ddrg/super_eurlex huggingface dataset:
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Limitations on the right to deduct – National legislation limiting the deductibility of tax on the purchase of capital goods financed by subsidies – Not permissible

(Council Directive 77/388, Arts 17 and 19)

Summary

A Member State which introduces a special rule limiting the deductibility of value added tax on the purchase of capital goods where they were financed by subsidies fails to fulfil its obligations under Community law, and, in particular, under Articles 17 and 19 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.

(see para. 37, operative part)
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Actions for annulment – Actionable measures – Acts intended to produce legal effects – Measures relating to the date of eligibility of new expenditure when programming documents for Community structural assistance are amended – Not included

(Art. 230 EC)

Summary

An action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. That is not the case with regard to a document issued by the Commission in connection with assistance provided under the Structural Funds relating to the date of eligibility of new expenditure when programming documents are amended, which uses the words ‘it is proposed to introduce the following rules’, since a proposal is a clear and specific indication that the document is not intended to have legal effects. Moreover, before that document was distributed to the Member States, the Commission gave an express warning that such a document was internal, was not always the final version, and merely reflected the Commission’s opinion.

The same applies to the three Commission notes on this matter sent to the national authorities. First, those notes merely refer to that document, which is not itself intended to have legal effects. Second, those notes were sent by the Commission in the course of the written consultation procedure for the amendment of the programme complements, initiated by the Monitoring Committees concerned. It is clear from Articles 15(6), 34(3) and 35 of Regulation No 1260/1999 laying down general provisions on the Structural Funds, read together, that, in such a procedure, the Commission has a mere consultative role and is not empowered to adopt any legally binding act, except where any amendments relate to the elements contained in the decision on the contribution of the Structural Funds within the meaning of Article 34(3) of that regulation, which is not, however, alleged in the present case.

(see paras 19, 21-28)
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Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 1432/92

(Council Regulation No 1432/92, Art. 1(d))

Summary

Article 1(d) of Regulation No 1432/92 prohibiting trade between the European Economic Community and the Republics of Serbia and Montenegro must be interpreted as meaning that the commercial carriage of persons to or from Serbia and Montenegro in the form of split transport was prohibited.

‘Split transport’ is to be understood as meaning the carriage of persons to or from the territory covered by the embargo, organised by means of a joint operation between an undertaking established in a Member State and an undertaking established in the territory covered by the embargo whereby the former provides carriage to or from the area bordering the territory covered by the embargo and the latter provides carriage from that point into the territory covered by the embargo or from inside that territory to that point (with passengers changing vehicles).

(see para. 36, operative part)
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Approximation of laws – Article 95 EC – Scope

(Arts 93 EC, 94 EC and 95 EC; Council Regulation No 1798/2003; Council Directive 2003/93)

Summary

The words ‘fiscal provisions’ in Article 95(2) EC cover not only all areas of taxation, without drawing any distinction between the types of duties or taxes concerned, but also all aspects of taxation, whether material rules or procedural rules.

The aim and content of Regulation No 1798/2003 on administrative cooperation in the field of value added tax repealing Regulation No 218/92 and adopted on the basis of Article 93 EC, and Directive 2003/93 amending Council Directive 77/799/EEC concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation, adopted on the basis of Articles 93 EC and 94 EC, is the approximation of procedural provisions in tax matters.

Article 95(1) EC does not therefore constitute the correct legal basis for the adoption of Regulation No 1798/2003 and Directive 2003/93.

(see paras 47, 59-60, 62-64)
Case C-89/03

Commission of the European Communities

v

Grand Duchy of Luxembourg

(Failure of a Member State to fulfil obligations ? Failure to transpose Directive 93/15/EEC)

«Compétence judiciaire, reconnaissance et exécution des décisions en matière civile et commerciale — Règlement (CE) nº 44/2001 — Reconnaissance et exécution — Article 34, point 2 — Décision rendue par défaut — Motif de refus — Notion de défendeur défaillant 'en mesure' d'exercer un recours contre la décision — Défaut de signification et de notification de celle-ci.»

