ddrg/super_eurlex huggingface dataset:
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1. Agriculture ° EAGGF ° Clearance of accounts ° Amounts to be paid by a Member State to the Fund in respect of co-responsibility levy in the cereals sector ° Calculation based on information provided by the national authorities ° Subsequent amendment of the data forwarded ° Not permissible without plausible evidence

(Council Regulation No 729/70)

2. Agriculture ° EAGGF ° Clearance of accounts ° Disallowance of expenditure owing to irregularities in the application of Community rules ° Objection by the Member State concerned ° Burden of proof

(Council Regulation No 729/70)

Summary

1. Where the national authorities subsequently make substantial amendments to statistical data which have a decisive importance in the calculation of the amount which the Member State concerned owes to the EAGGF in respect of co-responsibility levy in the cereals sector and which they had previously notified, they should supply sufficient specific information to justify such amendments. This is particularly true where consistent evidence raises serious doubts about the correctness of the amended data.

2. Where the Commission disallows certain EAGGF expenditure on the ground that it was incurred as a result of breaches of Community rules imputable to a Member State, it is for that State to show that the conditions for obtaining the financing disallowed are satisfied. Such a burden of proof rests on the Member State which the Commission, on the basis of conclusive results of inspection by sampling, considers has not satisfied the obligation of checking the quality of tobacco properly before accepting it into intervention.
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International agreements ° Third Lomé ACP-EEC Convention ° Provisions relating to financial and technical cooperation ° Procedure for the award of public works contracts ° Respective roles of the ACP State and the Community ° Refusal by the European Investment Bank to grant financing in the event of a contract' s being awarded to the lowest tenderer ° Justification ° Tender not appearing to be economically the most advantageous ° Liability of the Community ° None

(EEC Treaty, Art. 215, second para.; Third Lomé ACP-EEC Convention of 8 December 1984, Arts 192 and 225)

Summary

The system of the procedure for the award of public works contracts within the framework of the financial and technical cooperation set up by the Third ACP-EEC Convention is such that under Articles 192(2) and 225(3) of that Convention it is for the authorities of the ACP States to prepare, negotiate and conclude public works contracts financed by the Community, whereas any intervention by the Community bodies responsible for taking, on the Community' s behalf, financing decisions on such contracts within the meaning of Article 192(4) of that Convention is intended solely to determine whether the conditions for Community financing are met or not. It is not intended to interfere with the principle that the contracts in question remain national contracts and cannot have that effect.

In that respect, the Community bodies have not only the right but also the duty, in fulfilment of the responsibilities conferred upon them for the proper administration of Community funds, to ensure that the relevant procedural rules are complied with and that the tender selected is economically the most advantageous, taking into account in particular the qualifications of and the guarantees offered by the tenderers, the nature and conditions of execution of the works and the price, utilization costs and technical value of those works. Finally, the Community bodies have not only the right but also the duty to obtain the information necessary to ensure the economical administration of Community resources.

No unlawful conduct giving rise to liability on the part of the Community may therefore be ascribed to the European Investment Bank when it refuses to finance a project if the contract is awarded to the lowest tenderer and when that refusal is based on the fact that, in the light of reservations expressed by an independent consultant, the tender in question does not appear to be economically the most advantageous.
Judgment of the Court of 23 May 1990. - Commission of the European Communities v Kingdom of Spain. - Failure of a Member State to fulfil its obligations - Council Directive 83/183/EEC - National legislation which fails to comply with obligations under Community law. - Case C-31/89.



European Court reports 1990 Page I-02139

Pub.RJ Page Pub somm



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Member States - Obligations - Implementation of directives - Failure to implement - Justification - Not permissible

( EEC Treaty, Art . 169 )

Summary

According to well-established case-law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations and time-limits laid down in Community directives .

