ddrg/super_eurlex huggingface dataset:
((Action for failure by a Member State to fulfil its obligations – Directive 89/391/EEC – Measures aimed at encouraging improvements in the safety and health of workers at work – Order of precedence between organising the measures to protect and prevent against occupational hazards within the undertaking and enlisting an external agency to provide the service))
((Agriculture – Health rules for the production and placing on the market of milk – Free movement of goods – Labelling and presentation of foodstuffs – National law imposing a best before date of four days after preparation for milk pasteurised at high temperature))
((Value added tax – Article 13A(1)(b) and (c) of the Sixth Directive 77/388/EEC – Exemption from tax – Psychotherapeutic treatment given in an out-patient facility provided by a foundation (charitable establishment) employing qualified psychologists who are not registered as doctors – Direct effect))
((Failure of a Member State to fulfil obligations – Judgment of the Court establishing such failure – Non-compliance – Article 228 EC – Financial penalties – Periodic penalty payment – Quality of bathing water – Directive 76/160/EEC))
(Plant varieties – System of protection – Article 14(3) of Regulation (EC) No 2100/94 and Article 3(2) and Article 8 of Regulation (EC) No 1768/95 – Organisation of holders – Meaning – Duty of an organisation to act only for its members – Authorisation granted to farmers to use for propagating purposes, on their own holding, the product of the harvest which they have obtained by planting a protected variety – Scope of the duty to provide information to the holder of the Community plant variety right)
((Equal treatment for men and women – Promotion – Principle of effective control by the courts))
(Interpretation of Article 39 EC – Restriction on the freedom of movement for workers on grounds of public policy – Expulsion on account of criminal offences in connection with drugs and danger of recidivism – Duration of worker's residence – Interests of his wife and children – Interpretation of Articles 3 and 9(1) of Directive 64/221/EEC – No re-examination of expediency)
(Directive 91/439/EEC – Refusal by a Member State to recognise a driving licence issued by another Member State – Grounds of refusal – Normal residence of the licence-holder not in the Member State where the licence was issued – Withdrawal of a licence previously issued in the host Member State)
((Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Working time – Rest periods – Concept – On-call service provided by doctors in hospitals))
OPINION OF ADVOCATE GENERAL

M. F.G. Jacobs

delivered on 12 December 2002 ( )

Case C-85/02

Commission des Communautés européennes

v

République française

()

1. In this case the Commission seeks a declaration, pursuant to Article 226 EC, that, by not adopting the laws, regulations and administrative provisions necessary to transpose point 12 of Annex II to Council Directive 91/439/EEC of 29 July 1991 on driving licences, ( )(2) the French Republic has failed to fulfil its obligations under the directive.

2. Directive 91/439 lays down the conditions for the issue of a driving licence. Annex II lays down the minimum requirements for driving tests. Point 12 concerns the length of the driving test for different categories of vehicle, and provides that for certain categories (categories A, B and B+E) in no circumstances should the time spent driving on the road be less than 25 minutes.

3. It is not disputed that under the French provisions governing driving tests, the average duration of the test is 22 minutes. France accepts in its defence that it has not yet implemented the requirements of point 12 of Annex II, and explains the difficulties which it has encountered in doing so. It also states that it is making every effort to implement the provisions as soon as possible.

4. It follows that the Commission's application is well founded.

Conclusion

5. I am therefore of the opinion that the Court should

1) declare that, by not adopting the laws, regulations and administrative provisions necessary to transpose point 12 of Annex II to Council Directive 91/439/EEC of 29 July 1991 on driving licences, the French Republic has failed to fulfil its obligations under the directive;

