ddrg/super_eurlex huggingface dataset:
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1. Actions against Member States for failure to fulfil obligations - Subject matter of the action - Determined by the reasoned opinion - Subsequent extension - Not permissible

(EEC Treaty, Art. 169)

2. Tax provisions - Domestic taxation - System of taxation of beer - Levying of excise duty on the hot wort, regardless of wastage incurred in preparing the finished product - Flat-rate adjustment of excise duty on imports and refunds on exports - Compatibility with the first paragraph of Article 95 and Article 96 of the Treaty - Conditions - Application of a wastage rate higher than that of certain domestic producers - Not permissible (EEC Treaty, Arts 95, first paragraph, and 96)

Summary

1. In the context of proceedings for failure to fulfil an obligation brought by the Commission pursuant to Article 169 of the Treaty, the reasoned opinion defines the subject-matter of the proceedings and it cannot subsequently be extended. The possibility for the State concerned to present its observations is an essential guarantee envisaged by the Treaty, and is an essential procedural requirement for the proper conduct of the procedure for a finding that a Member State has failed to fulfil its obligations.

2. A system of taxation of beer in which excise duty is levied not on the finished product but on the hot wort, regardless of wastage incurred in subsequent stages of production and packaging, and in which, since it is technically impossible to verify a posteriori the actual wastage from hot wort, imported beer is taxed on the basis of the quantity of the finished product, to which a flat-rate adjustment is applied to take account of the presumed quantity of hot wort used, while exported beer gives rise to a refund of excise duty calculated at a flat rate, may be considered compatible with the first paragraph of Article 95 and Article 96 of the Treaty only if it is established that the system has been so arranged as to exclude any possibility of imported beer being taxed more heavily than domestic beer or of refunds arising on the export of beer exceeding excise duty levied on the product before export.

Accordingly, a Member State which, in implementing such a system for the taxation of beer, for the purposes of the levying of excise duty on imports of beer and the refund of duty on exports, applies a rate of wastage incurred between the wort and the finished product which exceeds that of certain domestic breweries, is failing to fulfil its obligations under Articles 95 and 96 of the EEC Treaty.
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Free movement of persons - Freedom of establishment - Fisheries - Grant by a Member State of fishing licences for vessels entered on its register - Grant of licence subject, only for nationals of other Member States, to the requirement of incorporating a company under national law - Not permissible

(EEC Treaty, Art. 52)

Summary

The imposition by a Member State of the requirement that nationals of other Member States who own a fishing vessel entered on its register set up a company governed by its national law, without a similar requirement being imposed on its own nationals, constitutes, in relation to freedom of establishment, discrimination on grounds of nationality, which is prohibited by Article 52 of the Treaty and cannot be justified by the existence of a Community system of national fishing quotas since the licences are not intended to define detailed rules for the utilization of those quotas.
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Convention on Jurisdiction and Enforcement of Judgments - Scope - Matters excluded - Arbitration - Meaning - Application to a court for the appointment of an arbitrator - Included - Need to settle a preliminary question concerning the existence or validity of the arbitration clause - No effect

(Convention of 27 September 1968, Article 1(4) )

Summary

By excluding arbitration from the scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, by virtue of Article 1(4) thereof, on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.

Consequently, the abovementioned provision must be interpreted as meaning that the exclusion provided for therein extends to litigation pending before a national court concerning the appointment of an arbitrator, even if the existence or validity of an arbitration agreement is a preliminary issue in that litigation.
JUDGMENT OF THE COURT (Second Chamber)

24 January 1991 ( *1 )

In Case C-384/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de grande instance (Regional Court), Nice, for a preliminary ruling in the criminal proceedings pending before that court against

Gérard Tomatis and Christian Fulchiron

on the interpretation of heading 87.02 of the Common Customs Tariff: ‘Motor vehicles for the transport of persons, goods or materials (including sports motor vehicles, other than those of heading 87.09)’,

THE COURT (Second Chamber)

composed of: T. F. O'Higgins, President of the Chamber, G. F. Mancini and F. A. Schockweiler, Judges,

Advocate General: F. G. Jacobs

Registrar: D. Louterman, Principal Administrator

(The grounds of the judgment are not reproduced.)

in answer to the questions referred to it by the Tribunal de grande instance, Nice, by judgment of 13 January 1989, hereby rules:

(1) Subheading 87.02 A of the Common Customs Tariff must be interpreted as including vehicles having, behind the driver's seat or bench, specially fitted spaces for fixed, folding or removable seats, and having side windows, a rear or side door or a tail-gate, and an interior finish similar to that of vehicles designed for the transport of passengers.

