ddrg/super_eurlex huggingface dataset:
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Approximation of laws — Review procedures concerning the award of public supply and public works contracts — Directive 89/665 — Obligation of the Member States to provide for a review procedure — Availability of review procedures — National legislation prohibiting members of a tendering consortium which has no legal personality from bringing an action individually — Whether permissible

(Council Directive 89/665, Art. 1)

Summary

Article 1 of Council Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50 relating to the coordination of procedures for the award of public service contracts, is to be interpreted as not precluding national law from providing that only the members of a consortium without legal personality which has participated, as such, in a procedure for the award of a public contract and has not been awarded that contract, acting together, may bring an action against the decision awarding the contract and not just one of its members individually.

The same is true if all the members of such a consortium act together but the application of one of its members is held inadmissible.

In both cases, the national rules require only that applicants comply with the conditions relating to representation in legal proceedings in accordance with the legal form which the members have themselves chosen. Such requirements are general in application and do not limit the efficacy and availability of review procedures to tenderers in a manner contrary to Directive 89/665.

(see paras 28-29, operative part)
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1. Approximation of laws – Quality of bathing water – Directive 76/160 – Obligation for Member States to designate bathing areas officially – No such obligation

(Council Directive 76/160, Arts 1(2)(a) and 4(1))

2. Approximation of laws – Quality of shellfish waters – Directive 79/923 – Definition of shellfish waters – Waters harbouring shellfish intended for direct human consumption or for consumption after treatment – Included

(Council Directive 79/923, Art. 1)

Summary

1. Article 4(1) of Directive 76/160 concerning the quality of bathing water does not impose on Member States the obligation to designate bathing areas officially. Article 1(2)(a) of that directive, which defines bathing waters, shows that it is permissible for Member States to allow bathing in certain waters without necessarily designating them as bathing areas.

(see paras 15-16, 18)

2. It is apparent from the wording of Article 1 of Directive 79/923 on the quality required of shellfish waters, and from the 3rd, 7th and 10th recitals in the preamble thereto, that that directive applies to all shellfish waters, whether the shellfish living in them are intended for direct human consumption or for consumption after treatment.

(see paras 22, 24)
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Agriculture – Common organisation of the markets – Milk and milk products – Export refunds – Products conferring entitlement thereto – Cheese intended by its nature for processing in a third country – Included – Condition – Classification under one of the agricultural product nomenclature codes

(Commission Regulations No 1706/89, Annex, and No 3445/89, Annex)

Summary

Cheese exported in 1990 which, by its nature, is intended for processing in a third country may be covered by an export refund under Article 17(1) of Regulation No 804/68 on the common organisation of the market in milk and milk products, as amended by Regulation No 3904/87, provided that it is classified, taking account of its type and composition, under one of the product codes in the annex to Regulation No 1706/89 fixing the export refunds on milk and milk products, as defined by the agricultural product nomenclature for export refunds annexed to Regulation No 3445/89 establishing the full version, applicable from 1 January 1990, of the agricultural product nomenclature for export refunds.

(see para. 33, operative part)
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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. 13A(1)(g) and (h) and (2)(b))

Summary

Article 13A(1)(g) and (h) of Sixth Directive 77/388, on the exemption from valued added tax of services linked to welfare and social security work and services linked to the protection of children and young persons, read together with Article 13A(2)(b) thereof, must be interpreted as meaning that services as an intermediary between persons seeking, and persons offering, a childcare service, provided by a body governed by public law or an organisation recognised as charitable by the Member State concerned, may benefit from exemption under those provisions only where the childcare service itself meets the conditions for exemption laid down in those provisions and it is of such a nature or quality that parents could not be assured of obtaining a service of the same value without the assistance of an intermediary, if, for example the intermediary’s screening of host parents’ past records, and the fact of providing them with training, result in the selection only of host parents who are competent and trustworthy. Furthermore, the basic purpose of those services must not be to obtain additional income for the service provider by carrying out transactions which are in direct competition with those of commercial enterprises liable for the tax. It is for the national court to determine whether those conditions are satisfied.

(see paras 23, 27-30, operative part)
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1. Community law – Principles – Proportionality – Scope

2. Community law – Principles – Proportionality – Acts of the institutions

Summary

1. The principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. Accordingly, when what is at issue is the adoption of rules designed to protect public health, the Community legislature must fully take into account, in addition to the main objective, all the interests involved and, in particular, the right to property and the welfare requirements of animals.

(see paras 35, 37)

2. The validity of a Community act in the light of the principle of proportionality cannot depend on retrospective assessment of its efficacy. Where the Community legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question. Thus, when what is at issue is the adoption of rules designed to protect public health, it must be accepted that, where there is uncertainty as to the existence or extent of risks to human health, the institutions, applying the principle of precaution and preventive action, may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. On the other hand, when new elements change the perception of a risk or show that that risk can be contained by less restrictive measures than the existing measures, it is for the institutions and in particular the Commission, which has the power of legislative initiative, to bring about an amendment to the rules in the light of the new information.