2) order the French Republic to pay the costs.
((Social security – National system of unemployment benefits laying down a rule against overlapping of benefits as regards certain income – Unemployment benefits for former temporary officials of the European Communities – Freedom of movement for workers – National scheme of unemployment insurance – Classification of post-graduate employment – Employment as a trainee fellowship student – Different classification with regard to different Member States of the EEA – Discrimination))
(Action for annulment – Act against which an action for annulment may be brought – Conclusion of an arrangement by the Commission concerning guidelines on regulatory cooperation and transparency – Competence – The Commission's right of initiative)
((Interpretation of Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 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, in conjunction with Article 2(1)(b) thereof (OJ 1989 L 395, p. 33) – Persons to whom review procedures are available – Persons having or having had an interest in the award of a public contract – Person unable to perform the totality of that contract – Person who has not had recourse to a remedy available at an earlier state of the procedure))
(EEC-Turkey Association Agreement – Principle of equal treatment – Direct effect – Social security for migrant workers – Early old-age pension for unemployed workers – Requirement that a claimant must have received unemployment benefit in the Member State in which he applies for the pension)
(Interpretation of Article 3(1) of Council Directive 93/13/EEC on unfair terms in consumer contracts – Contract for the building and delivery of a parking space in a car park – Clause reversing the order of performance of the contractual obligations (as regulated by non-mandatory provisions of German law) in return for the provision of a bank guarantee)
(Trade marks – First Directive 89/104/EEC – Article 2 – Signs of which a trade mark may consist – Two colours per se – Exclusion)
(Plant variety rights – System of protection – Article 14(3) of Regulation (EC) No 2100/94 and Article 9 of Regulation (EC) No 1768/95 – Use by a farmer for propagating purposes, on his own holding, of the product of the harvest of a protected variety – Seed-processing undertakings – Obligation to provide information to the holder of the right)
(Action for failure to fulfil obligations – Environment – Directives 75/442 and 91/689 – Hazardous and non-hazardous waste – Waste disposal or waste recovery operations – Exemption from the requirement for a permit – Concept of quantity)
(Directive 96/9/EC – Databases – Legal protection – Sui generis right – Beneficiaries – Substantial investment – Obtaining, verification and presentation of the contents of a database – (In)substantial part of the contents of a database – Extraction and re-utilisation – Normal exploitation – Unreasonable prejudice to the legitimate interests of the maker – Substantial change to the contents of a database – Sport – Betting)
On the basis that part-time employment exclusively or mainly concerned women, can the provisions under which part-time employment is entirely excluded (until 1 January 1996) or taken into account in proportion to full-time employment (from 1 January 1996) be interpreted, in the light also of the case-law of the Court of Justice, as introducing indirect discrimination on grounds of sex prohibited under the rules of Community law and, consequently, should the entire period of part-time employment be added to their length of service?
(Regulation (EEC) No 259/93 on shipments of waste – Waste for recovery – First and second indents of Article 7(4)(a) – Power of the national authorities to raise reasoned objections to a planned shipment based on the conditions in which the waste is to be recovered – Power of the authority of dispatch to raise such objections – Account to be taken by the authority of dispatch of the standards applicable in its State)
(Article 31 EC – State monopolies – Monopoly on the retail sale of medicinal products – Discrimination – Justification – Article 86(2) EC)
(Interpretation of Articles 15 and 16 of First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance and interpretation of Articles 17 and 18 of First Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance – national law giving priority, as regards the guarantee fund, to debts consisting of employees´ pay – compatibility)
(Sixth VAT Directive – Transitional arrangements for trade between Member States – Supply of services – Intermediary services in intra-Community acquisitions of goods – Place where the service is performed – Interpretation of Article 28b(E)(3))
(Sixth VAT Directive – Concept of taxable person – Place where services are supplied – Exemption for management of special investment funds – SICAV [open-ended investment companies])
(Regulation No 4067/89 – Decision declaring conglomerate-type concentration to be incompatible with the common market – Leveraging effect – Scope of judicial review – Commitments as to conduct)
(Statutory retirement pension – Qualifying period – Consideration of insurance periods at home and abroad – Insurance periods which have the effect merely of increasing, not of establishing entitlement – Consideration of periods in which unemployed workers over the age of 52 years received a special unemployment allowance )
(Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 17 September 2003 in Joined Cases T-309/01 and T-239/02 Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar Produkte mbH v Commission – Partial annulment of Commission Decision C(2001) 2533 of 14 August 2001 (Case T-309/01) and annulment of Commission Decision C(2002) 857 of 5 March 2002 (Case T-239/02), finding it appropriate to effect post-clearance recovery of import duties not charged to the appellants in respect of the importation of poultry meat from Thailand)
(Sixth VAT Directive – Article 13B(a) – Insurance and reinsurance transactions – Exemptions – Related services performed by insurance brokers and insurance agents)
(Value added tax – Property transactions – Adjustment of the deduction in respect of input tax – Transfer of a capital good in two transactions – 999 year lease – Freehold reversion)
65.

