larimo/cjeu-paragraph-retrieval huggingface dataset:
Criminal proceedings against Lothar Messner.
Date: 1989-12-12
8 The Court accordingly concluded that such an obligation could not in itself be regarded as an infringement of the rules concerning freedom of movement for persons . It pointed out, however, that such an infringement might result from legal formalities if those formalities were designed in such a way that they restricted the freedom of movement required by the Treaty or limited the right conferred on nationals of the Member States to enter and reside in the territory of any other Member State for the purposes intended by Community law ( paragraph 18 of the judgment in Watson and Belmann, cited above ).
14 Moreover, it must be added that, as the Court has already held in its judgment of 3 July 1980 in Case 157/79 Regina v Pieck (( 1980 )) ECR 2171, in relation to a failure to comply with the formalities required to establish the right of residence of a worker enjoying the protection of Community law, whilst the national authorities are entitled to make the failure to comply with such provisions subject to penalties comparable to those attaching to minor offences committed by their own nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of workers . This would be especially so if the penalty consisted of imprisonment .
Genius Holding BV v Staatssecretaris van Financiën.
Date: 1989-12-13
13 It must be inferred from the changes made to the abovementioned provisions that the right to deduct may be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due .
17 That interpretation of Article 17(2)(a ) is the one which is best adapted to prevent tax evasion, which would be made easier if any tax invoiced could be deducted .
18 Finally, with regard to the argument put forward by the appellant in the main proceedings and the Commission to the effect that the fact of limiting the exercise of the right to deduct to taxes corresponding to the supply of goods and services calls into question the neutrality of VAT, it should be pointed out that, in order to ensure the application of that principle, it is for the Member States to provide in their internal legal systems for the possibility of correcting any tax improperly invoiced where the person who issued the invoice shows that he acted in good faith .
19 The answer to the first question should therefore be that the right to deduct provided for in the Sixth Council Directive, 77/388/EEC, of 17 May 1977 does not apply to tax which is due solely because it is mentioned on the invoice .
Brother International GmbH v Hauptzollamt Gießen.
Date: 1989-12-13
15 It is clear from Article 5 as interpreted in previous judgments of the Court that the decisive criterion is that of the last substantial process or operation . That view is moreover confirmed by Rule 3 of Annex D.1 to the International Convention on the simplification and harmonization of customs procedures ( the Kyoto Convention ), which was accepted on behalf of the Community by Council Decision 77/415/EEC of 3 June 1977 ( Official Journal 1977, L 166, pp . 1 and 3 ). Rule 3 reads "Where two or more countries have taken part in the production of the goods, the origin of the goods shall be determined according to the substantial transformation criterion ".
20 In view however of the variety of operations which may be described as assembly there are situations where consideration on the basis of technical criteria may not be decisive in determining the origin of goods . In such cases it is necessary to take account of the value added by the assembly as an ancillary criterion .
21 The relevance of that criterion is moreover confirmed by the Kyoto Convention the notes of which in relation to Rule 3 of Annex D.1 state that in practice the substantial transformation criterion can be expressed by the ad valorem percentage rule, where either the percentage value of the materials utilized or the percentage of the value added reaches a specified level .
22 As regards the application of that criterion and in particular the question of the amount of value added which is necessary to determine the origin of the goods in question, the basis should be that the assembly operations as a whole must involve an appreciable increase in the commercial value of the finished product at the ex-factory stage . In that respect it is necessary to consider in each particular case whether the amount of the value added in the country of assembly in comparison with the value added in other countries justifies conferring the origin of the country of assembly .
29 The answer to the second question put by the national court must therefore be that the transfer of assembly from the country in which the parts were manufactured to another country in which use is made of existing factories does not in itself justify the presumption that the sole object of the transfer was to circumvent the applicable provisions unless the transfer of assembly coincides with the entry into force of the relevant regulations . In that case, the manufacturer concerned must prove that there were reasonable grounds, other than avoiding the consequences of the provisions in question, for carrying out the assembly operations in the country from which the goods were exported .
Augustin Oyowe and Amadou Traore v Commission of the European Communities.
Date: 1989-12-13
16 Finally, it must be borne in mind that in any event the duty of allegiance to the Communities imposed on officials in the Staff Regulations cannot be interpreted in such a way as to conflict with freedom of expression, a fundamental right which the Court must ensure is respected in Community law, which is particularly important in cases, such as the present, concerning journalists whose primary duty is to write in complete independence of the views of either the ACP States or the Communities .
