ddrg/super_eurlex huggingface dataset:
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Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation at the end of the period laid down in the reasoned opinion

(Art. 226 EC)
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1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Economic activity within the meaning of Article 4 of the Sixth Directive – Collective investment in transferable securities of capital raised from the public – Included

(Council Directive 77/388, Art. 4(2))

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable persons – Definition – Open-ended investment companies (SICAVs) which have as their sole object the collective investment in transferable securities of capital raised from the public – Included – Place where services are provided to such bodies established in a Member State other than that of the supplier of the services – Place where the bodies have established their business

(Council Directive 77/388, Arts 4 and 9(2)(e))

Summary

1. The activity consisting in the collective investment in transferable securities of capital raised from the public, for a fee, which goes beyond the compass of the simple acquisition and the mere sale of securities and which aims to produce income on a continuing basis, constitutes an economic activity within the meaning of Article 4(2) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.

(see paras 42-43)

2. Open-ended investment companies (SICAVs) which have as their sole object the collective investment in transferable securities of capital raised from the public in accordance with Directive 85/611 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) are taxable persons within the meaning of Article 4 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes so that, where services referred to in Article 9(2)(e) of that directive are supplied to such SICAVs which are established in a Member State other than that of the supplier of the services, the place where those services are provided is the place where the SICAVs have established their business.

(see para. 48, operative part)
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Approximation of laws – Restrictions on the marketing and use of dangerous substances – Directive 76/769, as amended by Directive 94/60 – Derogation for ‘artists’ paints’ – Application to siccatives – Excluded

(Council Directives 76/769, Annex I, point 31(e), as amended by Directive 94/60, and 88/379)

Summary

The provisions of Community law relating to restrictions on the placing on the market of dangerous substances or preparations, in particular the provisions of Directive 76/769 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations, as amended by Directive 94/60, prohibit the placing on the market for sale to the general public of siccatives containing lead compounds classified as toxic for reproductive purposes.

In particular, the derogation from the restrictions on placing on the market laid down in point 31(e) of Annex I to Directive 76/769 for ‘artists’ paints’ covered by Directive 88/379 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations cannot be applied to those products, since that derogation cannot be extended to products such as siccatives which lack colouring properties.

(see paras 32, 34, operative part)
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Officials – Invalidity pension – Initiation of the invalidity procedure – Conditions

(Staff Regulations, Art. 78; Annex VIII, Art. 13)

Summary

It follows from the unequivocal provisions of Article 13 of Annex VIII to the Staff Regulations which lays down, in accordance with Article 78 of the Staff Regulations, the conditions on which an official is entitled to an invalidity pension, that the procedure to establish invalidity may be initiated only in relation to an official who is obliged to end his service with the Communities because he is suffering from an invalidity preventing him from performing his duties. It follows that an official who has left the service several years ago and who suffers from an illness which would render him incapable of performing his duties if he were still in active employment is not entitled to request, on that ground alone, the initiation of the procedure to establish invalidity.

(see paras 39-40)
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1. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – To be exercised at its discretion – Limits

(Art. 141 EA)

2. Actions for failure to fulfil obligations – Subject-matter of the proceedings – Specification in the pre-litigation procedure – Fundamental change in the national provisions between the expiry of the period laid down for compliance with the reasoned opinion and the lodging of the application – New reasoned opinion

(Art. 141 EA)

Summary

1. Under the system established by Article 141 EA, the Commission enjoys a discretion as to whether to bring proceedings for failure to fulfil obligations and it is not for the Court to consider whether the exercise of that discretion is appropriate. By contrast, it is incumbent on the Court to consider, if appropriate, whether an action under that article is inadmissible as having been brought out of time or as constituting a misuse of procedure.

(see paras 16-17)

2. The proper conduct of the pre-litigation procedure provided for in Article 141 EA constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter.

Thus, where the relevant national provisions have fundamentally changed between the expiry of the period laid down for compliance with the reasoned opinion and the lodging of the application, that change in circumstances may render the judgment to be given by the Court otiose. In such situations, it may be preferable for the Commission not to bring an action but to issue a new reasoned opinion precisely identifying the complaints which it intends pursuing, having regard to the changed circumstances.

(see paras 20-21)
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Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Scope – Duty levied on securities intermediaries on the gross profits from activities related to those securities – Not included

(Council Directive 69/335, Arts 4, 10 and 11)

Summary

Directive 69/335 concerning indirect taxes on the raising of capital is to be interpreted as meaning that it does not preclude the levying on securities intermediaries of a duty on the gross profits from activities related to those securities, as such a duty does not fall within the scope of the directive.

First, the event giving rise to the duty is not the carrying-out of a specific transaction such as those referred to in Articles 4, 10 and 11 of the directive but the exercise of a wide range of activities in connection with securities in general.

Second, as the taxable base is made up of the gross profits made by the securities intermediaries in the exercise of various activities, the duty is more in the nature of a direct tax on income and therefore falls within a category of taxes not covered by Directive 69/335.