Judgment of the Court (First Chamber), 2 October 2003

Summary of the Judgment

Member States ? Obligations ? Implementation of directives ? Failure to fulfil obligations ? National system pleaded as justification ? Not permissible

(Art. 226 EC)

disp.)
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1. Actions for failure to fulfil obligations – Failure to comply with a Commission decision on State aid

(Art. 88(2), second subpara., EC)

2. Actions for failure to fulfil obligations – Failure to observe the requirement to recover aid granted – Defences

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(3))

Summary

1. Because the second subparagraph of Article 88(2) EC, on the procedure for actions for failure to fulfil obligations in the field of State aid, does not provide for a pre-litigation phase, in contrast to Article 226 EC, and therefore the Commission does not issue a reasoned opinion allowing Member States a certain period within which to comply with its decision, when the former provision is applied the reference period can only be that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission.

(see para. 53)

2. When negative decisions are taken in cases of unlawful aid, the recovery thereof ordered by the Commission takes place under the conditions set out in Article 14(3) of Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article [88 EC].

The only defence available to a Member State in opposing an application by the Commission under Article 88(2) EC for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it properly to implement the decision ordering recovery.

In that respect, the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Government merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision enabling those difficulties to be overcome.

(see paras 71-72, 74)
Case C-72/03

Carbonati Apuani Srl

v

Comune di Carrara

(Reference for a preliminary ruling from the Commissione tributaria provinciale di Massa Carrara)

(Charges having effect equivalent to a customs duty – Tax levied on marble excavated in the territory of a municipality on its being transported across the boundaries of the municipal territory)

Summary of the Judgment

Free movement of goods – Customs duty – Charges having equivalent effect – Definition –Tax levied in a municipality of a Member State and imposed on a class of goods on account of their being transported beyond the boundaries of the municipal territory – Included

(Art. 23 EC)

A tax proportionate to the weight of goods, levied in one municipality of a Member State only and imposed on one class of goods when those goods are transported beyond the territorial boundaries of that municipality, constitutes a charge having effect equivalent to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it is imposed also on goods the final destination of which is within the Member State concerned.

First, the very principle of the customs union, as provided for by Article 23 EC, requires the free movement of goods to be ensured within the union generally, not in trade between Member States alone, but more broadly throughout the territory of the customs union, and the absence of charges – whether between States or within a State – exhibiting the features of a customs duty or of a charge having equivalent effect is a precondition essential to the realisation of such a customs union. Second, given that the tax at issue is imposed on all goods in the category in question that cross the territorial boundaries of the municipality where they are produced, no distinction being made between goods the final destination of which is in the Member State of production and goods destined for other Member States, it impinges by its nature and terms on trade between Member States.

(see paras 22, 24, 26, 35, operative part 1)
Case C-65/03

Commission of the European Communities

v

Kingdom of Belgium

(Failure of a Member State to fulfil obligations – Articles 12 EC, 149 EC and 150 EC – Secondary education diploma awarded in another Member State – Access to higher education)

Summary of the Judgment

Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Access to higher education – Different conditions for holders of secondary education diplomas awarded in other Member States – Not permissible

(Arts 12 EC, 149 EC and 150 EC)

A Member State which fails to take the measures necessary to ensure that holders of secondary education diplomas awarded in other Member States can gain access to higher education under the same conditions as holders of the Certificate of higher secondary education (CESS) awarded in the Member State concerned has failed to fulfil its obligations under Article 12 EC, read in conjunction with Articles 149 EC and 150 EC.

(see para. 31, operative part)
Case C-126/03

Commission of the European Communities

v

Federal Republic of Germany

(Failure of a Member State to fulfil obligations – Directive 92/50/EEC – Public contracts – Waste transport services – Procedure without prior publication of a contract notice – Contract concluded by a contracting authority in relation to an economic activity subject to competition – Contract concluded by a contracting authority in order to be able to submit an offer in a tender procedure – Proof of the service provider’s capabilities – Possibility of relying on the capabilities of a third party – Subcontracting – Consequences of a judgment finding a failure to fulfil an obligation)

Summary of the Judgment

Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Scope – Contract unrelated to the activities in the general interest of the contracting authority – Included – Contract aiming to subcontract the activities of a local or regional authority operating as a service provider – Included

(Council Directive 92/50, Arts 1(a) and (b), 8 and 11)

Article 8 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Article 1(a) and (b) and Article 11(1) of the directive, provides that, where contracts for pecuniary interest concluded in writing between a service provider and a regional or local authority have as their object the services listed in Annex I A to the directive, they must be the subject of an open, restricted or negotiated procedure within the meaning of that directive.

