ddrg/super_eurlex huggingface dataset:
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Free movement of goods – Quantitative restrictions – Measures having equivalent effect

(Arts 28 EC and 30 EC)

Summary

A Member State which requires a person resident in that State and wishing to import a vehicle lawfully registered and used in another Member State to apply for the issue of a transfer licence for the purpose of putting that vehicle into circulation before its registration and before the payment of vehicle taxes fails to fulfil its obligations under Articles 28 EC and 30 EC.

Such a transfer licence system, having regard to the formalities which it imposes, is capable of hindering intra‑Community trade in motor vehicles and impeding access to the market for goods which are lawfully produced and/or sold in other Member States, particularly since steps must be taken by the holder of a motor vehicle that comes from another Member State before it may be lawfully used, since the issue of a transfer licence is not subject to a time‑limit from the lodging of the application for its grant and is not obligatory for the competent authorities, and since it is valid only for a short period.

Pursuit of the objective of road safety, allowing vehicles to be precisely identified, is not such as to justify a transfer licence procedure, since, in any event, pending the final registration of the vehicles in the Member State concerned, their technical characteristics may be identified, whatever the Member State in which they are registered, because all Member States have a vehicle registration system.

Moreover, even if the Member State concerned may legitimately introduce supervision procedures enabling it to identify vehicles which can be temporarily exempted from vehicle taxes, neither can the need to ensure effective fiscal supervision justify such a system, since it has not been shown that less restrictive measures, such as the establishment of a compulsory system for declaring the fact of a vehicle’s having been put into circulation, accompanied by appropriate penalties, could not bring about a similar result.

(see paras 29, 32-34, 37, 40, 42-44, 46-47, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax

(Council Directive 77/388, Art. 17(2))

Summary

Article 17(2) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that the costs for advisory services which a taxable person obtains with a view to establishing the amount of a claim forming part of his company’s assets and relating to a sale of shares prior to his becoming liable to VAT do not, in the absence of evidence establishing that the exclusive reason for those services is to be found in the economic activity, within the meaning of that directive, carried out by the taxable person, have a direct and immediate link with that activity and, consequently, do not give rise to a right to deduct the VAT charged on them.

(see para. 38, operative part)
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1. Freedom of movement for persons – Freedom of establishment – Free movement of capital – Provisions of the Treaty – Scope

(Arts 43 EC and 56 EC)

2. Free movement of capital – Restrictions on movements of capital to or from non-member countries

(Arts 56 EC and 57(1) EC)

Summary

1. National legislation which makes the receipt of dividends liable to tax, where the rate depends on whether the source of those dividends is national or otherwise, irrespective of the extent of the holding which the shareholder has in the company making the distribution, may fall within the scope of both Article 43 EC on freedom of establishment and Article 56 EC on free movement of capital.

However, the provisions of the chapter of the Treaty concerning freedom of establishment cannot be relied on in a situation where a shareholder receives dividends from a company established in a non-member country. That chapter does not include any provision extending its application to situations which involve the establishment in a non-member country of a Member State national or of a company incorporated under the legislation of a Member State.

(see paras 24, 28-29)

2. Article 57(1) EC must be interpreted as meaning that Article 56 EC is without prejudice to the application by a Member State of legislation which existed on 31 December 1993 under which a shareholder in receipt of dividends from a company established in a non-member country, who holds two thirds of the share capital in that company, is taxed at the ordinary rate of income tax, whereas a shareholder in receipt of dividends from a resident company is taxed at a rate of half the average tax rate.

Even if such a shareholder were entitled to rely on Article 56 EC, a restriction on capital movements involving direct investments, such as a less favourable tax treatment of foreign-sourced dividends, comes within the scope of Article 57(1) EC, inasmuch as it relates to holdings acquired with a view to establishing or maintaining lasting and direct economic links between the shareholder and the company concerned and which allow the shareholder to participate effectively in the management of the company or in its control, which is true of less favourable tax treatment of foreign-sourced dividends associated with a shareholding of two thirds of the shares of the company making the distribution.

