ddrg/super_eurlex huggingface dataset:
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Freedom of movement for persons – Freedom of establishment – Workers – Recognition of professional qualifications – Scope of Directive 2005/36

(Arts 39 EC and 43 EC; European Parliament and Council Directive 2005/36, Art. 3(1)(a))

Summary

The fact that access to a profession is reserved to candidates who have been successful in a procedure to select a predefined number of persons on the basis of a comparative assessment of the candidates rather than by application of absolute criteria, which confers a qualification the validity of which is strictly limited in time, does not mean that that profession constitutes a regulated profession within the meaning of Article 3(1)(a) of Directive 2005/36 on the recognition of professional qualifications.

Nevertheless, in the context of such a selection procedure, Articles 39 EC and 43 EC, which guarantee to the nationals of the Member States access to activities, in a self-employed or employed capacity, without discrimination based on nationality, require qualifications obtained in other Member States to be accorded their proper value and to be duly taken into account.

(see paras 34-36, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Refund of the tax to taxable persons not established in the territory of the country

(Council Directive 79/1072, Annex A)

Summary

‘Signature’ of an application for a refund of value added tax, as referred to in the specimen form set out in Annex A to Eighth Directive 79/1072 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, is a Community law notion which must be interpreted uniformly to the effect that such a refund application need not necessarily be signed by the taxable person in person and that the signature of an agent may be sufficient for those purposes.

(see para. 29, operative part)
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1. Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 234 EC)

2. European Union law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals

Summary

1. Although it is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with the legal rules of the European Union, it has jurisdiction to give the national court full guidance on the interpretation of European Union law in order to enable it to determine the issue of compatibility for the purposes of the case before it.

To that end, the origin – whether legislative, regulatory or judicial – of the rules of national law whose compatibility with European Union law the national court must assess, in the light of the guidance on interpretation provided by the Court, has no effect whatsoever on the latter’s jurisdiction to rule on the reference for a preliminary ruling.

(see paras 23-24)

2. European Union law precludes the application of a rule of a Member State under which an action for damages against the State, alleging a breach of that law by national legislation which has been established by a judgment of the Court of Justice of the European Communities given pursuant to Article 226 EC, can succeed only if the applicant has previously exhausted all domestic remedies for challenging the validity of a harmful administrative measure adopted on the basis of that legislation, when such a rule is not applicable to an action for damages against the State alleging breach of the Constitution by national legislation which has been established by the competent court.

The principle of equivalence requires that all the rules applicable to actions apply without distinction to actions alleging infringement of European Union law and to similar actions alleging infringement of national law. In the light of their purpose and their essential characteristics, the two actions for damages concerned may be regarded as similar since, first, they have exactly the same purpose, namely compensation for the loss suffered by the person harmed as a result of an act or an omission of the State and, second, the only difference between the two actions concerned is the fact that the breaches of law on which they are based are established, in respect of one, by the Court in a judgment given pursuant to Article 226 EC and, in respect of the other, by a judgment of the competent national court. That fact, in the absence of other factors demonstrating that there are further differences between those actions, cannot suffice to establish a distinction between those two actions in the light of the principle of equivalence. Accordingly, the principle of equivalence precludes the application of such a rule.

(see paras 33, 36, 43-46, 48 and operative part)
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Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age

(Council Directive 2000/78, Arts 2(2)(a) and 4(1))

Summary

Article 4(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years.

Although it introduces a difference of treatment on grounds of age for the purposes of Article 2(2)(a) of Directive 2000/78, that national legislation may be regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service, which constitutes a legitimate objective within the meaning of Article 4(1) of the directive, and, second, as not going beyond what is necessary to achieve that objective, since the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement within the meaning of that provision for carrying on the occupation of a person in the intermediate career of the fire service, and the need to possess full physical capacity to carry on that occupation is related to the age of the persons in that career.

(see paras 29, 39-41, 44, 46, operative part)
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Agriculture – Approximation of laws on animal health – Protective measures with regard to transmissible spongiform encephalopathies

(European Parliament and Council Regulation No 999/2001, as amended by Regulation No 1248/2001, Art. 6(1) and Annex III, Chapter A, Part I)

Summary

Article 6(1) of Regulation No 999/2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies and Annex III, Chapter A, Part I, to that regulation, as amended by Regulation No 1248/2001, do not preclude national rules under which all bovine animals over 24 months of age must be screened for bovine spongiform encephalopathy (BSE).

In accordance with the principle of proportionality, which is one of the general principles of European Union law, the lawfulness of such screening tests is subject to the condition that they be appropriate and necessary in order to attain the objectives legitimately pursued; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

In that regard, the introduction of testing for all bovine animals of 24 to 30 months of age is an appropriate measure for detecting cases of BSE in animals in that age bracket and therefore for achieving the directly desired objective of that regulation which is, in accordance with its legal basis, namely, Article 152(4)(b) EC, the protection of public health. Furthermore, as regards the necessity of that measure, it must be borne in mind that Member States have a discretion in that field. Therefore, the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate. Likewise, the fact that, in response to the discovery of isolated cases of BSE in animals of 28 months of age the Community legislature required, in respect of bovine animals over 24 months of age, less extensive testing than that introduced by a Member State does not mean that that State may not properly regard that testing as necessary. Lastly, such a measure does not appear to go beyond what is necessary to achieve the objective of the protection of public health as it results from Regulation No 999/2001.

