ddrg/super_eurlex huggingface dataset:
Case C-66/03





Commission of the European Communities

v

French Republic





«(Failure of a Member State to fulfil obligations – Failure to implement – Directive 2000/39/EC)»

Judgment of the Court (Third Chamber), 27 November 2003

Summary of the Judgment

1.. 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)
Keywords

Subject of the case

Operative part



Keywords

Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital (Council Directive 69/335, Arts 10 and 12(1)(e)) (see paras 35-39 and operative part)

2. Community law – Direct effect – National charges incompatible with Community law – Repayment (see paras 43-46 and operative part)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Infringement of Art. 10(c) of Council Directive 68/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition (1969)(II), p. 412) – National law retroactively imposing an annual flat-rate charge on the registration of documents other than companies’ instruments of incorporation and laying down a discriminatory and restrictive regime for recovery of the annual charge on registration of instruments of incorporation.

Operative part

Operative part

The Court:

1. Declares that, by introducing retroactive charges which do not constitute duties paid by way of permitted fees or dues where the registrations in the register of companies for which they are charged have already given rise to charges for which the retroactive charges are intended to be a substitute but which are not reimbursed to those who have paid them, or where those retroactive charges relate to years in which no registration in the register was made justifying their being levied, and by adopting provisions making repayment of a tax held to be contrary to Community law by a judgment of the Court, or whose incompatibility with Community law is apparent from such a judgment, subject to conditions relating specifically to that tax which are less favourable than those which would otherwise be applied to repayment of the tax in question, the Italian Republic has failed to fulfil its obligations under Articles 10 and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital and under the principles identified by the Court in relation to recovery of undue payment.

2. Dismisses the action as to the remainder.

3. Orders the Italian Republic to bear three quarters of the total costs and the Commission of the European Communities to bear the other quarter.
Case C-269/03

Administration de l’enregistrement et des domaines

and

État du grand-duché de Luxembourg

v

Vermietungsgesellschaft Objekt Kirchberg SARL

(Reference for a preliminary ruling from the Cour d’appel (Luxembourg))

(Sixth VAT Directive – Article 13(C) – Exemption of transactions of leasing or letting of immovable property – Right of option for taxation – Deduction of input tax – Obtaining prior approval of the tax authorities)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions laid down by the Sixth Directive – Exemption of transactions of leasing or letting of immovable property – Taxpayers’ right of option – Right to deduct conditional on obtaining prior approval – Whether permissible

(Council Directive 77/388, Art. 13(C))

The provisions of subparagraph (a) of the first paragraph and of the second paragraph of Article 13(C) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes do not preclude a Member State, which has exercised the power conferred by those provisions to allow taxpayers a right of option for taxation on leasing or letting transactions of immovable property, from adopting legislation which makes full deduction of the input VAT paid conditional upon non-retroactive, prior approval of the tax authorities.

(see para. 30, operative part)
Case C-333/03

Commission of the European Communities

v

Grand Duchy of Luxembourg

(Failure of a Member State to fulfil obligations – Failure to transpose Directive 98/50/EC – Transfer of undertakings – Safeguarding of employees’ rights)

Summary of the Judgment

Actions for failure to fulfil obligations – Examination of the 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)
Case C-60/03

Wolff & Müller GmbH & Co. KG

v

José Filipe Pereira Félix

(Reference for a preliminary ruling from the Bundesarbeitsgericht)

(Article 49 EC – Restrictions on freedom to provide services – Undertakings in the construction sector – Subcontracting – Obligation on an undertaking to act as guarantor in respect of the minimum remuneration of workers employed by a subcontractor)

Summary of the Judgment

Freedom to provide services – Posting of workers in the framework of the provision of services – Directive 96/71 – National rules providing that an undertaking using the services of another undertaking established in another Member State is to act as a guarantor in respect of the minimum remuneration of workers employed by the other undertaking – Restriction on freedom to provide services – Whether justified on grounds of public interest – Social protection of workers

(Art. 49 EC; European Parliament and Council Directive 96/71, Art. 5)