Parties

In Case C-31/89

Commission of the European Communities, represented by Daniel Calleja, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Spain, represented by Javier Conde de Saro, Director-General for Coordination in matters involving Community Law and Institutions, and Rafael García-Valdecasas y Fernández, abogado del Estado, head of the State Legal Department for relations with the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 boulevard Emmanuel-Servais,

defendant,

APPLICATION for a declaration that by not granting exemption from value-added tax for permanent imports from another Member State by individuals of motor vehicles for private use, trailers, motor cycles, pleasure boats and private aircraft, contrary to Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals ( Official Journal 1983, L 105, p . 64 ), the Kingdom of Spain has failed to fulfil its obligations under the EEC Treaty,

THE COURT

composed of : O . Due, President, C . N . Kakouris and M . Zuleeg ( Presidents of Chambers ), R . Joliet, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias and M . Diez de Velasco, Judges,

( the grounds of the judgment are not reproduced )

hereby :

Operative part

( 1 ) Declares that by not granting exemption from value-added tax for permanent imports from another Member State by individuals of motor vehicles for private use, trailers, motor cycles, pleasure boats and private aircraft, contrary to Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals, 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 - Product containing 76.6% protein, 5% lactose and 2.1% fat, without detectable sugar, obtained by ultrafiltration - Classification under subheading 0404 90 33 of the Combined Nomenclature

Summary

The Common Customs Tariff must be interpreted as meaning that a product described as "75% whey protein concentrate", consisting as to 76.6% of protein, 5% of lactose and 2.1% of milk fat, without detectable sugar, obtained by the ultrafiltration of whey, must be classified under subheading 0404 90 33 of the Common Customs Tariff as "products consisting of natural milk constituents ..." in the version of that subheading in the annex to Commission Regulation No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. Such a product, which no longer displays the essential characteristics of whey, cannot be classified under subheading 0404 10 as "whey, whether or not concentrated ... not containing added sugar or other sweetening matter".
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1. Transport - Road transport - Social legislation - Undertaking - Concept

(Council Regulation No 3820/85, Art. 15)

2. Transport - Road transport - Social legislation - Obligation for Member States to penalize breaches of Community rules - Scope - Obligation to introduce into national law criminal liability of legal persons - None - Obligation to establish a system of strict liability - None

(EEC Treaty, Art. 5; Council Regulation No 3820/85, Arts 15 and 17(1) )

Summary

1. The expression "undertaking" appearing in Article 15 of Regulation No 3820/85 on the harmonization of certain social legislation relating to road transport refers to an autonomous natural or legal person, irrespective of legal form, regularly carrying on a transport business and empowered to organize and control the work of drivers and crew members.

2. Since Article 17(1) of Regulation No 3820/85 on the harmonization of certain social legislation relating to road transport provides only that Member States are to lay down penalties for breaches of the rules set out in the said regulation, it cannot be regarded, nor can Article 5 of the EEC Treaty, as requiring Member States to introduce into their national law the principle of criminal liability of legal persons. Infringements of Article 15 of the regulation, which imposes on the undertaking specific obligations to use its best endeavours, which are different from the obligations imposed on drivers, may be restrained by the application of provisions consistent with the basic principles of national criminal law, provided that the resulting penalties are effective, proportionate and dissuasive.

Moreover, since Member States retain a discretion in the choice of penalties, provided that they are appropriate, they are neither required to, nor precluded from, introducing a system of strict liability of the undertaking in the event of its employees' failing to comply with their obligations.
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1. Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Economic activities carried out independently within the meaning of Article 4 of the Sixth Directive - Activities such as those of tax collectors entrusted with the collection of local taxes in Spain

(Council Directive 77/388/EEC, Art. 4(1) and (4) )

2. Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Taxable persons - Bodies governed by public law - Activities engaged in as public authorities not taxable - Condition - Activity must be engaged in directly

(Council Directive 77/388/EEC, Art 4(5) )

Summary

1. Article 4(1) and (4) of the Sixth Directive (77/388/EEC) on the harmonization of the laws of the Member States relating to turnover taxes must be interpreted as meaning that an activity such as that carried out in Spain by zonal tax collectors, appointed by the local authority whose taxes they collect, must be regarded as being carried out independently because, besides the fact that such collectors are not paid a salary and are not bound to the commune by a contract of employment, the legal relationship on the basis of which they engage in their activity is not such as to constitute one of employer and employee vis-à-vis the local authority which uses their services.