(see paras 38-40)
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Member States – Obligations – Obligation to cooperate

(Art. 10 EC)

Summary

The principle of cooperation under Article 10 EC does not require a national court to disapply its internal rules of procedure in order to review and set aside a final judicial decision if that decision should be contrary to Community law. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question.

(see para. 20, 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); EEA Agreement, Art. 31)

Summary

Article 52 of the EC Treaty (now, after amendment, Article 43 EC) and Article 31 of the Agreement on the European Economic Area must be interpreted as precluding legislation of a Member State which excludes the possibility of deducting for tax purposes financing costs incurred by a parent company subject to unlimited tax liability in that State in order to acquire holdings in a subsidiary where those costs relate to dividends which are exempt from tax because they are derived from an indirect subsidiary established in another Member State or in a State which is party to the Agreement, whereas such costs may be deducted where they relate to dividends paid by an indirect subsidiary established in the same Member State as that of the place of the registered office of the parent company and which, in reality, also benefit from a tax exemption.

(see para. 50, operative part)
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1. Actions for annulment – Natural or legal persons – Action brought by a regional authority

(Art. 230, paras 2 and 4, EC)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Art. 230, para. 4, EC; Rules of Procedure of the Court of First Instance, Art. 113)

Summary

1. An action by a local or regional entity cannot be treated in the same way as an action by a Member State, the term Member State within the meaning of the second paragraph of Article 230 EC referring only to government authorities of the Member States. That term cannot include the governments of regions or other local authorities within Member States without undermining the institutional balance provided for by the Treaty. On the basis of the fourth paragraph of Article 230 EC, however, a local or regional entity may, to the extent that it has legal personality under national law, institute proceedings against a decision addressed to it or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to it.

In that respect, a regional authority which has been designated as the authority responsible for the execution of a European Regional Development Fund project cannot be regarded as directly concerned by a Commission decision, sent to the Member State concerned and relating to financial assistance from the Fund, refusing the application made by that State for an extension of the period for the submission of applications for definitive payment in respect of that aid and definitively closing that period.

(see paras 21, 24, 30)

2. The plea of inadmissibility based on the condition laid down in the fourth paragraph of Article 230 EC that proceedings brought by a natural or legal person against a decision not addressed to it are admissible only if the decision is of direct and individual concern to it raises an absolute bar to proceeding, so that the Community judicature may raise that plea of inadmissibility at any time, even of its own motion. Consequently, on the basis of Article 113 of its Rules of Procedure, the Court of First Instance may rule that an action is inadmissible for this reason even if an objection of inadmissibility has not been raised by separate document by one of the parties before it.

(see para. 36)
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Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies

(Council Directive 69/335, Arts 4 and 7)

Summary

Article 4(2)(b) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directives 73/80, fixing common rates of capital duty, and 85/303, states that the Member States may subject to capital duty an increase in the assets of a capital company through the provision of services by a member which do not entail an increase in the company’s capital, but which may increase the value of the company’s shares.

However, Article 7(1) of that directive exonerates from capital duty certain transactions which meet three conditions, namely (i) the transfer of all the assets and liabilities of a capital company, or one or more parts of its business, to one or more capital companies which are in the process of being formed or which are already in existence, (ii) the consideration consists exclusively of the allocation of shares, and (iii) the effective centre of management or the registered office of the companies taking part in the transaction is within the territory of a Member State.

Where those conditions are met, Directive 69/335 precludes the charging of a proportional registration duty of 1% of the value of the transaction in the case of a ‘reverse’ merger, namely a merger by means of acquisition where all of the shares in the acquiring company are held by the company acquired. In so far as such a merger constitutes a contribution of capital to a capital company for the purposes of Article 4(2)(b) of that directive, Article 7(1) thereof exempts that merger from capital duty.

(see paras 32, 40-42, 46-47, operative part)
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European Communities’ own resources – Post-clearance recovery or remission of import or export duties

(Council Regulation No 2913/92, Art. 220(2)(b); Commission Regulation No 2454/93, Art. 871)

Summary

Article 871 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 1677/98, must be interpreted as meaning that, in the context of a recovery procedure or a procedure for remission of uncollected customs duties, the national customs authorities are not required to submit the case to the Commission for a decision where the doubts which they had had as regards the precise scope of the criteria laid down in Article 220(2)(b) of the Community Customs Code with regard to a particular case have dissipated, even after those authorities have expressed their intention to refer the matter to the Commission, or where the doubts relate to the subsequent entry in the accounts of customs duties which were not collected due to an omission on the part of an importer acting in good faith to declare royalties which should have been incorporated in the customs value of the imported goods.