Article 5 of Directive 96/71 concerning the posting of workers in the framework of the provision of services, under which the Member States are to take appropriate measures in the event of non-compliance with the terms of that directive and, in particular, are to ensure that the workers and/or their representatives have available to them adequate procedures for the enforcement of obligations under that directive, interpreted in the light of Article 49 EC, does not in principle preclude a national system whereby, when subcontracting the conduct of building work to an undertaking established in another Member State, a building contractor established in the Member State concerned becomes liable, in the same way as a guarantor who has waived the defence of prior recourse, for the obligation on that undertaking or that undertaking’s subcontractors to pay the minimum wage to a worker employed by the latter or to pay contributions to a joint scheme for parties to a collective agreement where the minimum wage means the sum payable to the worker after deduction of tax, social security contributions, payments towards the promotion of employment or other such social insurance payments (net pay), even if the safeguarding of workers’ pay is not the primary objective of the national legislation concerned or is merely a subsidiary objective.

If entitlement to minimum rates of pay constitutes a feature of worker protection, which is one of the overriding reasons relating to the public interest which may justify a restriction on freedom to provide services, procedural arrangements ensuring observance of that right, such as the liability of the guarantor, must likewise be regarded as being such as to ensure that protection, since that provision benefits posted workers on the ground that, to the advantage of the latter, it adds to the primary obligant in respect of the minimum rate of pay, namely the employer, a further obligant who is jointly liable with the first debtor and is generally more solvent.

(see paras 28, 34-35, 37, 40, 45, operative part)
Case C-300/03

Honeywell Aerospace GmbH

v

Hauptzollamt Gießen

(Reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel)

(Community transit – Incurring of a customs debt in the event of offences or irregularities – Consequence of the lack of indication to the principal of the time-limit for furnishing proof of the place where the offence or irregularity occurred)

Judgment of the Court (Fourth Chamber), 20 January 2005

Summary of the Judgment

Free movement of goods – Community transit – External Community transit – Offences or irregularities – Failure to notify the principal of the time-limit for furnishing proof of the regularity of the operation or of the place where the offence occurred – Effect on incurring of a customs debt – Lack – Effect on the recovery of the customs debt

(Council Regulation No 2913/92, Art. 203(1); Commission Regulation No 2454/93, Art. 379)

Article 203(1) of Regulation No 2913/92 establishing the Community Customs Code, in conjunction with Article 379 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, must be interpreted as meaning that a customs debt has been incurred where a consignment placed under the external Community transit procedure has not been presented at the customs office of destination and the failure to notify to the principal the period in which the proof of the regularity of the transit operation or of the place where the offence was actually committed may be furnished to the office of departure does not prevent the customs debt being incurred. That notification nevertheless constitutes a prerequisite for the recovery of the customs debt by the customs authorities, so that the Member State to which the office of departure belongs may take steps to recover the debt only if it has indicated to the principal that he has three months in which to furnish the proof requested and such proof has not been provided within that period.

(see paras 23, 26, operative part)
Case C-272/03

Hauptzollamt Neubrandenburg

v

Jens Christian Siig

(Reference for a preliminary ruling from the Bundesfinanzhof)

(Community Customs Code – Incurral of a customs debt – Temporary importation procedure – Change of the tractor of a semi-trailer)

Summary of the Judgment

Customs union – Temporary importation procedure with relief from duties – Temporary importation of road vehicles for commercial use – Change in the customs territory of the Community of the tractor of a trailer during the carriage of goods which ended outside the territory – Refusal to admit under the temporary importation procedure

(Commission Regulation No 2454/93, Arts 670(p), and 718(3)(d))

Articles 718(3)(d) and 670(p) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, the latter of which defines the concept of ‘internal traffic’ for the purposes of temporary importation with relief from import duties and the former of which lays down a condition to which admission under the temporary importation procedure for road vehicles for commercial use is subject, are to be interpreted as meaning that they prohibit the use of a road tractor registered outside the customs territory of the Community to transport a semi-trailer from a place within the customs territory of the Community, where the semi-trailer is loaded with goods, to another place within the customs territory of the Community where the semi‑trailer is merely parked with a view to being transported subsequently by another road tractor to the consignee of the goods, who is established outside the customs territory of the Community.