In the light of all the foregoing, I propose that the Court reply as follows to the Oberverwaltungsgericht für das Land Nordrhein-Westfalen: Article 28(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, is to be interpreted as meaning that sexual abuse of a 14 year old minor, sexual coercion and rape are not covered by the concept of ‘imperative grounds of public security’ where those acts do not directly threaten the calm and physical security of the population as a whole or a large part of it. Article 28(2) and (3) is to be interpreted as meaning that a Union citizen cannot rely on the right to enhanced protection against expulsion under that provision where it is shown that that citizen is deriving that right from criminal conduct constituting a serious disturbance of the public policy of the host Member State.
49.

In the view of SCF and the French Government, there is communication to the public within the meaning of Article 8(2) of Directive 2006/115. The concept of communication to the public in Article 3(1) of Directive 2001/29 and in Article 8(2) of Directive 2006/115 must be given a uniform and consistent interpretation throughout the European Union. SGAE, which concerned Article 3(1) of Directive 2001/29, may therefore be applied by analogy to Article 8(2) of Directive 2006/115. This follows, first of all, from the wording and purpose of the directives. It is not precluded by the fact that Directive 2006/115 does not contain a recital comparable to recital 23 in the preamble to Directive 2001/29, under which the concept of communication to the public should be understood in a broad sense. Recital 23 is redundant in that respect. In so far as a different level of protection is taken to exist in the two directives, this relates to the form of the rights, but not to the concept of communication to the public. Furthermore, it does not follow from the fact that authors are granted an exclusive right under Article 3(1) of Directive 2001/29, whilst phonogram producers and performers are only granted an economic right under Article 8(2) of Directive 2006/115, that the concept of communication to the public should be given a different interpretation in those two provisions. What is more, a consistent interpretation is also suggested by the fact that in international law the WPPT and the WCT likewise provide for a consistent concept of communication to the public. Besides, the Court’s judgment in SENA ( 10 ) is not applicable, because in that judgment the Court only dealt with the equitableness of the remuneration. Moreover, it is clear from the scheme of Directive 2001/29 that the interests of other interested parties should not be taken into consideration in interpreting the concept of communication to the public. Lastly, the French Government points out that a uniform interpretation of the concept of communication to the public is also necessary because it is important for the term of protection of copyright and related rights under Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights. ( 11 )
18.

The referring court has to rule on the action which the taxable person brought against that notice. It considers that the Court must answer the following questions in order for it to do so: ‘(1) How is the expression “destruction of property” for the purposes of Article 185(2) of Directive 2006/112 to be interpreted, and are the motives for the destruction and/or the conditions under which it takes place relevant for the purposes of the adjustment to the deduction made upon acquisition of the property? (2) Is the demolition of capital assets, duly proved, with the sole aim of creating new, more modern capital assets with the same purpose to be regarded as a modification of the factors used to determine the amount to be deducted within the meaning of Article 185(1) of Directive 2006/112? (3) Is Article 185(2) of Directive 2006/112 to be interpreted as permitting the Member States to make adjustments in the case of the destruction of property where its acquisition remained totally or partially unpaid? (4) Is Article 185(1) and (2) of Directive 2006/112 to be interpreted as precluding a national provision like Article 79(3) of the Law on VAT and Article 80(2)(1) of the Law on VAT, which provides for an adjustment of the deduction made in cases of destruction of property upon the acquisition of which a total payment of the basic amount and the tax calculated was made, and which makes the non-adjustment of a deduction dependent on a condition other than payment? (5) Is Article 185(2) of Directive 2006/112 to be interpreted as ruling out the possibility of an adjustment to the deduction in the case of the demolition of existing buildings with the sole aim of creating new, more modern buildings in their place which fulfil the same purpose as the demolished buildings and are used for transactions which give entitlement to deduction of input VAT?’
12.