(see paras 31-35, operative part)
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Approximation of laws – Pharmaceutical products – Directive 89/105 – Medicinal products for human use – Application for entry of a medicinal product on the list of medicinal products covered by the national sickness insurance scheme – Mandatory nature of the time-limit for determining the application – Annulment of the decision determining the application – Adoption of a new decision – Whether permissible – Conditions – Observance of the time-limit for determining the application

(Council Directive 89/105, Art. 6(1), first subpara.)

Summary

The time-limit for determining an application for entry of a medicinal product on the list of medicinal products covered by the national sickness insurance scheme which is laid down in the first subparagraph of Article 6(1) of Directive 89/105 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems is a mandatory time-limit which the national authorities are not entitled to exceed.

It is for the Member States to determine whether the fact that that time-limit is exceeded precludes the competent authorities from formally adopting a new decision when the previous decision has been annulled in court proceedings, although such a possibility can be exercised only within a reasonable time which may not in any event exceed the time-limit laid down in that article.

(see paras 30, 39, operative part 1-2)
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1. Freedom of movement for persons – Freedom of establishment – Restrictions – National legislation prohibiting a qualified optician from operating more than one optician’s shop – Not permitted – Justification – None

(Art. 43 EC)

2. Freedom of movement for persons – Freedom of establishment – Restrictions – National legislation limiting the possibility for a natural person of opening an optician’s shop – Not permitted – Justification – None

(Arts 43 EC and 48 EC)

Summary

1. By enacting and maintaining in force a national law which does not permit a qualified optician as a natural person to operate more than one optician’s shop, a Member State fails to fulfil its obligations under Article 43 EC. Such a restriction on the freedom of establishment of natural persons cannot be justified by the objective of protecting public health, in so far as it goes beyond what is required in order to achieve that objective.

(see paras 35-36, 38, operative part 1)

2. By enacting and maintaining in force a national law which makes the possibility for a natural person of opening an optician’s shop subject to the following conditions

- authorisation for the establishment and operation of the optician’s shop must have been granted to a recognised optician who is a natural person, the person holding the authorisation to operate the shop must hold at least 50% of the company’s share capital and must participate at least to that extent in the profits and losses of the company, and the company must be in the form of a collective or limited partnership, and

- the optician in question may participate at most in one other company owning an optician’s shop, subject to the condition that the authorisation for the establishment and operation of that shop is in the name of another authorised optician.

a Member State fails to fulfil its obligations under Article 43EC and 48 EC.

Such a restriction on the freedom of establishment of natural persons cannot be justified by the objective of protecting public health where it goes beyond what is required in order to achieve that objective.

(see paras 35-36, 38, operative part 2)
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Agriculture — Common organisation of the markets — Functioning — Producer prices — Fixing — Community legislation — Member State intervention — Limits — Milk and milk products — National provisions instituting a mechanism reducing the price of milk on the basis of quality criteria, favouring only dairy farmers who meet those quality criteria — Not permissible

(Council Regulation No 804/68, as modified by Regulation No 1538/95)

Summary

In a sector covered by a common organisation, a fortiori where that organisation is based on a common pricing system, Member States can no longer take action, through national provisions taken unilaterally, affecting the machinery of price formation at the production and marketing stages established under the common organisation. They may, however, adopt measures intended to remove a distortion of competition, since measures of that kind do not as such affect the fixing of prices but rather seek to safeguard the proper working of the machinery for setting prices in order to achieve price levels which serve the interests of both producers and consumers.

The machinery of price formation governed by Regulation No 804/68 on the common organisation of the market in milk and milk products, as modified by Regulation No 1538/95, is, however, affected by the system which, whatever its alleged or stated objective may be, institutes a mechanism under which:

– on the one hand, dairies are required to withhold deductions from the price of milk delivered to them when that milk does not meet certain quality criteria and,

– on the other hand, the amount thus withheld over a given period by all the dairies is aggregated before being redistributed, after possible financial adjustments between the dairies, in the form of supplements identical in amount paid by each dairy, per 100 kilograms of milk delivered to it during that period, to those dairy farmers alone who have delivered milk meeting those quality criteria.

(see paras 42-43, 53, operative part)
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1. Association of the overseas countries and territories — Safeguard measures — Conditions for establishment — Discretion of the Community institutions — Judicial review — Limits

(Council Decision 91/482, Art. 109)

2. Association of the overseas countries and territories — Safeguard measures concerning imports from the overseas countries and territories of sugar sector products with EC/OCT cumulation of origin — Principle of proportionality — Judicial review — Limits

(Council Decision 91/482, Art. 109(2))

3. Association of the overseas countries and territories — Safeguard measures concerning imports from the overseas countries and territories — Safeguard measures which do not put in question the preferential status of goods originating in those countries — Exceptional and temporary nature of those measures

(Council Decision 91/482, Art. 109(1))

Summary

1. The Community institutions have been given a wide discretion in the application of Article 109 of Decision 91/482 on the association of the overseas countries and territories, which empowers them to take or authorise safeguard measures when certain conditions are met. In those circumstances, the Community Courts must restrict themselves to considering whether the exercise of that discretion contains a manifest error or constitutes a misuse of power or whether the Community institutions clearly exceeded the bounds of their discretion. The depth of the Court’s review must be limited in particular where the Community institutions have to reconcile divergent interests and thus select options within the context of the policy choices which are their own responsibility.

