ddrg/super_eurlex huggingface dataset:
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Own resources of the European Communities – Post-clearance recovery of import or export duties

(Council Regulation No 2913/92, Art. 217)

Summary

Article 217 of the Community Customs Code is to be interpreted as meaning that Member States can provide that the entry in the accounts of the amount of duty resulting from a customs debt may be effected by the entry of that amount on a record which is drawn up by the competent customs authorities and establishes an infringement of the applicable customs legislation. It is for the Member States to determine the practical procedures for that entry in the accounts, which may differ according to whether or not, in view of the circumstances in which the customs debt was incurred, the customs authorities are satisfied that the amount of duty resulting from that debt will be paid. Such discretion for Member States exists, in particular, where the procedure for recovery of the amount of duty relates to a customs debt resulting from a finding by the competent national authorities of fraud committed against the applicable tax legislation and where the outcome of such a procedure is, by its nature, uncertain, with the result that those authorities cannot be satisfied that that amount will be paid.

(see paras 23-26, operative part)
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Subject of the case

Operative part



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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) (see para. 5

)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to adopt or communicate, within the prescribed period, all the provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

Operative part

Operative part

The Court:

1. Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, the French Republic has failed to fulfil its obligations under Article 63 of that directive;

2. Orders the French Republic to pay the costs.
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1. Approximation of laws – Procedures for the award of contracts in the public works, public supply and public service sectors – Directive 2004/18

(European Parliament and Council Directive 2004/18)

2. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Negotiated procedures with publication of a contract notice

(Council Directive 93/37, Art. 22(3))

3. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Negotiated procedures with publication of a contract notice

(Council Directive 93/37, Arts 7(2) and 22(2), second para., and third para.)

Summary

1. Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts is not applicable to a decision taken by a contracting authority when awarding a public works contract before the period for transposition of that directive has expired.

In that regard, in relation to a procedure for the award of a contract which was still in progress at the date on which the period for transposition expired, it would be contrary to the principle of legal certainty to determine the law applicable by reference to the date of the award of the contract, when the decision which is alleged to have infringed Community law was taken before that date.

(see paras 29-30, operative part 1)

2. Article 22(3) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, must be interpreted as meaning that, when a contract is awarded by a negotiated procedure and the number of suitable candidates is below the lower limit prescribed for the procedure in question, the contracting authority may, nevertheless, continue with the procedure by inviting the suitable candidate or candidates to negotiate the terms of that contract.

(see para. 44, operative part 2)

3. Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, must be interpreted as meaning that the obligation to ensure that there is genuine competition is satisfied if the contracting authority has recourse to the negotiated procedure on the conditions referred to in Article 7(2) of that directive.

As regards the stage of negotiating for the contract, Article 22(3) of Directive 93/37 requires the contracting authority to invite a sufficient number of candidates to take part in that stage. Whether the number is sufficient to ensure genuine competition must be assessed on the basis of the characteristics and the nature of the contract in question.

If, in such a procedure, the number of suitable candidates is below the lower limit prescribed for the procedure in question which, in accordance with Directive 93/37, cannot be less than three, it must be accepted that, in so far as the conditions of an economic and technical nature for that procedure have been correctly prescribed and applied, the contracting authority has, nevertheless, ensured that there is genuine competition.

(see paras 52-54, operative part 3)
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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, Art. 5(3), second indent)

Summary

In accordance with the second indent of Article 5(3) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, in determining the amount of capital duty chargeable on an increase in a company’s capital arising from the conversion into shares – following the accession of a Member State to the European Union on 1 May 2004 – of loans taken up by that company before that accession, account must be taken of the previous taxation of those loans on the basis of the national law in force at the material time.

The introduction into the law of a Member State of such a rule prohibiting the same amounts from being taxed again following their transfer into capital cannot be considered to cast doubt on taxation which had already occurred, and thereby to have retroactive effect. That rule has, as its sole objective and scope, the prevention of double taxation of the same taxable amount and the rule applies, from its entry into force, both to loans already assumed before the Member State’s accession to the European Union – and so before the entry into force of that rule within the legal order of that Member State – and converted into shares subsequent to that accession, and to loans agreed after that accession.

The second indent of Article 5(3) of Directive 69/335 is, therefore, merely a new rule which applies immediately to transactions carried out after its entry into force in a Member State and coming within it scope without retroactive application of that directive to facts occurring before that Member State’s accession.

(see paras 36-38, 40, 42, operative part)
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Subject of the case

Operative part



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Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission (Art. 226 EC) (see paras 15, 19)

2. Acts of the institutions – Directives – Implementation by Member States (Art. 249, third para., EC) (see paras 21, 23)

3. 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) (see paras 25, 27)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to adopt within the prescribed period all the measures necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (OJ 2005 L 323, p. 1).