Article 7 of the Order of 20 November 2006 applying Decree No 2006-710 of 19 June 2006, as amended by the Order of 23 February 2010, supplements that provision with calculation rules and makes it clear that the comparison year is the last year during which no agri-environmental measure was put into effect. However, that year must not be earlier than 1992: ‘Article 7 – (1) Where a farmer was subject to one of the agri-environmental commitments defined in Article 3 of this Order during each of the three years of the reference period, the rate of reduction calculated for the purposes of applying the ninth paragraph of Article 1 of the abovementioned Decree of 19 June 2006 shall correspond to the ratio between: — the difference between the amount of the aid received during the last year not affected by an agri-environmental commitment and the average of the amounts of aid received during the reference period; — and the sum of that difference and the reference amount, calculated in accordance with Article 37 of the abovementioned Council Regulation No 1782/2003. … (2) Where the rate of reduction calculated in accordance with paragraph 1 reaches the threshold of 20% referred to in the ninth paragraph of Article 1 of the abovementioned Decree of 19 June 2006, an amount shall be added to its reference amount, calculated in accordance with Article 37 of the abovementioned Regulation No 1782/2003 … The amount to be added shall be equal to the difference between the amount of the aid received during the last year not affected by an agri-environmental commitment and the average of the amounts of aid received during the reference period. (3) For the application of the present article, the last year not affected by an agri-environmental commitment shall not be earlier than 1992.’
7.

Article 7(1) and (2) of Directive 2004/38, under the heading ‘Right of residence for more than three months’, provides: ‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or (c) — are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; — and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’
3.

Directive 2001/23 lays down common rules governing the rights and obligations of the transferor undertaking and that undertaking’s employees in the case of a transfer. For the purposes of the present proceedings, Article 3(1), (3) and (4) are particularly relevant: ‘Article 3 1. The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer. … 3. Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. Member States may limit the period for observing such terms and conditions with the proviso that it shall not be less than one year. (a) Unless Member States provide otherwise, paragraphs 1 and 3 shall not apply in relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or intercompany pension schemes outside the statutory social security schemes in Member States. (b) Even where they do not provide in accordance with subparagraph (a) that paragraphs 1 and 3 apply in relation to such rights, Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old age benefits, including survivors’ benefits, under supplementary schemes referred to in subparagraph (a).’
15.

Annex II to Regulation No 1/2005 contains provisions relating to the journey log which transporters and organisers are required to keep under Article 5(4) of the regulation for long journeys between Member States and between Member States and third countries. That log comprises five sections relating, respectively, to journey planning, the place of departure, the place of destination, the declaration by transporter concerning, first, the actual itinerary, resting, transfer and exit points, and, second, animal injuries and deaths during the journey, and any anomaly reports. The annex includes the following provisions: — point 3(e): ‘[t]he organiser shall ... ensure that the journey log accompanies the animals during the journey until the point of destination or, in case of export to a third country, at least until the exit point’; — point 4: ‘Keepers at the place of departure and, when the place of destination is located within the territory of the Community, keepers at the place of destination, shall complete and sign the relevant sections of the journey log. They shall inform the competent authority of any reservations concerning compliance with the provisions of this Regulation using the specimen form in Section 5 as soon as possible’; — point 7: ‘If animals are exported to a third country, transporters shall give the journey log to the official veterinarian at the exit point. In the case of export of live bovine animals with refunds, Section 3 of the journey log shall not be required if the agricultural legislation requires a report’; — point 8: ‘The transporter referred to in Section 3 of the journey log shall keep ... (a) a copy of the completed journey log; ... . Documents referred to ... shall be made available to the competent authority which granted the transporter’s authorisation and upon request to the competent authority of the place of departure, within one month after it has been completed and shall be kept by the transporter for a period of at least three years from the date of the check. Documents referred to in point (a) shall be returned to the competent authority of the place of departure within 1 month after the completion of the journey, unless the [navigation] systems referred to in Article 6(9) were used. ...’