(see paras 32, 43-48, operative part)
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1. Approximation of laws – Protection of consumers in respect of contracts negotiated away from business premises – Directive No 85/577

(Council Directive No 85/577, Art. 1(1), second indent, and (2))

2. Approximation of laws – Protection of consumers in respect of contracts negotiated away from business premises – Directive No 85/577

(Council Directive No 85/577, Art. 5(2))

Summary

1. Directive No 85/577 to protect the consumer in respect of contracts negotiated away from business premises applies to a contract between a trader and a consumer entered into following an unsolicited doorstep transaction at the home of the consumer, concerning that consumer’s entry into a closed-end real property fund established in the form of a partnership when the principal purpose of joining is not to become a member of that partnership, but is a means of capital investment.

(see paras 28, 34, operative part 1)

2. Article 5(2) of Directive No 85/577 to protect the consumer in respect of contracts negotiated away from business premises does not preclude a national law according to which, in the event of cancellation of membership of a closed-end real property fund established in the form of a partnership, entered into following an unsolicited doorstep transaction at the home of the consumer, that consumer has a claim against that partnership to his severance balance, calculated on the basis of the value of his interest at the date of his retirement from membership of that fund, and may therefore get back less than the value of his capital contribution or have to participate in the losses of that fund.

While there is no doubt that the aim of the directive is to protect consumers, that does not imply that that protection is absolute. Thus, both the general structure of the directive and the wording of several of its provisions indicate that such protection is subject to certain limits. As regards the consequences of the exercise of the right of renunciation in particular, notification of the cancellation has the effect, both for the consumer and for the trader, of restoring the status quo ante . However, the fact remains that there is nothing in the directive to preclude the consumer, in certain specific cases, from having obligations to the trader and, depending on the circumstances, from having to bear certain consequences resulting from the exercise of his right of cancellation.

(see paras 44-45, 50, operative part 2)
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Common Customs Tariff – Tariff heading – Adapter containing a memory-chip and designed to provide the electrical connection between an automatic programming machine and the electrical components to be programmed

(Council Regulation No 2658/87, Annex I; Commission Regulation No 1810/2004)

Summary

An adapter, such as that at issue in the main proceedings, that performs the functions of the electrical connection between the programming machine and the components to be programmed and of the storage of the programming process, which can be retrieved later, fulfils the condition set out in Note 5(B)(c) to Chapter 84 of the Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1810/2004 and must be classified under heading 8471 thereof as a ‘unit’ of an automatic data processing machine, in so far as its main function is to carry out data processing. Where that function is lacking, such an adapter must be classified under heading 8473 of the Combined Nomenclature as a ‘part’ or ‘accessory’ of a machine, as the case may be, if it is either essential to the functioning of that machine or constitutes a part or device designed to adapt a machine for a particular operation or an element to perform a particular service relative to the main function of that machine, which it is for the referring court to determine. If that adapter cannot be classified under either of the abovementioned headings, it must be considered to be an ‘electrical apparatus for making connections to or in electrical circuits’, and consequently to fall under heading 8536 of the Combined Nomenclature.

(see paras 43-45, operative part)
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Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Member States’ right to apply a reduced rate to certain supplies of goods or services

(Council Directive 2006/112, Arts 96 and 98(2), and Annex III, point 15)

Summary

A Member State that applies a reduced rate of value added tax to the supply of services by avocats , avocats au Conseil d’État et à la Cour de cassation and avoués , for which they are paid in full or in part by the State under the legal aid scheme, fails to fulfil its obligations under Articles 96 and 98(2) of Directive 2006/112 on the common system of value added tax.

In fact, point 15 of Annex III to Directive 2006/112, to which Article 98(2) thereof refers, permits Member States to apply a reduced rate of value added tax not to all supplies of services related to social wellbeing, but only to services provided by organisations that meet the dual requirement of being themselves devoted to social wellbeing and being engaged in welfare or social security work. Therefore, in order to comply with the wording of point 15, a Member State cannot apply a reduced rate of value added tax to supplies of services provided by private profit-making entities merely on the basis of an assessment of the nature of those services without taking into account, inter alia, the objectives pursued by those entities viewed as a whole and whether they are engaged in welfare work on a permanent basis.

In the light of its overall objectives and the fact that any engagement in welfare work is not permanent, the professional category of lawyers as a whole cannot be regarded as devoted to social wellbeing. Thus, even supposing that the services provided by lawyers under the legal aid scheme are related to social wellbeing and can be classified as ‘engagement in welfare or social security work’, that fact is not sufficient to conclude that those lawyers may be classified as ‘organisations … devoted to social wellbeing … and engaged in welfare or social security work’, within the meaning of point 15 of Annex III to Directive 2006/112.