(see para. 46, operative part)
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Convention on Jurisdiction and the Enforcement of Judgments – Exclusive jurisdiction – Proceedings which have as their object rights in rem in immovable property – Meaning

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

Summary

Article 16(1)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended most recently by the 1996 Convention, must be interpreted as meaning that an action which seeks to prevent a nuisance affecting or likely to affect land belonging to the applicant, caused by ionising radiation emanating from a nuclear power station situated on the territory of a neighbouring State to that in which the land is situated, does not fall within the scope of that provision. The exclusive jurisdiction of the courts of the Contracting State in which the property is situated does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of the Brussels Convention and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest. By contrast, if the basis of an action for cessation of a nuisance, possibly preventive in nature, is the interference with a right in rem in immovable property, such an action does not constitute a dispute having as its object rights in rem in immovable property, as the real and immovable nature of that right is, in this context, of only marginal significance. Therefore, the real and immovable nature of the right at issue does not have a decisive influence on the issues to be determined in the dispute in the main proceedings, which would not have been raised in substantially different terms if the right whose protection is sought against the alleged nuisance were of a different type, such as, for example, the right to physical integrity or a personal right.

Finally the considerations of sound administration of justice which underlie Article 16(1)(a) are not applicable in such an action and do not, therefore, preclude such an action from remaining outside the scope of that provision.

(see paras 27, 30-31, 34-35, operative part)
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1. Freedom of movement for persons – Freedom of establishment – Provisions of the Treaty – Scope

(Art. 43 EC)

2. Freedom of movement for persons – Freedom of establishment – Tax legislation

(Art. 43 EC)

3. Community law – Rights conferred on individuals – Breach by a Member State

Summary

1. A Community national who has been living in one Member State since the transfer of his residence and who holds all the shares of companies established in another Member State, may rely on Article 43 EC.

(see para. 30, operative part 1)

2. Article 43 EC must be interpreted as precluding a Member State from establishing a system for taxing increases in the value of rights in a company in the case of a taxpayer’s transferring his residence outside that Member State, which makes the granting of deferment of the payment of that tax conditional on the provision of guarantees and does not take full account of reductions in value capable of arising after the transfer of residence by the person concerned and which were not taken into account by the host Member State.

(see para. 55, operative part 2)

3. An obstacle arising from a requirement, in breach of Community law, that a guarantee be constituted cannot be raised with retroactive effect merely by releasing that guarantee. The form of the document on the basis of which the guarantee was released is immaterial to that assessment. Where a Member State makes provision for the payment of interest on arrears where a guarantee demanded in breach of national law is released, such interest is also due in the case of an infringement of Community law. Moreover, it is for the national court to assess, in accordance with the guidelines provided by the Court of Justice and in compliance with the principles of equivalence and effectiveness, whether the Member State is liable on account of the damage caused by the obligation to constitute such a guarantee.

(see para. 67, operative part 3)
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1. Approximation of laws – Telecommunications sector – Universal service and users’ rights – Directive 2002/22

(European Parliament and Council Directive 2002/22, Art. 30(2))

2. Approximation of laws – Telecommunications sector – Regulatory framework for electronic communications networks and services – Directive 2002/21

(European Parliament and Council Directive 2002/21, Art. 4)

Summary

1. Pricing for interconnection related to the provision of number portability, as referred to in Article 30(2) of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services, concerns the traffic costs of numbers ported and the set-up costs incurred by mobile telephone operators to implement requests for number porting.

Article 30(2) of Directive 2002/22 does not preclude the adoption of a national measure laying down the specific method to be used in calculating costs and which fixes in advance and on the basis of an abstract model of the costs maximum prices which may be charged by the donor operator to the recipient operator as set-up costs, provided that the prices are fixed on the basis of the costs in such a way that consumers are not dissuaded from making use of the facility of portability.

(see paras 30, 37, operative part 1-2)

2. Article 4 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services must be interpreted as meaning that the body responsible for hearing an appeal against a decision of the national regulatory authority must have at its disposal all the information necessary in order to decide on the merits of the appeal, including, if necessary, confidential information which that authority has taken into account in reaching the decision which is the subject of the appeal. However, that body must guarantee the confidentiality of the information in question whilst complying with the requirements of effective legal protection and ensuring protection of the rights of defence of the parties to the dispute.

(see para. 43, operative part 3)
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Social policy – ETUC, UNICE and CEEP framework agreement on fixed-term work – Directive 1999/70

(Council Directive 1999/70, Annex, clause 1(b) and 5)

Summary

The framework agreement on fixed-term work, which is annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not in principle precluding national legislation which, where there is abuse arising from the use of successive fixed-term employment contracts or relationships by a public-sector employer, precludes their being converted into contracts of indeterminate duration, even though such conversion is provided for in respect of employment contracts and relationships with a private-sector employer, where that legislation includes another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts by a public-sector employer.

(see para. 57, operative part)