In that regard, the fact that the contract does not fall within the scope of activities in the general interest of that local or regional authority, but comprises an independent economic activity, which is clearly distinct and subject to competition, does not show that that contract is not a public contract for the purposes of Articles 8 and 11 of Directive 92/50. Article 1(a) of that directive makes no distinction between public contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task.

It is likewise irrelevant that the contracting authority intends to operate as a provider of services itself and that the contract in question aims, in that context, to subcontract a part of the activities to a third party.

(see paras 13, 16, 18)
Case C-106/03 P

Vedial SA

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Appeal – Community trade mark – Article 8(1)(b) of Regulation (EC) No 40/94 – Likelihood of confusion – Word and figurative mark HUBERT – Opposition of the proprietor of the national word mark SAINT-HUBERT 41 – Capacity of OHIM as defendant before the Court of First Instance)

Summary of the Judgment

Community trade mark – Review procedures – Review before the Community Courts – Procedural role of the Office – Opposition proceedings – No power to alter the terms of the dispute before the Court of First Instance

(Rules of Procedure of the Court of First Instance, Art. 133(2); Council Regulation No 40/94, Art. 63(2))

In proceedings concerning an action against a decision of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on an opposition to registration of a Community mark based on the likelihood of confusion with an earlier mark, the Office does not have the power to alter before the Court of First Instance the terms of the dispute, as delimited in the respective claims and allegations of the applicant for registration and of the opposing party.

Although under Article 133(2) of the Rules of Procedure of the Court of First Instance, the Office is the defendant in proceedings before the Court of First Instance, the proceedings before that Court are intended to resolve a dispute between the applicant for registration and the holder of an earlier mark.

Therefore, any finding that the Office has the power to alter the terms of the dispute before the Court of First Instance defeats the legitimate expectation of the party which was successful before the Board of Appeal, in so far as the purpose of proceedings before the Court of First Instance is, pursuant to Article 63(2) of Regulation No 40/94, to review the legality of the decision of the Board of Appeal.

(see paras 26-27, 36)
Case C-306/03

Cristalina Salgado Alonso

v

Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)

(Reference for a preliminary ruling from the Juzgado de lo Social nº 3 de Orense)

(Social security for migrant workers – Articles 12 EC, 39 EC and 42 EC – Articles 45 and 48(1) of Regulation (EEC) No 1408/71 – Old age and death – Unemployment – Minimum periods of insurance – Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits – Periods of unemployment – Aggregation)

Opinion of Advocate General Kokott delivered on 28 October 2004

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

Summary of the Judgment

Social security for migrant workers – Old-age and death insurance – Periods to be taken into consideration – National legislation not taking into consideration, for acquiring the right to benefits, periods of insurance completed in the territory of the State as an unemployed person – Whether permissible

(Arts 39 EC and 42 EC; Council Regulation No 1408/71, Art. 45)

Articles 39 EC and 42 EC and Article 45 of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, must be interpreted as not precluding a national provision which does not allow the competent authorities of a Member State to take into consideration, for the purposes of acquiring the right to a retirement pension under the national scheme, certain periods of insurance completed on the territory of that State by an unemployed worker during which contributions to old-age insurance were paid by the unemployment benefit agency, such periods being taken into consideration solely for the calculation of the amount of that pension.