M. L. Ruzius-Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten.
Date: 1989-12-13
7 By decision of 15 October 1985, the defendant granted the plaintiff a disability allowance calculated, pursuant to Article 10(5 ) of the 1975 Law, on the basis of her average daily earnings in the year immediately prior to the onset of her disability, during which she worked on average only 18 hours a week .
16 The only reason put forward in the main proceedings to justify the difference of treatment between persons who worked on a part -time basis before the onset of their disability and other beneficiaries of the allowance in question, namely that it would be unjust to grant them an allowance higher than the income previously received, cannot objectively justify that difference of treatment since, in a substantial number of other cases, the amount of the allowance granted under the 1975 Law is higher than that previous income .
17 It must therefore be stated in reply to the first question that Article 4(1 ) of Council Directive 79/7/EEC of 19 December 1978 must be interpreted as precluding a provision from creating, within the framework of national legislation which guarantees a minimum subsistence income to insured persons suffering from incapacity for work, an exception to that principle in respect of insured persons who had previously worked on a part-time basis and from limiting the amount of the allowance to the wage previously received, where that measure affects a much larger number of women than of men, unless that legislation is justified by objective factors unrelated to any discrimination on grounds of sex .
19 It must be observed in that regard that, as the Court has already ruled ( most recently in its judgment of 24 June 1987 in Case 384/85 Borrie Clarke v Chief Adjudication Officer (( 1987 )) ECR 2865 ), Article 4(1 ), standing by itself and seen in the light of the objective and content of that directive, is sufficiently precise to be relied upon by an individual before a national court in order to have any national provision not in conformity with that article declared inapplicable . It should be remembered in that regard that the directive requires the Member States to abolish any provisions which are contrary to the principle of equal treatment .
Maurice Prelle v Commission of the European Communities.
Date: 1989-12-13
9 As the Court has already held, in particular in the judgment of 21 June 1984 in Case 69/83 Lux v Court of Auditors (( 1984 )) ECR 2447, in order to decide whether the requirements of Article 25 of the Staff Regulations have been satisfied it is appropriate to take into consideration not only the contested decision but also the circumstances surrounding its adoption . Since the purpose of the duty to state the reasons upon which a decision is based is both to permit the person concerned to determine whether the decision contains a defect allowing its legality to be challenged and to enable it to be reviewed by the Court, it follows that the extent of that duty must be determined on the basis of the particular facts of each case .
Salvatore Grimaldi v Fonds des maladies professionnelles.
Date: 1989-12-13
7 In so far as the preliminary question concerns the interpretation of recommendations, which, according to the fifth paragraph of Article 189 of the EEC Treaty, have no binding force, it is necessary to consider whether, under Article 177 of the Treaty, the Court has jurisdiction to give a ruling .
8 It is sufficient to state in that respect that, unlike Article 173 of the EEC Treaty, which excludes review by the Court of acts in the nature of recommendations, Article 177 confers on the Court jurisdiction to give a preliminary ruling on the validity and interpretation of all acts of the institutions of the Community without exception .
9 Moreover, in proceedings under Article 177 the Court has already ruled on several occasions on the interpretation of recommendations adopted on the basis of the EEC Treaty ( see judgments of 15 June 1976 in Case 113/75 Frecassetti v Amministrazione delle finanze dello Stato (( 1976 )) ECR 983, and of 9 June 1977 in Case 90/76 Van Ameyde v UCI (( 1977 )) ECR 1091 ). It is therefore necessary to consider the question submitted to the Court .
16 In these circumstances there is no reason to doubt that the measures in question are true recommendations, that is to say measures which, even as regards the persons to whom they are addressed, are not intended to produce binding effects . Consequently, they cannot create rights upon which individuals may rely before a national court .
18 However, in order to give a comprehensive reply to the question asked by the national court, it must be stressed that the measures in question cannot therefore be regarded as having no legal effect . The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions .
Ingrid Raab v Hauptzollamt Berlin-Packhof.
Date: 1989-12-13
12 It should be observed at the outset that, although an exemption from customs duty was provided for goods covered by Chapter 99 of the Common Customs Tariff in order to promote artistic production ( see judgment of 14 December 1988 in Case 291/87 Huber v Hauptzollamt Frankfurt am Main Flughafen (( 1988 )) ECR 6449, paragraph 16 ), that does not mean that all objects that may be recognized as being of an artistic nature are to be classified under that chapter . According to General Rule 1 for the interpretation of the nomenclature of the Common Customs Tariff, the titles of sections, chapters and sub-chapters are provided for ease of reference only, and classification is to be determined according to the terms of the headings and any relevant section or chapter Notes .