The application of the temporary importation procedure directly depends on the carrying out by the vehicle concerned of a clearly defined transport operation, namely carriage which includes a crossing of the external border of the customs territory of the Community by that vehicle and the goods or persons transported, and accordingly it is the transport operation itself, carried out by the means of transport concerned, which is decisive and not the final destination of the goods or persons transported.

(see paras 18, 20, 26, operative part)
Case C-469/03

Criminal proceedings

against

Filomeno Mario Miraglia

(Reference for a preliminary ruling from the Tribunale di Bologna)

(Article 54 of the Convention implementing the Schengen Agreement – Principle ne bis in idem – Scope – Decision of a Member State’s judicial authorities to discontinue prosecution by reason solely of the initiation of similar proceedings in another Member State)

Judgment of the Court (Fifth Chamber), 10 March 2005 ………...

Summary of the Judgment

European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Scope – Decision of the judicial authorities of one Member State closing a case on the ground that similar proceedings have been started in another Member State without any determination whatsoever as to the merits of the case – Excluded

(Art. 2, fourth indent, first subpara, EU; Convention implementing the Schengen Agreement, Art. 54)

The principle ne bis in idem, enshrined in Article 54 of the Convention implementing the Schengen Agreement, the purpose of which is to ensure that no one is prosecuted on the same facts in several Member States on account of his having exercised his right to freedom of movement, does not fall to be applied to a decision of the judicial authorities of one Member State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case. Such a decision cannot in fact constitute a decision finally disposing of the case against that person within the meaning of Article 54.

The consequence of applying that principle to such a decision to close criminal proceedings would be to make it more difficult, indeed impossible, actually to penalise in the Member States concerned the unlawful conduct with which the defendant is charged. Such a consequence would clearly run counter to the very purpose of the provisions of Title VI of the Treaty on European Union, as set out in the fourth indent of the first subparagraph of Article 2 EU.

(see paras 30, 33-35, operative part)
Keywords

Summary



Keywords

Freedom to provide services – Restrictions – Tax legislation – Corporation tax – National legislation restricting the benefit of a tax credit for research to research carried out in that Member State – Not permissible – Justification – None

(Art. 49 EC)

Summary

Article 49 EC precludes legislation of a Member State which restricts the benefit of a tax credit for research only to research carried out in that Member State.

Such legislation is, albeit indirectly, based upon the place of establishment of the provider of services and is consequently liable to restrict its cross-border activities. It cannot be justified by the need to safeguard the coherence of the tax system, to promote research or to ensure effective fiscal supervision.

(see paras 18, 20, 23-24, 26, operative part)
Keywords

Summary



Keywords

Agriculture — Common agricultural policy — Method of organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs — Regulation No 2092/91 — Indications referring to that method of production — Use of such indications and their derivatives for products not produced by such a method of production — Use of the terms ‘biológico’ and ‘bio’ in Spain — Whether permissible in the version amended by Regulation No 1804/1999 — Not permissible in the version amended by Regulation No 392/2004

(Council Regulation No 2092/91, Art. 2, as amended by Council Regulations Nos 1804/1999 and 392/2004, Art. 2)

Summary

Article 2 of Regulation No 2092/91 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs, as amended to include livestock production by Regulation No 1804/1999, is to be interpreted as not precluding products which were not organically produced from bearing, in Spain, the indication ‘biológico’ or its prefix ‘bio’ in the labelling, advertising material and commercial documents.

That same Article 2, as amended by Regulation No 392/2004, must be interpreted as precluding from now on such products from bearing, in Spain, the indication ‘biológico’ or its prefix ‘bio’ in the labelling, advertising material and commercial documents. That article states that the terms set out in it in the various language versions are not exclusive for the Member States but have indicative status which also covers translations in other official languages of the Community.