(see paras 36-38, 44-45, operative part)
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Agriculture – Common organisation of the markets – Export refunds

(Commission Regulation No 3665/87, Arts 11(3), first para., 47(2) and 48(2)(a))

Summary

An export refund can not be regarded as ‘unduly paid’, within the meaning of the first sentence of the first subparagraph of Article 11(3) 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 604/98, if the beneficiary, in the context of a recovery procedure for the refund, produces the necessary evidence to justify its right to that refund. It is a matter for the competent national authorities to set a reasonable time-limit which allows the beneficiary to produce this evidence.

As the time-limits referred to in Articles 47(2) and 48(2)(a) of Regulation No 3665/87 are not applicable to the recovery procedure and as there are no specific Community law rules prescribing the time-limits for the presentation of supplementary evidence in the context of a recovery procedure, it is a matter for the competent national authorities, in accordance with national law, and subject to the limits imposed by Community law, to grant a supplementary period on the basis of the specific circumstances of each case. The period allowed must be reasonable in order to allow the exporter to obtain and produce the required documentation and must take account of, in particular, any effect of the actions of the competent authority on the exporter.

(see paras 27-28, operative part)
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1. Appeals – Grounds – Distortion of the clear sense of the evidence – Findings of fact from the Court’s file substantially incorrect – Admissibility

(Art. 225 CE)

2. Appeals – Grounds – Distortion of the clear sense of the evidence – Definition – Clear misassessment of the evidence

3. Agriculture – Approximation of laws – Placing of plant protection products on the market – Directive 91/414

(Council Directive 91/414, Art. 19 and Annex I)

Summary

1. Complaints based on findings of fact and on the assessment of those facts in a judgment under appeal are admissible on appeal where the appellant submits that the Court of First Instance has made findings of fact which the documents in the file show to be substantially incorrect or that it has distorted the clear sense of the evidence before it.

(see para. 57)

2. There is distortion of the clear sense of the evidence where, without recourse to new evidence, the assessment of the existing evidence by the Court of First Instance appears to be clearly incorrect. That is the case in particular where the inferences drawn by the Court of First Instance from certain documents are not consistent with the meaning and implications of those documents read as a whole.

(see paras 60, 63)

3. As is clear from Recitals 5, 6 and 9 in the preamble thereto, Directive 91/414 concerning the placing of plant protection products on the market seeks to remove barriers to intra-Community trade in those products, while maintaining a high level of protection of the environment and of human and animal health. In that context, if the Commission is to be able to pursue effectively the objective assigned to it, account being taken of the complex technical assessments which it must undertake, it must be recognised as enjoying a broad discretion.

However, the exercise of that discretion is not excluded from review by the Court. In the context of such review the Community judicature must verify whether the relevant procedural rules have been complied with, whether the facts admitted by the Commission have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.

In particular, where a party claims that the institution competent in the matter has committed a manifest error of appraisal, the Community judicature must verify whether that institution has examined, carefully and impartially, all the relevant facts of the individual case, facts which support the conclusions reached.

(see paras 74-77)
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1. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Article 5(1), second subparagraph – Scope

(Protocol integrating the Schengen acquis into the framework of the European Union, Arts 4 and 5(1), second para.)

2. Visas, asylum, immigration – Crossing of the external borders of the Member States – Common rules on standards and procedures for border controls

(Protocol integrating the Schengen acquis into the framework of the European Union, Art. 5(1), first para.; Council Regulation No 2007/2004, first, second and third recitals and Arts 1(1) and (2), and 2)

Summary

1. The second subparagraph of Article 5(1) of the Protocol integrating the Schengen acquis into the framework of the European Union must be understood as applicable only to proposals and initiatives to build upon an area of the Schengen acquis which the United Kingdom and/or Ireland have been authorised to take part in pursuant to Article 4 of that protocol.

