplinary proceedings are concurrent with criminal proceedings - Onus on the official to produce proof - Evidence to be appraised by the Court of First Instance - Findings of fact - Whether these may be reviewed in the course of an appeal - Not possible

(Staff Regulations, Art. 88, fifth para.)

2 Officials - Disciplinary measures - Disciplinary proceedings - Rights of the defence must be observed - Where the official has had no opportunity to comment on certain documents - Undisclosed documents inadmissible as evidence - Limits

Summary

1 In the context of disciplinary proceedings against an official who maintains that, for the purposes of the fifth paragraph of Article 88 of the Staff Regulations, criminal proceedings have been initiated against him in respect of the same acts, it is for that official to provide the appointing authority and, where appropriate, the Court of First Instance with sufficient evidence to support the conclusion that he was subject at one and the same time to disciplinary proceedings and to criminal proceedings relating to the same matters.

A finding by the Court of First Instance that the official had not provided the necessary evidence in that regard constitutes a finding of fact which comes within the exclusive jurisdiction of the Court of First Instance and cannot be called into question in the context of an appeal.

2 According to the principle that the rights of the defence must be observed, an official must have the opportunity, in the context of disciplinary proceedings, to comment on every document which the institution intends to use against him. Where an official is not given such an opportunity, the undisclosed documents must not be taken into consideration as evidence. However, the fact that certain documents used by the institution concerned are inadmissible as evidence is of no significance except to the extent to which the institution's case can be proved only by reference to those documents.
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1 Approximation of laws - Review procedures relating to the award of public supply and public works contracts - Directive 89/665 - Decision awarding contracts - Member States under an obligation to provide full legal protection for tenderers

(Council Directive 89/665, Art. 2(1)(a) and (b) and Art. 2(6), second subpara.)

2 Approximation of laws - Review procedures relating to the award of public supply and public works contracts - Directive 89/665 - Member States under an obligation to provide for review procedures in respect of decisions awarding contracts - Where national legislation does not enable the protection provided for by the Directive to be ensured - Obligation to remedy damage to individuals where it is not possible to interpret national law consistently with the Directive

(Council Directive 89/665, Art. 2(1)(a) and (b))

Summary

1 The combined provisions of Article 2(1)(a) and (b) and the second subparagraph of Article 2(6) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts must be interpreted as meaning that the Member States are required to ensure that the contracting authority's decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract is in all cases open to review under a procedure whereby unsuccessful tenderers may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages.

2 Article 2(1)(a) and (b) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts cannot be interpreted to the effect that, even where there is no award decision which may be the subject of an application to have it set aside, the bodies in the Member States having power to review public procurement procedures may hear applications under the conditions laid down in that provision.

In such circumstances, if provisions of national law cannot be interpreted in a manner consistent with Directive 89/665, those concerned may seek compensation, in accordance with the appropriate procedures under national law, for the damage suffered by reason of the failure to transpose the Directive within the prescribed period.
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Convention on Jurisdiction and the Enforcement of Judgments - Exclusive jurisdiction - Proceedings `which have as their object tenancies of immovable property' - Definition - Action for damages for taking poor care of premises and causing damage to holiday accommodation - Included - Plaintiff, a professional tour operator, subrogated to the rights of the owner of the property - No effect

(Convention of 27 September 1968, Art. 16(1)(a))

Summary

$$The rule laid down in Article 16(1)(a) 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, conferring exclusive jurisdiction in proceedings having as their object tenancies of immovable property is applicable to an action for damages for taking poor care of premises and causing damage to accommodation which a private individual had rented for a few weeks' holiday, even where the action is not brought directly by the owner of the property but by a professional tour operator from whom the person in question had rented the accommodation and who has brought legal proceedings after being subrogated to the rights of the owner of the property.

The ancillary clauses relating to insurance in the event of cancellation and to guarantee of repayment of the price paid by the client, which are contained in the general terms and conditions of the contract concluded between that organiser and the tenant, and which do not form the subject of the dispute in the main proceedings, do not affect the nature of the tenancy as a tenancy of immovable property within the meaning of that provision of the Convention.

(see para. 38 and operative part)
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Agriculture - Common organisation of the markets - Milk and milk products - Protection of designations - Use of the designation `cheese' to describe a dietary product in which the natural fat has been replaced by vegetable fat - Not permissible - Additional descriptions - No effect

(Council Regulation No 1898/87, Art. 3(1); Council Directive 89/398, Art. 3(2))

Summary

$$Article 3(1) of Regulation No 1898/87 on the protection of designations used in marketing of milk and milk products, read in conjunction with Article 3(2) of Directive 89/398 on the approximation of the laws of the Member States relating to foodstuffs intended for particular nutritional uses, is to be interpreted as meaning that a milk product in which the milk fat has been replaced by vegetable fat for dietetic reasons may not be designated as `cheese'.