2. Article 4(5) of the Sixth Directive (77/388/EEC) on the harmonization of the laws of the Member States relating to turnover taxes, which provides that bodies governed by public law are not to be considered taxable persons in respect of the activities or transactions in which they engage as public authorities, must be interpreted as meaning that it is not applicable when the activity of a public authority is not engaged in directly but is entrusted to an independent third party.
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1. Action for annulment - Measures against which actions may be brought - Measures intended to have legal effects - Code of conduct on the financial control of structural measures

(EEC Treaty, Art. 173)

2. Economic and social cohesion - Structural assistance - Financial control - Creation of obligations for Member States - Lack of competence of the Commission

(EEC Treaty, Arts 130a et seq. and 155; Council Regulations Nos 2052/88, Art. 4, and 4253/88, Art. 23)

Summary

1. An action for annulment lies against any measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects.

This applies to the Code of conduct on implementing provisions for Article 23 of Council Regulation (EEC) No 4253/88 concerning the coordination of the various structural assistance operations. The Code does not merely make more explicit the obligations to inform which Member States have under the aforesaid Article 23 but establishes specific obligations concerning the content of the information to be provided to the Commission and the frequency and means of communicating it, obligations which go beyond what is provided for in Article 23.

2. The Commission cannot derive the power from either Article 155 of the Treaty or Article 4 of Regulation No 2052/88 on the tasks of the Structural Funds to adopt an act imposing on Member States obligations that go beyond what is laid down in Article 23 of Regulation No 4253/88 regarding the coordination of the various structural operations.

Article 155 of the Treaty only gives the Commission the power to make recommendations and deliver opinions, which, according to Article 189 of the Treaty, are not binding on their addressees, whilst Article 4 of Regulation No 2052/88 merely indicates that the Commission may take initiatives and implementing measures in support of structural operations, with Community action nevertheless being conceived as complementing or contributing to national operations within the framework of concerted action involving the Commission, the Member State concerned and the competent authorities designated by the latter at the appropriate level and being confined to the preparation, financing, monitoring and assessment of operations. Moreover, according to Article 3 of Regulation No 2052/88, the arrangements for the verification of operations are to be laid down in the implementing Decisions adopted by the Council pursuant to Article 130e of the Treaty.

It follows that the Code of conduct on implementing provisions for Article 23 of Regulation No 4253/88 is an act which was adopted by an authority which had no power to adopt it and accordingly must be annulled.
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1. Officials - Remuneration - Taxation - Abatement for dependent child - Conditions of availability - Actual maintenance of the child by the official - Concept - Children for whom the army makes full provision during their military service - Excluded

(Staff Regulations, Annex VII, Art. 2(2); Regulation No 260/68 of the Council, Art. 3(4), second subparagraph)

2. Officials - Remuneration - Family allowances - Dependent child allowance - Relationship with tax abatement for a dependent child

(Staff Regulations, Annex VII, Art. 2(2); Regulation No 260/68 of the Council, Art. 3(4), second subparagraph)

Summary

1. The social objective pursued by the tax abatement for dependent children of Community officials requires account to be taken, in the application thereof, only of expenses justified by an existing and established need connected with the existence of a child and the actual maintenance of the child.

Whilst it is not impossible for a child to be considered to be actually maintained within the meaning of Article 2(2) of Annex VII to the Staff Regulations by a number of different persons or organizations at the same time and, in such a case, to be regarded as being simultaneously dependent on them, where the obligation to support the costs of maintaining a child no longer falls on the official concerned but falls entirely on another subject of law, the tax abatement becomes devoid of purpose.

Consequently, where the maintenance of young people doing military service is provided for entirely by the army, they cannot, for the duration of their military service, be regarded as dependent on the officials concerned or give rise to entitlement to a tax abatement.

2. Whilst it is true that there is no exact parallel between the dependent-child allowance and the tax abatement granted for the same reasons, the fact nevertheless remains that, pursuing as they do the same social objective and reflecting the same concern, the provisions relating to the dependent-child allowance may be taken into account to corroborate the interpretation of the provisions relating to tax abatements for dependent children.
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Free movement of persons - Workers - Equal treatment - Freedom to provide services - Restrictions - Free movement of capital - Deductibility from taxable income of certain contributions relating to the insurance of individuals- Deductibility conditional on payment to an organization established in the territory where the tax is levied - Possible justification of the restriction by reason of the need to safeguard the cohesion of the tax system

(EEC Treaty, Arts 48, 59, 67 and 106)

Summary

Legislation of a Member State which makes the deductibility of sickness and invalidity insurance contributions or pension and life assurance contributions conditional on those contributions being paid in that State is contrary to Articles 48 and 59 of the Treaty. However, that condition may be justified by the need to safeguard the cohesion of the applicable tax system.

That need may exist, for example, where the tax system of a Member State is such that the deductibility of the contributions is offset by the taxation of payments made by insurers pursuant to the contracts, and vice versa, and where it would be impossible to ensure that the deductions were offset by subsequent taxation of payments because payments arising from the deductible contributions were made by a foreign insurer established in another country where there would be no certainty of subjecting them to tax.