(see para. 68)

2. Checks on persons at the external borders of the Member States and consequently the effective implementation of the common rules on standards and procedures for those checks must be regarded as constituting elements of the Schengen acquis within the meaning of the first subparagraph of Article 5(1) of the Protocol integrating the Schengen acquis into the framework of the European Union.

Therefore, Regulation No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, which is intended, as regards both its purpose and its content, to improve those checks, must be regarded as constituting a measure to build upon that acquis. Firstly, it is apparent from the first three recitals in the preamble to that regulation and from Article 1(1) and (2) thereof that it is intended to improve the integrated management of external borders and to facilitate and render more effective the application of the common rules on standards and procedures for the control of those borders. Secondly, the Agency set up by that regulation has the task, as may be seen from recital 3 and Article 2 thereof, in particular, of coordinating operational cooperation between Member States in the field of management of external borders, assisting Member States in the training of national border guards, and providing Member States, where circumstances require, with increased technical and operational assistance at external borders.

The common rules referred to by Regulation No 2007/2004 which are to be applied in connection with the integrated management of external borders were laid down in the Common Manual adopted by the Executive Committee established by the Convention implementing the Schengen Agreement (CISA), which was established with a view to implementing the provisions of Chapter 2, ‘Crossing external borders’, of Title II of the CISA and forms part of the Schengen acquis as referred to in Article 1 of the Schengen Protocol.

(see paras 79-82, 84-85)
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1. Actions for failure to fulfil obligations – Subject-matter of the dispute

(Art. 226 EC)

2. Freedom of movement for persons – Freedom of establishment – Restrictions – National legislation on the exercise of the health professions

(Arts 12 EC and 43 EC)

Summary

1. An action for failure to fulfil obligations is admissible against a Member State in respect of transitional provisions which reserve the possibility of practising under that State’s sickness insurance schemes solely to psychotherapists who practised under those schemes in a region of that State during the reference period and refuse to grant that possibility to psychotherapists who practised during the same period outside that State under the sickness insurance schemes of another Member State, since the exclusion of the latter from the benefit of the transitional provisions is not limited in time but permanent in nature and, in particular, lasted beyond the expiry of the period laid down in the reasoned opinion.

(see paras 17-20)

2. A Member State fails to fulfil its obligations under Article 43 EC by reserving transitional provisions or ‘established rights’, which permit psychotherapists to obtain authorisation or admission to practise independently of the applicable rules of the statutory sickness insurance scheme, solely to psychotherapists who have practised in a region of that Member State under national statutory sickness insurance schemes and by failing to take account of comparable or similar professional activity performed by psychotherapists in other Member States. The condition requiring practice as a psychotherapist in a region of the Member State concerned under its statutory sickness insurance scheme, even if applicable to all, makes entitlement to a right subject to a condition of residence in a region of that Member State, and thereby favours nationals of that Member State over nationals of other Member States, contrary to the principle of non-discrimination laid down in Article 12 EC.

Such a restriction on the freedom of establishment of natural persons cannot be justified by the objective of protecting an established right, namely the retention of patients following several years of professional activity, since it goes beyond what is necessary to attain that objective.

(see paras 56-57, 63, 65, 73, 76, operative part)
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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable persons

(Council Directive 77/388, Art. 4(5), and Annex D, point 2)

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Member States’ option to apply a reduced rate to certain supplies of goods and services

(Council Directive 77/388, Art. 12(3)(a), and Annex H)

Summary

1. Article 4(5) of Sixth Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes and point 2 of Annex D thereto must be interpreted as meaning that the laying of a mains connection which consists in the installation of piping permitting the connection of a building’s water system to the fixed water supply network forms part of the supply of water, listed in that annex, since, first, the objective of the third subparagraph of Article 4(5) of the Sixth Directive is to ensure that the categories of economic activity of a certain importance that are listed in Annex D, which include the supply of water, are not exempted from value added tax on the ground that the service is rendered by a public body and, secondly, the supply of water is characterised by making water available to the public and a mains connection is essential for making it available. Consequently, a body governed by public law acting as a public authority is a taxable person in respect of that transaction.