Operative part

Operative part

The Court:

1. Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC, and by failing to communicate to the Commission of the European Communities the text of the national provisions adopted in the field covered by that directive, the Republic of Poland has failed to fulfil its obligations under that directive, in particular Article 64;

2. Orders the Republic of Poland to pay the costs.
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Subject of the case

Operative part



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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) (see para. 10)

2. Member States – Obligations – Implementation of directives – Failure to fulfil obligations – Justification – Not permissible (Art. 226 EC) (see para. 12)

Subject of the case

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the specified time‑limit, the necessary provisions to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

Operative part

Operative part

The Court:

1. Declares that, by failing to adopt and communicate to the European Commission all the laws, regulations or administrative provisions necessary to transpose Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, the Federal Republic of Germany has failed to fulfil its obligations under that Directive;

2. Orders the Federal Republic of Germany to pay the costs.
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International agreements – EEC-Turkey Association Agreement – Association Council set up by the EEC-Turkey Association Agreement – Decision No 1/80 – Access to employment of children of Turkish workers – Members of the family of a Turkish worker who has been duly registered as belonging to the labour force of a Member State

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 7(2))

Summary

The second paragraph of Article 7 of Decision No 1/80 of the EEC‑Turkey Association Council must be interpreted as meaning that, in the case where a Turkish worker has previously been legally employed in the host Member State for more than three years, the child of such a worker may rely in that Member State, after completing his or her vocational training course there, on the right of access to the employment market and the corresponding right of residence, even though, after travelling back with his or her parents to their State of origin, he or she returned on his or her own to that Member State in order to start a training course there.

That provision, which is not designed to create conditions conducive to family unity in the host Member State, but to promote access of children of Turkish workers to the employment market, does not make the rights which it confers on those children subject to the condition that one of their parents must still have the status of worker or continue to reside in the host Member State when the child starts his or her vocational training there. Provided that the conditions laid down in the second paragraph of Article 7 of Decision No 1/80 are satisfied, namely that the child in question must have completed a course of vocational training in the Member State concerned and one of his or her parents must have been legally employed there for at least three years, that provision confers on the child an autonomous right of access to the employment market of the host Member State and, as a corollary, a right to reside there.

It is, admittedly, true that the right of free access of the child of a Turkish worker to the employment market is founded on the past employment of the Turkish worker in the host Member State. None the less, the condition that one of the parents must have worked in that State for at least three years cannot be construed as requiring that, when the child starts his or her vocational training, that parent must still have the status of worker. The sole purpose of that condition is to establish, in parallel with the child’s vocational training, the level of the child’s integration in the host Member State which is sufficient to enable him or her to benefit from the special treatment provided for in that provision.

Such an interpretation does not have the effect of placing a child of a Turkish worker in a more favourable situation than that of a child of a national of a Member State.

(see paras 18, 27-31, 44-45, operative part)
Article 12(3) of Directive 76/308 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures, as amended by Directive 2001/44, must be interpreted as meaning that the courts of the Member States where the requested authority is situated do not, in principle, have jurisdiction to review the enforceability of an instrument permitting enforcement. Conversely, where a court of that Member State hears a claim against the validity or correctness of the enforcement measures, such as the notification of the instrument permitting enforcement, that court has the power to review whether those measures were correctly effected in accordance with the laws and regulations of that Member State.

Although it falls, in principle, within the exclusive jurisdiction of the bodies of the Member State in which the applicant authority is situated to hear any disputes concerning the validity of the claim or the instrument permitting enforcement, it cannot be ruled out that, exceptionally, the bodies of the Member State in which the requested authority is situated will be authorised to review whether the enforcement of the instrument is liable, in particular, to be contrary to the public policy of that last mentioned State and, where appropriate, to refuse to grant assistance in whole or in part or to make it subject to fulfilling certain conditions.

(see paras 42, 50, operative part 1)
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Tax provisions – Harmonisation of laws – Taxes other than turnover taxes which affect the consumption of manufactured tobacco

(Council Directive 95/59, as amended by Directive 2002/10, Art. 9(1))

Summary

A Member State fails to fulfil its obligations under Article 9(1) of Directive 95/59 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, as amended by Directive 2002/10, where it adopts and maintains in force legislation by which the public authorities fix minimum prices for the retail sale of cigarettes and fine-cut tobacco for the rolling of cigarettes, and where that system does not make it possible to ensure, in any event, that the minimum prices imposed do not impair the competitive advantage which could result for some producers and importers of tobacco products from lower cost prices. Such a system, which furthermore fixes the minimum price by reference to the average price on the market, is likely to eliminate price differences between competing products and to cause prices to converge around the price of the most expensive product. That system therefore undermines the freedom of producers and importers to determine their maximum retail selling price, guaranteed by the second paragraph of Article 9(1) of Directive 95/59.