A designation such as `Dietary cheese (Dietary soft cheese) containing vegetable oil for a fat-modified diet' may not be used in the case of products derived from milk in which a natural constituent of milk has been replaced by a foreign substance, even when that designation is accompanied by additional descriptions on the products' packaging, such as `This dietary cheese is rich in polyunsaturated fats' or `This dietary cheese is ideal for a cholesterol-conscious lifestyle'. Those descriptions not only do not clearly indicate that the milk fat has been entirely replaced by vegetable fat but they even increase the risk of confusion in the consumer's mind in that, in breach of Article 3(2) of the Regulation, they suggest, by the unlawful use of the term `cheese', that those products are milk products.
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Agriculture - Common organisation of the markets - Export refunds - Application for advance payment of the export refund for goods placed under the customs warehousing scheme - Withdrawal of application and goods put back into free circulation - Payment of refunds despite withdrawal of application - Exporter's obligation to reimburse sums undely paid - Release of security

(Commission Regulations Nos 2220/85, Art. 29, first para., and 3665/87, Arts 29(2), 31(1) and 33(1))

Summary

$$The second paragraph of Article 33(1) of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 1615/90, in conjunction with the first paragraph of Article 29 of Regulation No 2220/85 laying down common detailed rules for the application of the system of securities for agricultural products, is not applicable where an exporter, after submitting to the competent national authorities an application for advance payment of the export refund for goods placed under the customs warehousing scheme, in accordance with Article 29(2) of Regulation No 3665/87, withdraws his application in order to reintroduce those goods into the customs territory of the Community, but nevertheless receives the advance payment of the export refund originally applied for.

In those circumstances, the security provided for in Article 31(1) of Regulation No 3665/87 must be released and only the amount paid by way of advance payment of the export refund must be reimbursed by the exporter in accordance with the national provisions applicable to repayment of sums unduly paid.

( see paras 43-44 and operative part )
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Social security for migrant workers - Equal treatment - General social contribution levied by a Member State on its residents working in another Member State - Not permissible

(EC Treaty, Arts 48 and 52 (now, after amendment, Arts 39 EC and 43 EC); Council Regulation No 1408/71, Art. 13)

Summary

$$A Member State fails to fulfil its obligations under Article 13 of Regulation No 1408/71 and under Articles 48 and 52 of the Treaty (now, after amendment, Articles 39 EC and 43 EC) if it applies a general social contribution - the proceeds of which are allocated to the bodies responsible for paying old-age benefits, survivor's benefits, sickness benefits and family allowances - on the employment income and substitute income of employed and self-employed persons resident in that State but working in another Member State who, by virtue of that Regulation, are not subject to the social security legislation of the State of residence.

Where such a contribution is allocated specifically and directly to financing the social security scheme of that State, it falls within the scope of Regulation No 1408/71 and constitutes a levy covered by the prohibition against double contributions laid down in Article 13 of that Regulation and the provisions of the Treaty that Article 13 is designed to implement.

That conclusion is not undermined by the fact that payment of the contribution does not give entitlement to any direct and identifiable benefit in return, by the limited number of the workers concerned, or by the fact that the rate of the levy is minimal.

( see paras 31, 34-35, 37-38, 45-46, 48 and operative part )
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Common commercial policy - Trade with non-member countries - Regime applying to imports into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro - Imports into the Community of baby-beef originating in the former Yugoslav Republic of Macedonia - Certificates of origin issued by the body formerly authorised to do so, a new competent body not yet having been designated - Exclusion from the benefit of the arrangements for reductions in import levies

(Council Regulation No 545/92; Commission Regulation No 859/92)

Summary

$$Article 7 of Council Regulation No 545/92 concerning the arrangements applicable to the import into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro and Commission Regulation No 859/92 laying down detailed rules governing imports of baby-beef originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro must be interpreted as meaning that the importation into the Community in September and October 1992 of consignments of baby-beef originating in and coming from the former Yugoslav Republic of Macedonia with certificates of origin issued by the Yugoslav body which was the competent authority prior to the denunciation by the Community of the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was not capable of benefiting from the arrangements for reduced import levies provided for in Article 7 of Regulation No 545/92, even though a new competent body had not been designated for the former Yugoslav Republic of Macedonia at the time the import operations took place.

( see para. 56 and operative part )
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Freedom of movement for persons - Workers - Right of residence of family members - Indefinite leave to remain for a worker's spouse - National rules requiring a shorter period of residence for the spouses of persons present and settled in national territory than for nationals of another Member State and members of their families not fulfilling that condition - Discrimination contrary to Article 7(2) of Regulation No 1612/68 - None

(EC Treaty, Art. 8a (now, after amendment, Art. 18 EC); Regulation No 1612/68 of the Council, Art. 7(2))

Summary

$$Legislation of a Member State which requires spouses of migrant workers who are nationals of other Member States to have resided in the territory of that Member State for four years before they become entitled to apply for indefinite leave to remain and to have their applications considered, but which requires residence of only 12 months for the spouses of persons who are settled in that territory and are not subject under the immigration laws to any restriction on the period for which they may remain does not constitute discrimination contrary to Article 7(2) of Regulation No 1612/68.