(2) The tariff classification given to a product by the authorities of one Member State may be challenged by the authorities of another Member State in connection with the classification of other examples of the same product or for the purposes of their national law.

( *1 ) Language of the case: French.
Judgment of the Court (Fourth Chamber) of 7 May 1991. - Sheptonhurst Ltd v Newham Borough Council. - Reference for a preliminary ruling: High Court of Justice, Queen's Bench Division - United Kingdom. - Interpretation of Articles 30 and 36 of the EEC Treaty - National legislation prohibiting the sale of sex articles from unlicensed sex establishments. - Case C-350/89.



European Court reports 1991 Page I-02387

Pub.RJ Page Pub somm



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Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Legislation prohibiting the marketing of sex articles from certain outlets - Whether permissible

(EEC Treaty, Art. 30)

Summary

Article 30 of the Treaty should be construed as meaning that national provisions prohibiting the sale of lawful sex articles from unlicensed sex establishments do not constitute a measure having an effect equivalent to a quantitative restriction on imports.

(The Court' s reply in this judgment is the same as that in its judgment in Case C-23/89 Quietlynn Ltd and Richards v Southend Borough Council [1990] ECR I-3059, which involved substantially identical questions.)

Parties

In Case C-350/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the High Court of Justice, Queen' s Bench Division, for a preliminary ruling in the proceedings pending before that court between

Sheptonhurst Limited

and

Newham Borough Council,

on the interpretation of Articles 30 and 36 of the EEC Treaty,

THE COURT (Fourth Chamber),

composed of: M. Díez de Velasco, President of the Chamber, C.N. Kakouris and P.J.G. Kapteyn, Judges,

(The grounds of the judgment are not reproduced.)

in answer to the question referred to it by the High Court, Queen' s Bench Division, by order of 12 October 1988, hereby rules:

Operative part

Article 30 of the EEC Treaty should be construed as meaning that national provisions prohibiting the sale of lawful sex articles from unlicensed sex establishments do not constitute a measure having an effect equivalent to a quantitative restriction on imports.
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Tax provisions - Harmonization of legislation - Turnover taxes - Common system of value added tax - Taxable persons - Concept - Holding company whose sole purpose is to acquire financial holdings - Exclusion

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

Summary

Article 4 of the Sixth Council Directive (77/388/EEC) of 17 May 1977, on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment, must be interpreted as meaning that a holding company whose sole purpose is to acquire holdings in other undertakings, without involving itself directly or indirectly in the management of those undertakings, without prejudice to its rights as shareholder, does not have the status of a taxable person for the purposes of value added tax and therefore has no right to deduct tax under Article 17 of the Sixth Directive. The fact that the holding company belongs to a world-wide group of undertakings, which appears outwardly under a single name, is not relevant to the company' s classification as a taxable person for the purposes of value added tax.
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Tax provisions - Harmonization of laws - Turnover tax - Common system of value added tax - Levying of national taxes which cannot be characterized as turnover taxes - Permissible - Concept of "turnover taxes" - Scope - Special tax on performances and entertainments - Excluded

(Council Directive 77/388, Art. 33)

Summary

It is apparent from Article 33 of the Sixth Directive (77/388/EEC) on the harmonization of the laws of the Member States relating to turnover taxes that Member States may introduce indirect taxes, provided that those taxes cannot be characterized as turnover taxes. In order to decide whether a given tax can be so characterized it is necessary, in particu lar, to determine whether it has the effect of compromising the functioning of the common system of value added tax by levying a charge on the movement of goods and services and on commercial transactions in a way comparable to value added tax.