(see paras 35, 37, operative part 1)

2. Article 12(3)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes and Category 2 of Annex H thereto must be interpreted as meaning that the laying of a mains connection which consists in the installation of piping permitting the connection of a building’s water system to the fixed water supply network forms part of water supplies.

While the Sixth Directive does not define the concept of water supply, it is also not apparent from its provisions that that term should be interpreted differently according to the annex in which it is mentioned. Since a mains connection is essential in order to make water available to the public, such a connection also forms part of the water supplies referred to in Category 2 of Annex H to the Sixth Directive.

Furthermore, Member States may apply a reduced rate of value added tax to concrete and specific aspects of water supplies, such as the laying of mains connections, provided that they comply with the principle of fiscal neutrality inherent in the common system of value added tax.

(see paras 40, 44, operative part 2)
1.

Declares that, by failing, with regard to the province of Åland, to adopt the laws regulations and administrative provisions necessary to comply with Directive 2003/87/EEC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, the Finnish Republic has failed to fulfil its obligations under that directive;
Judgment of the Court (Fifth Chamber) of 18 May 2006 – Commission v Luxembourg

(Case C-354/05)

Failure of a Member State to fulfil obligations – Directive 2003/55/EC – Internal market in natural gas

1. Acts of the institutions – Directives – Implementation by the Member States (Art. 249, third para., EC) (see para. 6)

2. Actions for failure to fulfil obligations – Examination of merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 7)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).

Operative part

The Court:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that Directive;
Judgment of the Court (Third Chamber) of 18 July 2007 – Commission v Greece

(Case C‑399/05)

Failure of a Member State to fulfil obligations – Directive 93/38/EEC – Procurement in the water, energy, transport and telecommunications sectors – Construction and bringing into operation of a thermal power station – Conditions of admission to the tendering procedure

1. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 (Council Directive 93/38) (see para. 22)

2. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 (Council Directive 93/38) (see paras 28, 35, 45)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 4(2) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) – Admission of the tenders of two companies not meeting the conditions of the notice to tender or of the specification – Construction and bringing into operation of a thermal power station at Lavrio.

Operative part

The Court:

Dismisses the action.
Judgment of the Court (Second Chamber) of 17 July 2008 – Commission v Italy

(Case C‑371/05)

Failure of a Member State to fulfil obligations – Directive 92/50/EEC – Articles 11 and 15(2) – Public service contracts – Award of IT services for the commune of Mantova (Italy) – Direct award without prior publication of a notice to tender

Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Scope – Contracting authority holding shares in a company which is legally separate from it with one or more bodies constituted under private law (Council Directive 92/50) (see paras 22, 24, 26, 29-33)

Re:

Failure of a Member State to fulfil obligations – Infringement of Articles 11 and 15(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) – Award of IT services for the Commune di Mantova – Direct award without prior publication of a contract notice.

Operative part:

The Court:

1. Dismisses the action;
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13B(a))

Summary

By levying value added tax on road assistance services that a body undertakes to provide to its members, in return for the payment by those members of a fixed annual subscription, should the risk of breakdown or accident covered by that body materialise, a Member State fails to fulfil its obligations under Article 13B(a) of Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes. Such services fall within the definition of ‘insurance transactions’ referred to in that article, and must consequently be exempt from value added tax.

(see paras 14-15, operative part)
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Subject of the case

Operative part



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Actions for failure to fulfil obligations

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Examination of merits by the Court

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Situation to be taken into consideration

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Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 6

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to transpose, within the prescribed period, Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1).

Operative part

Operative part

The Court:

1. Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, the Czech Republic has failed to fulfil its obligations under Article 44 of that directive;

2. Orders the Czech Republic to pay the costs.