As Community law stands at present, the right of nationals of a Member State to reside in another Member State is not unconditional. That situation derives, first, from the provisions on the free movement of persons contained in Title III of Part Three of the Treaty and the secondary legislation adopted to give them effect and, second, from the provisions of Part Two of the Treaty, and more particularly Article 8a of the Treaty (now, after amendment, Article 18 EC), which, whilst granting citizens of the Union the right to move and reside freely within the Member States, expressly refers to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect. Accordingly, the Member States are entitled to rely on any objective difference there may be between their own nationals and those of other Member States when they lay down the conditions under which leave to remain indefinitely in their territory is to be granted to the spouses of such persons.

( see paras 30-31, 35 and operative part )
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1. Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Scope - Transfer of an entity managed by a public body within the State administration to a private-law company whose capital is publicly owned - Included - Condition - Persons concerned previously protected as workers under national law

(Council Directive 77/187, Art. 1(1))

2. Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Obligation of the transferee to take into account the total length of service of employees in calculating the rights of a financial nature attached to length of service - Limit - Alteration of the contract of employment allowed by national law where there is no transfer

(Council Directive 77/187, Art. 3(1))

Summary

1. Article 1(1) of Directive 77/187 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 businesses must be interpreted as meaning that that directive may apply to a situation in which an entity operating telecommunications services for public use and managed by a public body within the State administration is, following decisions of the public authorities, the subject of a transfer for value, in the form of an administrative concession, to a private-law company established by a public body which holds its entire capital. The persons concerned by such a transfer must, however, originally have been protected as employees under national employment law.

( see para. 41 and operative part 1 )

2. The first paragraph of Article 3(1) of Directive 77/187 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 businesses must be interpreted as meaning that, in calculating the rights of a financial nature attached, in the transferee's business, to employees' length of service, such as a termination payment or salary increases, the transferee must take into account the entire length of service, in both his employment and that of the transferor, of the employees transferred, in so far as his obligation to do so derives from the employment relationship between those employees and the transferor, and in accordance with the terms agreed in that relationship. Directive 77/187 does not, however, preclude the transferee from altering the terms of the employment relationship where national law allows such an alteration in situations other than the transfer of an undertaking.

( see para. 53 and operative part 2 )
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Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Adjustment of tax improperly invoiced - Determination of conditions in which adjustments may be made - Competence of the Member States - Scope and limits

(Council Directive 77/388)

Summary

$$Since the Sixth Directive 77/388 does not contain any provisions relating to the adjustment by the issuer of an invoice of value added tax which has been improperly invoiced, it is for the Member States to lay down the conditions in which the improperly invoiced tax may be adjusted. However, where the issuer of the invoice has in sufficient time wholly eliminated the risk of any loss in tax revenues, the principle of the neutrality of value added tax requires that tax which has been improperly invoiced can be adjusted without such adjustment being made conditional upon the issuer of the relevant invoice having acted in good faith. Therefore, where such a risk has been eliminated, the adjustment of value added tax which has been improperly invoiced cannot be dependent on the discretion of the tax authorities.

( see paras 48 to 49, 58, 60, 63, 68, 70 and operative part 1 and 2 )
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1. Environment Conservation of wild birds Directive 79/409 Classification of special protection areas Obligation of the Member States Assessment Extent

(Council Directive 79/409, Art. 4)

2. Environment Conservation of wild birds Directive 79/409 Failure to classify a special protection area Consequences Duality of applicable protection schemes

(Council Directives 79/409, Art. 4(1), (2) and (4), and 92/43, Art. 6(2) to (4) and (7))

Summary

1. The inventory of areas which are of great importance for the conservation of wild birds, more commonly known under the acronym IBA (Inventory of Important Bird Areas in the European Community), although not legally binding on the Member States concerned, contains scientific evidence making it possible to assess whether a Member State has complied with its obligation to classify as special protection areas the most suitable territories in number and size for conservation of the protected species. It follows from the general scheme of Article 4 of Directive 79/409 on the conservation of wild birds that, where a given area fulfils the criteria for classification as a special protection area, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I to that directive.

( see paras 25-26 )

2. The text of Article 7 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora expressly states that Article 6(2) to (4) of that directive apply, in substitution for the first sentence of Article 4(4) of Directive 79/409 on the conservation of wild birds, to the areas classified under Article 4(1) or (2) of the latter directive. It follows that, on a literal interpretation of that passage of Article 7 of Directive 92/43, only areas classified as special protection areas fall under the influence of Article 6(2) to (4) of that directive. The fact that the protection regime under the first sentence of Article 4(4) of Directive 79/409 applies to areas that have not been classified as special protection areas but should have been so classified does not in itself imply that the protection regime referred to in Article 6(2) to (4) of Directive 92/43 replaces the first regime referred to in relation to those areas.

( see paras 44-45, 49 )