The status of that provision as an exception, which flows from its very nature, does not in any way diminish the discretion which the Commission has when it has the difficult task of reconciling divergent interests within the context of the policy choices which are its own responsibility.

(see paras 52-54, 56)

2. As regards judicial review of compliance with the principle of proportionality laid down in Article 109(2) of Decision 91/482 on the association of the overseas countries and territories, bearing in mind the wide discretionary power enjoyed by the Commission in particular in matters concerning safeguard measures provided for in Article 109(1) of that decision, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue.

(see para. 86)

3. Article 109 of Decision 91/482 on the association of the overseas countries and territories (OCTs) expressly authorises the Commission to take safeguard measures in the situations to which it refers. The fact that the Commission adopted this type of measure in respect of certain products originating in the OCTs does not undermine the preferential status which products originating in those countries enjoy under Article 101(1) of that decision, a safeguard measure being, by its very nature, exceptional and temporary.

(see para. 94)
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International agreements — EEC-Turkey Association Agreement — Association Council established by the EEC-Turkey Association Agreement — Decision No 1/80 — Family reunification — Access by family members of a Turkish worker duly registered as belonging to the labour force of a Member State to paid employment of their choice in that Member State — Limitation of rights on account of a prolonged absence from the labour market as a result of a term of imprisonment followed by drug treatment or on account of the fact that the family members ceased to reside with the Turkish worker — Not permissible

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, first para.)

Summary

A Turkish national who is a family member of a Turkish worker who, after having been legally resident for at least five years in the host Member State, enjoys the right of free access to any paid employment of his choice under the second indent of the first sentence of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council, does not forfeit that right either as a result of his prolonged absence from the labour market due to imprisonment, even for a period of several years, followed by long-term drug treatment, or on account of the fact that at the time of the decision to expel him the person concerned was an adult and no longer resided with the Turkish worker from whom he derived his right of residence, but lived independently.

(see para. 32, operative part)
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Agriculture — Common organisation of the markets — Export refunds — Differentiated refund — Re-export of goods to the Community after clearance through customs for release for consumption in a non-member country — Right to obtain a differentiated export refund — Condition — Substantial processing or working of the product — Exception — Presence of action constituting an abusive practice — Inspection incumbent on the national courts

(Council Regulation No 2913/92, Art. 24; Commission Regulations Nos 3665/87, Art. 17(3), and 1384/95)

Summary

The condition for obtaining a differentiated export refund laid down in Article 17(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 1384/95, as regards in particular the adjustments necessary for the implementation of the Uruguay Round Agreement on Agriculture, namely clearance through customs for release of the product concerned for consumption in the non-member country of destination, is fulfilled where that product, on which import duties were paid in that country, undergoes substantial processing or working there within the meaning of Article 24 of Regulation No 2913/92 establishing the Community Customs Code, even if the product deriving from such processing or working is then re-exported to the Community, with reimbursement of the duties levied in that country and payment of customs import duties in the Community.

If the subsequent reimbursement of duties levied on an economic operator other than the exporter retroactively removed the legal basis of the export refund, the exporter would be placed in a position of uncertainty, arguably in breach of the principle of legal certainty, and his right to a refund would depend on events or commercial conduct outside his control.

That situation must, however, be distinguished from cases in which the exporter himself has participated in an abusive practice, in which case reimbursement of the export refund may nevertheless be required if the national court considers that evidence of an abusive practice has been produced, in accordance with the rules of national law.

(see paras 36, 41, operative part)
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Freedom of movement for persons – Freedom of establishment – Tax legislation

(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC) and Art. 58 (now Art. 48 EC))

Summary

Article 52 of the Treaty (now, after amendment, Article 43 EC) and Article 58 of the Treaty (now Article 48 EC) preclude a national law which, in the case of a branch of a company having its seat in another Member State, lays down a tax rate on the profits of that branch which is higher than that on the profits of a subsidiary of such a company where that subsidiary distributes its profits in full to its parent company.

The second sentence of the first paragraph of Article 52 of the Treaty expressly leaves traders free to choose the appropriate legal form in which to pursue their activities in another Member State and that freedom of choice must not be limited by discriminatory tax provisions. The freedom to choose the appropriate legal form in which to pursue activities in another Member State thus primarily serves to allow companies having their seat in a Member State to open a branch in another Member State in order to pursue their activities under the same conditions as those which apply to subsidiaries. The refusal to apply the reduced tax rate to branches renders the possibility, for companies having their seat in another Member State, of exercising the right to freedom of establishment through a branch less attractive and thus restricts the freedom to choose the appropriate legal form in which to pursue activities in another Member State.

It is for the national court to determine the tax rate which must be applied to the profits made by a branch by reference to the overall tax rate which would have been applicable if the profits of a subsidiary had been distributed to its parent company.

(see paras 14-15, 17, 31, 37, operative part 1-2)