(see para. 38, operative part)
Case C-358/03

Commission of the European Communities

v

Republic of Austria

(Failure of a Member State to fulfil obligations – Workers’ protection – Health and safety of workers – Manual handling of loads where there is a risk of injury to workers)

Summary of the Judgment

Member States – Obligations – Implementation of directives – Failure to fulfil obligations – National system pleaded as justification – Not permissible

(Art. 226 EC)

A Member State may not plead situations in its internal legal order, including those resulting from its federal organisation, in order to justify failure to comply with the obligations and time-limits laid down in a directive. In that regard, a Federal State cannot argue that its constitutional law precludes it from adopting measures transposing a directive in the place of a federated State and that only censure by the Court confers the power on the Federal State to undertake the transposition.

Though each Member State may freely allocate areas of internal legal competence as it sees fit, the fact remains that it alone is responsible to the Community under Article 226 EC for compliance with obligations arising under Community law.

(see paras 12-13)
Case C-33/03

Commission of the European Communities

v

United Kingdom of Great Britain and Northern Ireland

(Failure of a Member State to fulfil obligations – Articles 17 and 18 of the Sixth VAT Directive – Provision of national law under which an employer may deduct VAT on supplies of fuel to his employees when reimbursing their fuel costs)

Opinion of Advocate General Stix-Hackl delivered on 14 December 2004

Judgment of the Court (First Chamber), 10 March 2005

Summary of the Judgment





Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – National legislation allowing an employer to deduct the tax on supplies of fuel to his employees – Fuel not used solely for business purposes – Not permissible

(Council Directive 77/388, Arts 17(2)(a) and 18(1)(a))

By granting taxable persons, in this case employers, the right to deduct value added tax on certain supplies of fuel to non-taxable persons, in this case their employees, in conditions that do not ensure that the tax deducted attaches solely to fuel used for the purposes of the taxable person’s taxable transactions, a Member State fails to fulfil its obligations under Articles 17(2)(a) and 18(1)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.

(see paras 18, 26, 31 and operative part)
Case C-134/03

Viacom Outdoor Srl

v

Giotto Immobilier SARL

(Reference for a preliminary ruling from the Giudice di pace di Genova-Voltri)

(Freedom to provide services – Competition – Bill-posting services – Domestic legislation imposing a municipal tax on advertising – Supply by municipalities of a public bill-posting service – Power of the municipalities to regulate the supply of bill-posting services – Internal taxation not discriminatory)

Opinion of Advocate General Kokott delivered on 28 October 2004

Judgment of the Court (Third Chamber), 17 February 2005

Summary of the Judgment

1. Preliminary rulings – Admissibility – Need to supply the Court of Justice with information concerning the factual and legislative context – Extent of the obligation in the field of competition

(Arts 82 EC, 86 EC and 234 EC; Statute of the Court of Justice, Art. 23)

2. Freedom to provide services – Restrictions – Tax on outdoor advertising and bill-posting levied by a local authority – Permissible – Conditions

(Art. 49 CE)

1. If the Court is to be able to give helpful answers to the questions referred to it, it is necessary for the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain the factual circumstances on which those questions are based.

That need for precision with regard to the factual and legislative context applies especially in the area of competition, which is characterised by complex factual and legal situations.

With regard to the factual context relating to the questions concerning the interpretation of Articles 82 EC and 86 EC, the determination of the materially and geographically relevant market, and the calculation of the market shares held by the various undertakings operating on that market, constitute the starting-point of any appraisal of a situation in the light of competition law.

(see paras 22-23, 25, 27)

2. Article 49 EC must be interpreted as not precluding the levying by a municipal authority of a tax on outdoor advertising and bill-posting which, first, because it is applicable without distinction to any provision of services entailing outdoor advertising and public bill-posting, does not draw any distinction based on the place of establishment of the provider or recipient of the bill-posting services or on the place of origin of the goods or services that form the subject-matter of the advertising messages disseminated and which, second, because it is applied only to outdoor advertising activities involving the use of public space administered by the local authorities and its amount is fixed at a level which may be considered modest in relation to the value of the services provided which are subject to it, is not on any view liable to prohibit, impede or otherwise make less attractive the provision of advertising services to be carried out in the territory of those authorities, including the case in which the provision of services is of a cross-border nature on account of the place of establishment of either the provider or the recipient of the services.

(see paras 37-39, operative part)
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.