(see paras 19, 22, operative part 1-2)
Keywords

Summary



Keywords

Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Withdrawal of an invitation to tender – Member States under an obligation to provide for review procedures — Absence of such a procedure in national law — Not permissible — Direct effect of Articles 1(1) and 2(1)(b) of the directive — Obligations of the national courts

(Council Directive 89/665, Arts 1(1) and 2(1)(b))

Summary

Articles 1(1) and 2(1)(b) of Directive 89/665 relating to 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 require the decision of the contracting authority to withdraw the invitation to tender for a public procurement contract to be open to a review procedure, and to be capable of being set aside where appropriate on the ground that it has infringed Community law on public procurement or national rules implementing that law.

Consequently, where national law, even when it is interpreted in accordance with the requirements of Community law, does not make it possible for a tenderer to challenge a decision to withdraw an invitation to tender inasmuch as that decision infringes Community law and on that ground to apply for it to be set aside, that national law does not fulfil the requirements of Articles 1(1) and 2(1)(b) of Directive 89/665.

In those circumstances, the court or tribunal having jurisdiction is required to disapply national rules which prevent compliance with the obligation arising from those provisions.

Those provisions are unconditional and sufficiently clear to create rights for individuals on which they may rely, where necessary, against contracting authorities.

(see paras 30-31, 38-39, operative part)
Keywords

Summary



Keywords

1. Approximation of laws – Consumer protection in the case of contracts negotiated away from business premises – Directive 85/577 – Conditions under which applicable – Contract concluded in a doorstep-selling situation – Intervention by a third party in the name of or on behalf of a trader – Awareness of trader that contract was concluded in that situation – Additional condition – Not permissible

(Council Directive 85/577, Arts 1 and 2)

2. Approximation of laws – Consumer protection in the case of contracts negotiated away from business premises – Directive 85/577 – Loan agreement serving to finance the purchase of immovable property – Cancellation – Effects – Obligation to repay immediately with interest – Whether permissible

(Council Directive 85/577, Arts 4 and 5(2))

Summary

1. Articles 1 and 2 of Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises must be interpreted as meaning that, when a third party intervenes in the name of or on behalf of a trader in the negotiation or conclusion of a contract, the application of the Directive cannot be made subject to the condition that the trader was or should have been aware that the contract was concluded in a doorstep-selling situation as referred to in Article 1 of the Directive. There is no basis in the wording of the Directive for inferring the existence of such an additional condition and to accept such an additional condition is contrary to the objective of the Directive which is to protect the consumer from the element of surprise inherent in doorstep selling.

(see paras 42-43, 45, operative part 1)

2. Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises does not preclude, in the case of a loan agreement serving to finance the purchase of immovable property:

- a requirement that a consumer who has exercised his right to cancel under the Directive must pay back the loan proceeds to the lender, even though according to the scheme drawn up for the investment the loan serves solely to finance the purchase of the immovable property and is paid directly to the vendor thereof;

- a requirement that the amount of the loan must be paid back immediately;

- national legislation which provides for an obligation on the consumer, in the event of cancellation of a secured credit agreement, not only to repay the amounts received under the agreement but also to pay to the lender interest at the market rate. However, in a situation where, if the bank had complied with its obligation to inform the consumer of his right of cancellation, the consumer would have been able to avoid exposure to the risks inherent in investments, Article 4 of the Directive requires Member States to ensure that their legislation protects consumers who have been unable to avoid exposure to such risks, by adopting suitable measures to allow them to avoid bearing the consequences of the materialisation of those risks.

(see para. 49, operative part 2)
Keywords

Summary



Keywords

Customs Union — Customs debt on import following removal from customs supervision of goods liable to import duty — Concept of debtor — Person required to fulfil the obligations arising from the temporary storage of the goods — Person who holds the goods after they have been unloaded

(Council Regulation No 2913/92, Art. 203(3))

Summary

The fourth indent of Article 203(3) of Regulation No 2913/92 establishing the Community Customs Code which refers, among the categories of persons responsible for the customs debt incurred through unlawful removal from customs supervision of goods liable to import duties, to ‘the person required to fulfil the obligations arising from temporary storage of the goods’ must be interpreted as meaning that those words designate the person who holds the goods after they have been unloaded in order to move or store them.

(see para. 41, operative part)