The World Health Organisation Framework Convention on Tobacco Control cannot affect the compatibility or otherwise of such a system with Article 9(1) of Directive 95/59 since that convention imposes no actual obligation on the Contracting Parties with regard to price policies for tobacco products, and merely describes possible approaches by which to take account of national health objectives concerning tobacco control. Article 6(2) of the convention provides only that the Contracting Parties are to adopt or maintain measures which ‘may include’ implementing tax policies and, ‘where appropriate’, price policies, concerning tobacco products.

Member States may not rely on Article 30 EC in order to justify an infringement of Article 9(1) of Directive 95/59 with reference to the objective of protection of health and life of humans. Article 30 EC cannot be understood as authorising measures other than the quantitative restrictions on imports and exports and the measures having equivalent effect envisaged by Articles 28 EC and 29 EC.

The fact remains that Directive 95/59 does not preclude Member States from taking measures to combat smoking, which forms part of the objective of protecting public health.

(see paras 33-34, 38-39, 45 and operative part)
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1. Origin of goods – Determination – Substantial processing or working – Meaning

(Council Regulation No 2913/92, Art. 24)

2. Common commercial policy – Protection against dumping – Validity of Regulation No 398/2004 – Expiry review procedure – Distinction as against initial investigation

(Council Regulation No 384/96, Arts 5 and 11(2))

3. Common commercial policy – Protection against dumping – Validity of Regulation No 398/2004 – Expiry review procedure under Article 11(2) of Regulation No 384/96 – Whether possible to maintain or repeal the anti-dumping measure – Prohibition of amending the measure

(Council Regulation No 384/96, Art. 11(2) and (6))

Summary

1. The separation, crushing and purification of silicon metal blocks and the subsequent sieving, sorting and packaging of the silicon grains resulting from the crushing do not constitute origin-conferring processing or working for the purposes of Article 24 of Regulation No 2913/92 establishing the Community Customs Code, since they do not alter the properties or composition of the product.

(see para. 55, operative part 1)

2. There is an objective difference between the initial investigation to determine the existence of dumping and the review of an anti-dumping measure about to expire. Whereas imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury, on the other hand, where imports are subject to an initial investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping.

(see paras 65-66)

3. For the purposes of a review of anti-dumping measures which are about to expire, carried out under Article 11(2) of Regulation No 384/96 on protection against dumped imports from countries not members of the European Community, as amended by Regulation No 461/2004, the Community authorities may only either maintain those measures if their expiry would be likely to lead to a continuation or recurrence of dumping and injury, or, if not, repeal them. By contrast, a review under that provision of measures about to expire cannot lead to their amendment. It follows that since the Community authorities concluded, as a result of that review, that the expiry of the anti-dumping measures would probably lead to the recurrence of injury, Regulation No 398/2004 imposing a definitive anti-dumping duty on imports of silicon originating in the People’s Republic of China is valid in that it maintains the rate of anti-dumping duty.

(see paras 76-78)
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1. Environment – Prevention and remedying of environmental damage – Environmental liability – Directive 2004/35 – Remedial measures

(European Parliament and Council Directive 2004/35, Arts 7 and 11(4) and Annex II, Section 1.3.1)

2. Environment – Prevention and remedying of environmental damage – Environmental liability – Directive 2004/35 – Remedial measures

(European Parliament and Council Directive 2004/35)

Summary

1. Articles 7 and 11(4) of Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage, in conjunction with Annex II to the directive, must be interpreted as permitting the competent authority to alter substantially measures for remedying environmental damage which were chosen at the conclusion of a procedure carried out on a consultative basis with the operators concerned and which have already been implemented or begun to be put into effect. However, in order to adopt such a decision, that authority:

- is required to give the operators on whom such measures are imposed the opportunity to be heard, except where the urgency of the environmental situation requires immediate action on the part of the competent authority;

- is also required to invite, inter alia, the persons on whose land those measures are to be carried out to submit their observations and to take them into account; and

- must take account of the criteria set out in Section 1.3.1. of Annex II to Directive 2004/35 and state in its decision the grounds on which its choice is based, and, where appropriate, the grounds which justify the fact that there was no need for a detailed examination in the light of those criteria or that it was not possible to carry out such an examination due, for example, to the urgency of the environmental situation.

(see para. 67, operative part 1)

2. Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage does not preclude national legislation which permits the competent authority to make the exercise by operators at whom environmental recovery measures are directed of the right to use their land subject to the condition that they carry out the works required by the authority, even though that land is not affected by those measures because it has already been decontaminated or has never been polluted. However, such a measure must be justified by the objective of preventing a deterioration of the environmental situation in the area in which those measures are implemented or, pursuant to the precautionary principle, by the objective of preventing the occurrence or resurgence of further environmental damage on the land belonging to the operators which is adjacent to the whole shoreline at which those remedial measures are directed.

(see para. 92, operative part 2)