Such legislation is not incompatible with Articles 67 and 106 of the Treaty.
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1. Convention on Jurisdiction and the Enforcement of Judgments - Special jurisdiction - Jurisdiction "in matters relating to tort, delict or quasi-delict" - Concept - "Action paulienne" - Not included

(Convention of 27 September 1968, Art.5(3))

2. Convention on Jurisdiction and the Enforcement of Judgments - Exclusive jurisdiction - "Proceedings concerned with the enforcement of judgments" - Concept - Disputes regarding the action of authorities responsible for enforcement - "Action paulienne" - Not included

(Convention of 27 September 1968, Art.16(5))

3. Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction to adopt provisional or protective measures - Concept of provisional or protective measures - Measures seeking to maintain a factual or legal situation pending a decision on the substance of the matter - "Action paulienne" - Not included

(Convention of 27 September 1968, Art. 24)

Summary

1. An action provided for by national law, such as the so-called "action paulienne" in French law, the purpose of which is not to have the debtor ordered to make good the damage he has caused his creditor by fraudulent conduct, but to render ineffective, as against his creditor, the disposition which the debtor has made, cannot be regarded as a claim seeking to establish the liability of a defendant in the sense in which it is understood in Article 5(3) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Such an action therefore does not come within the scope of that provision.

2. Article 16(5) of the Convention confers exclusive jurisdiction on the courts of the place in which the judgment has been or is to be enforced to deal with proceedings which may arise from recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments.

An action such as the action paulienne, by which the creditor seeks to obtain the revocation with regard to himself of the transaction whereby the debtor has effected a disposition in fraud of the creditor' s rights and which therefore seeks to protect whatever security the creditor may have with a view to a subsequent enforcement of the obligation of his debtor, is not intended to obtain a decision in such proceedings and does not therefore come within the scope of that provision.

3. Provisional or protective measures within the meaning of Article 24 must be understood as being measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter.

Whilst an action such as the action paulienne enables the creditor' s security to be protected by preventing the dissipation of his debtor' s assets, its purpose is that the court may vary the legal situation of the assets of the debtor and that of the beneficiary of the disposition effected by the debtor, and it cannot be described as a provisional or protective measure.
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1. Transport ° Establishment of a common policy ° Standstill rule in Article 76 of the Treaty ° Scope ° Road transport ° Introduction by a Member State of a tax on the use of roads by heavy goods vehicles and concurrent reduction in the tax on motor vehicles paid by national carriers ° Not permissible

(EEC Treaty, Art. 76)

2. Member States ° Obligations ° General obligation under Article 5 of the Treaty ° Concrete expression of that obligation in a given sphere by means of a specific article ° Declaration of failure to fulfil obligations solely with respect to the specific article

(EEC Treaty, Arts 5 and 76)

Summary

1. National legislation introducing a tax on the use of roads by heavy goods vehicles, payable by all users without distinction on grounds of nationality, and concurrently reducing the tax on motor vehicles, a reduction available only to national carriers, has the effect of altering unfavourably the situation of carriers from other Member States in relation to that of national carriers.

For that reason such legislation, even if it is limited in time, pending action by the Council to implement a common policy in that sector, and is intended to contribute to the protection of the environment, one of the essential objectives of the Community, conflicts with Article 76 of the Treaty by encouraging, by the increase in the contribution from heavy goods vehicles to the costs of road infrastructure, a switch from carriage by road to other modes of transport. In order to avoid increasing the difficulties to be overcome in establishing a common transport policy, Article 76 provides that until the provisions referred to in Article 75(1) have been laid down no Member State may, without the unanimous approval of the Council, make the various provisions governing the subject when the Treaty enters into force less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State, and must, having regard to its objective, be construed as also prohibiting a Member State from withdrawing from carriers from other Member States the benefits of certain measures that may have been adopted with a view to rendering their situation more favourable in relation to that of national carriers.

2. Since Article 76 of the Treaty constitutes, in the sphere of transport, the concrete expression of the general obligation, imposed on Member States by Article 5 of the Treaty, to abstain from any measures which could jeopardize the attainment of the objectives of the Treaty, the effect of a declaration that a Member State has failed to fulfil its obligations under Article 76 is that there is no need for the Court to find a specific failure by that Member State of Article 5.