(see paras 43, 45-47, 49, operative part)
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Fisheries – Conservation of the resources of the sea – Technical conservation measures – Fisheries in the Mediterranean – Regulation No 1626/94

(Council Regulation No 1626/94, Arts 1(2) and 3)

Summary

Article 1(2) and Article 1(3) of Regulation No 1626/94 laying down certain technical measures for the conservation of fishery resources in the Mediterranean, as amended by Regulation No 2550/2000, must be interpreted as meaning, firstly, that the entry into force of that regulation does not affect the validity of a supplementary national measure, a prohibition, which was adopted before that entry into force and, secondly, that those provisions do not preclude such a measure, provided that that prohibition is in conformity with the common fisheries policy, that it does not go beyond what is necessary to achieve the objective pursued and that it is not contrary to the principle of equal treatment.

(see para. 58, operative part)
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1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure – Details of the original objections in the application initiating proceedings – Whether permissible

(Art. 226 EC)

2. Freedom to provide services – Restrictions – Construction sector

(Art. 49 EC)

Summary

1. The fact that, in its application, the Commission sets out in detail the arguments supporting its conclusion as to the alleged failure to fulfil obligations, arguments already put forward in more general terms in the letter of formal notice and the reasoned opinion, and merely explains further why it takes the view that a scheme is incompatible with the freedom to provide services, does not alter the subject of that infringement and thus has no effect on the scope of the proceedings.

(see para. 47)

2. A Member State fails to fulfil its obligations under Article 49 EC by requiring providers of building services established in another Member State to satisfy all the requirements imposed by the relevant national scheme of the first Member State in order to obtain authorisation to exercise an activity in the construction sector, thereby excluding the possibility of account’s being duly taken of equivalent obligations to which such providers are subject in the Member State in which they are established, or of the verifications already carried out in that regard by the authorities of that State.

A restriction of Article 49 EC can be justified only to the extent that the public interest the national legislation seeks to protect is not safeguarded by the rules to which the service provider is subject in the Member State of establishment.

(see paras 100, 108, operative part)
Judgment of the Court (Fifth Chamber) of 4 December 2008 – Commission v Spain

(Case C‑113/08)

Failure of a Member State to fulfil obligations – Directive 2006/49/EC – Investment firms and credit institutions – Capital adequacy – Failure to transpose within the prescribed period

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. 20)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, all the provisions necessary to comply with Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast) (OJ 2006 L 177, p. 201).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast) and, in particular, Articles 17, 22 to 25, 30, 33, 35, 40, 41, 43, 44 and 50 and Annexes I, II and VII, the Kingdom of Spain has failed to fulfil its obligations under that directive;
1.

Declares that, by failing to draw up within the prescribed period an external emergency plan for the measures to be taken outside establishments subject to Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11(1)(c) of that directive.
Judgment of the Court (Sixth Chamber) of 15 January 2009 – Commission v Greece

(Case C‑259/08)

Failure of a Member State to fulfil obligations – Directive 79/409/EEC – Conservation of wild birds – Preservation and maintenance of habitats – Classification of special protection areas – Prohibition of hunting and capture – Incorrect transposition

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. 9)

Re:

Failure of a Member State to fulfil obligations – Failure to transpose Article 3(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) – Defective transposition of Articles 3(2), 4(1), 5 and Article 8(1) of that directive.

Operative part

The Court:

1. Declares that, by failing to take all the measures necessary to transpose fully and/or correctly the obligations under Articles 3(1) and (2), 4(1), 5 and 8(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under those provisions;
Judgment of the Court (Seventh Chamber) of 4 June 2009 – Commission v Sweden

(Case C‑555/08)

Failure of a Member State to fulfil obligations – Directive 2005/56/EC – Cross-border mergers of limited liability companies – Failure to transpose within the prescribed period

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)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt, within the prescribed period, all the measures necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (OJ 2005 L 310, p. 1) – Financial institutions which require authorisation by a public body, in particular banks and insurance companies.

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 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, with regard to financial institutions which require authorisation by a public authority, in particular certain banks and insurance companies, the Kingdom of Sweden has failed to fulfil its obligations under that directive;
1.

Declares that by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the Hellenic Republic has failed to fulfil its obligations under Article 19(1) of that directive;
Judgment of the Court (Sixth Chamber) of 1 October 2009 – Commission v Belgium

(Case C‑575/08)

Failure of a Member State to fulfil obligations – Directive 2005/56/EC – Cross-border mergers of limited liability companies – Failure to transpose within the prescribed period

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. 8)

Re:

Failure of a Member State to fulfil obligations – Failure to take or communicate, within the prescribed period, the measures necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (OJ 2005 L 310, p. 1).

Operative part

The Court:

1. Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, the Kingdom of Belgium has failed to fulfil its obligations under that directive;