A special tax on performances and entertainments introduced by a commune under a tax regulation, under which any person who habitually or occasionally organizes public performances or entertainments within the commune and requires those attending or participating to pay an entrance fee must pay a special tax on the gross amount of all receipts, does not possess the characteristics of a turnover tax within the meaning of that provision if it is established that the tax in question:

(i) applies only to a limited category of goods and services and thus is not a general tax;

(ii) is not charged at each stage of the production and distribution process, since it is imposed annually on the aggregate receipts of taxable undertakings; and

(iii) is not levied on the value added at each transaction but on the gross amount of all receipts, so that it is impossible to establish precisely what fraction of the tax charged on each sale or service may be regarded as having been passed on to the consumer.
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1. Measures adopted by the Community institutions - Directives - Implementation by the Member States - Transposition of a directive without legislative action - Conditions - Existence of a general legal context ensuring the full application of the directive - Inadequacy of a practice conforming to the requirements of the directive

(EEC Treaty, third para. of Art. 189)

2. Environment - Air pollution - Directive 80/779 - Fixing limit values applicable to the concentration of sulphur dioxide - Adoption of a mandatory legal rule - Obligation of the Member States

(Council Directive 80/779, Art. 2)

Operative part

1. Declares that, by failing to adopt within the prescribed period all the provisions needed to comply with Council Directive 80/779/EEC of 15 July 1980 on the air quality limit values and guide values for sulphur dioxide and suspended particulates, the French Republic has failed to fulfil its obligations under the EEC Treaty;

2. Orders the French Republic to pay the costs.
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1. Social policy - Equal treatment for men and women in matters of social security - Persons covered by Directive 79/7/EEC - Working population within the meaning of Article 2 of the directive - Person prevented by sickness from returning to employment after interrupting his or her occupational activity in order to attend to the upbringing of his or her children - Included - Condition

(Council Directive 79/7/EEC, Art. 2)

2. Social policy - Equal treatment for men and women in matters of social security - Directive 79/7/EEC - Article 4(1) - Direct effect - Scope

(Council Directive 79/7/EEC, Art. 4)

Summary

1. Article 2 of Council Directive 79/7/EEC, on the progressive implementation of the principle of equal treatment for men and women in matters of social security, must be interpreted as meaning that the directive does not apply to a person who has interrupted his or her occupational activity in order to attend to the upbringing of his or her children and who is prevented by illness from returning to employment unless that person was seeking employment and his or her search was interrupted by the materialization of one of the risks specified in Article 3(1)(a) of the directive, it being unnecessary to make a distinction according to the reason for which that person left previous employment. It is for the national court to determine that the person relying on Directive 79/7 was actually seeking employment at the time when one of the risks specified in Article 3(1)(a) of the directive materialized.

2. Since the expiry of the period for the transposition of Directive 79/7 it has been possible to rely on Article 4 of the directive in order to have set aside national legislation which makes entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which has been abolished and which entailed a condition discriminating against female workers. In the absence of appropriate measures for implementing Article 4 of Directive 79/7, women placed at a disadvantage by the maintenance of the discrimination are entitled to be treated in the same manner and to have the same rules applied to them as men who are in the same situation, since, where the directive has not been implemented correctly, those rules remain the only valid point of reference.
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1. Officials - Actions - Prior administrative complaint - Conditions with regard to form - Complaint prepared by the official' s lawyer - Signature of the person concerned - Not an essential formality

(Staff Regulations, Art. 90) )

2. Officials - Leave - Annual leave - Carrying over of leave - Reasons relating to the requirements of the service - Justification by any means of proof

(Staff Regulations, Art. 57; Annex V, Art. 4, first para.)

Summary

1. No form is prescribed for administrative complaints submitted by officials, whose content must be interpreted and understood by the administration with all the care which a large well-equipped organization owes to those having dealings with it, including members of its staff.

Since it is not possible to prohibit the seeking of legal advice by those concerned at the pre-litigation stage, to require that the official should sign the complaint prepared by his lawyer would constitute completely excessive formalism, devoid of any legal basis and contrary to the case-law of the Court.

2. Although the Community institutions may, pursuant to their power of internal organization, establish a procedure relating to leave, that procedure cannot deprive an employee of the right to prove by any means - in the event of a dispute concerning the carrying over of annual leave from one calendar year to the next - that his leave accumulated for reasons relating to the requirements of the service, since the existence of such requirements constitutes the decisive criterion for carrying over annual leave.
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1. Preliminary rulings - Reference to the Court - Need for a preliminary ruling in view of a case pending before the national court - Condition for exercising the power to make a reference - Jurisdiction of the national court must not have been exhausted

(EEC Treaty, Art. 177)

2. Freedom to provide services - Services - Concept - Medical termination of pregnancy - Covered

(EEC Treaty, Art. 60)

3. Freedom to provide services - Services - Concept - Non-economic activity - Excluded - Prohibition by a Member State in which the medical termination of pregnancy is forbidden of the distribution of information about the possibilities of using for that purpose providers of services lawfully operating in another Member State - Information distributed by a group unconnected with the providers of services - Prohibition not contrary to Community law

(EEC Treaty, Arts 59 and 60)

Summary

1. A national court or tribunal is not empowered to bring a matter before the Court by way of a reference for a preliminary ruling under Article 177 of the Treaty unless a dispute is pending before it in the context of which it is called upon to give a decision which could take into account the preliminary ruling. Conversely, the Court of Justice has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been terminated.

2. Medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty.

3. The provision of information on an economic activity is not to be regarded as a provision of services within the meaning of Article 60 of the Treaty where the information is not distributed on behalf of an economic operator but constitutes merely a manifestation of freedom of expression.

As a result, it is not contrary to Community law for a Member State in which medical termination of pregnancy is forbidden to prohibit students associations from distributing information about the identity and location of clinics in another Member State where voluntary termination of pregnancy is lawfully carried out and the means of communicating with those clinics, where the clinics in question have no involvement in the distribution of the said information.
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Transport - Road transport - Social legislation - Inspections - Production of record sheets with data recorded by tachograph

(Council Regulation (EEC) No 3821/85, Art. 15(7) )

Summary

When it provides that a driver required to use a tachograph must be able to produce the record sheet for the 'last day of the previous week on which he drove' , Article 15(7) of Regulation No 3821/85 on recording equipment in road transport refers to the last driving day of the last week, prior to the current week, during which the driver concerned drove a vehicle subject to Regulation No 3820/85 on the harmonization of certain social legislation relating to road transport.
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Agriculture - Common organization of the markets - Wine - Aid for preventive distillation of table wines - Advances - Proof of completion of the operation - Failure to observe time-limit for submission of that proof - Loss of part or all of the security as a penalty - Principle of proportionality - Infringement - None

(Commission Regulation No 2373/83, Art. 8, as amended by Regulation No 3501/83)

Summary

With regard to the scheme for advances on aid for the preventive distillation of table wines, the time-limits for submission of proof of distillation and of payment of the purchase price to the producer laid down in Article 8 of Regulation No 2373/83 and extended by Regulation No 3501/83 are mandatory time-limits failure to observe which automatically entails the penalty of forfeiture of the security in whole or in part, depending on the length of delay. This penalty is both necessary and appropriate for the achievement of the objective pursued in setting mandatory time-limits, which is to ensure good administrative management of the system of advances and observance of the principle of equal treatment among traders. It must therefore be regarded as compatible with the principle of proportionality.
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1. Social security for migrant workers - Applicable legislation - Principle that the legislation of a single Member State only is to apply - Scope - Not applicable to recipients of a supplementary pension

(Regulation No 1408/71 of the Council, Arts 13(2) and 14 to 17)

2. Social security for migrant workers - Community rules - Scope ratione materiae - Industrial agreements - Exclusion - Collection by a Member State of contributions from benefits paid pursuant to industrial agreements under a scheme for which another Member State is responsible - Whether permissible

(Regulation No 1408/71 of the Council, Arts 1(j), 4 and 33)

Summary

1. The principle that the legislation of a single Member State only is to apply to workers moving within the Community applies only to the situations referred to in Articles 13(2) and 14 to 17 of Regulation No 1408/71, which determine the conflict rules to be applied in each situation.

Since recipients of supplementary pensions are not in one of the situations referred to in those articles, the principle that the legislation of a single Member State only is to apply cannot be invoked for their benefit.

2. Supplementary pensions paid under schemes established by industrial agreements, which do not constitute legislation within the meaning of Article 1(j) of Regulation No 1408/71, do not come within the scope ratione materiae of that regulation. Article 33, which prohibits Member States from making deductions from statutory pensions of Community nationals where the cost of the benefits received in return is not borne by one of their institutions, may not be relied upon against a Member State which, under its sickness scheme, provides for a contribution to be deducted from supplementary pensions based on industrial agreements and paid to persons residing in another Member State who receive sickness benefits pursuant to the legislation of that State.
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Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Architects - Recognition of diplomas and other evidence of formal qualifications - Minimum length of education and training - Full-time studies - Meaning

(Council Directive 85/384, Article 4(1)(a) )

Summary

Article 4(1)(a) of Directive 85/384 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services is to be interpreted as meaning that education and training which last for four years and which include practical semesters organized and supervised by the educational establishment must be regarded as four years of full-time studies.