14 In this regard the Court has already held ( see judgment in Case 291/87, Huber, cited above, paragraphs 17 and 18 ) that works covered by Heading No 99.02 of the Common Customs Tariff are always a reproduction of an original design executed by hand by the artist, without any mechanical or photomechanical process being used to make the original plate from which the impressions are produced .
23 Photographs are expressly referred to in subheading 49.11 B of the Common Customs Tariff . This subheading does not draw any distinction according to whether or not the photographs are of an artistic nature, and the Court has held ( in its judgment in Case 23/77 Westfaelischer Kunstverein, cited above, paragraph 5 ) that it is a residual heading which covers all artistic printed matter not listed or referred to in any other heading of the Common Customs Tariff .
25 That is the case in particular since, as the Court has pointed out ( see judgment in Case 23/77 Westfaelischer Kunstverein, cited above, paragraph 3 ), the possible artistic merit of an article is defined essentially by reference to subjective and indeterminate criteria, whereas tariff classification must be founded on the objective criteria adopted by the Common Customs Tariff for the purposes both of its effective operation and of legal certainty .
Corsica Ferries France v Direction générale des douanes françaises.
Date: 1989-12-13
8 As the Court has decided on various occasions, the articles of the EEC Treaty concerning the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited .
9 In the area of freedom to provide services such a restriction may, as the Court pointed out in the judgment of 6 July 1988 in Case 127/86 Ministère public v Ledoux (( 1988 )) ECR 3741, result from national tax measures which affect the trader' s exercise of that right .
10 Although Article 59, guaranteeing freedom to provide services within the Community, has been directly and unconditionally applicable since the expiry of the transitional period provided for in Article 8 of the Treaty, under Article 61(1 ) of the Treaty freedom to provide services in the field of transport is to be governed by the provisions of the title relating to transport ( see the judgments of 30 April 1986 in Joined Cases 209 to 213/84 Ministère public v Asjes (( 1986 )) ECR 1457 and of 13 July 1989 in Case 4/88 Lambregts Transportbedrijf v Belgian State (( 1989 )) ECR 2583, paragraphs 8 and 9 ).
11 It follows, as the Court pointed out in the judgment of 30 April 1986 ( cited above, paragraph 37 ), that in the transport sector the objective laid down in Article 59 of the Treaty of abolishing during the transitional period restrictions on freedom to provide services should have been attained in the framework of the common policy provided for in Articles 74 and 75 .
13 It was only in Regulation No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries ( Official Journal 1986, L 378, p . 1 ), which entered into force on 1 January 1987, that the Council adopted, on the basis of Article 84(2 ) of the Treaty, the measures necessary to achieve freedom to provide services in maritime transport between Member States .
The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Agegate Ltd.
Date: 1989-12-14
16 Thus, the provisions of that regulation established a system of national fishing quotas . As emerges from the provisions of Regulation No 2057/82, in particular from Article 10(1 ) thereof, and from the provisions of Regulation No 4027/86, the Community legislature attaches the national quotas to the fishing vessels flying the flag of, or registered in, each Member State; only those vessels may fish against its quotas .
24 It follows from the foregoing that the aim of the quotas is to assure to each Member State a share of the Community' s total allowable catch, determined essentially on the basis of the catches from which traditional fishing activities, the local populations dependent on fisheries and related industries of that Member State benefited before the quota system was established .
36 The question whether a given relationship falls outside such an employment relationship must be answered in each case on the basis of all the factors and circumstances characterizing the arrangements between the parties, such as, for example, the sharing of the commercial risks of the business, the freedom for a person to choose his own working hours and to engage his own assistants . In any event, the sole fact that a person is paid a "share" and that his remuneration may be calculated on a collective basis is not of such a nature as to deprive that person of his status of worker .
39 On this point reference must be made to the judgment of 23 March 1983 in Case 77/82 Peskeloglou v Bundesanstalt fuer Arbeit ( 1983 ) ECR 1085 concerning the interpretation of the second subparagraph of Article 45(1 ) of the 1979 Act concerning the accession of the Hellenic Republic to the European Communities ( Official Journal 1979, L 291, p . 17 ), which is identical to the second subparagraph of Article 56(1 ) of the 1985 Act of Accession . It is clear from that judgment that that provision, being a derogation from the principle of the free movement of workers laid down in Article 48 of the EEC Treaty, must be interpreted restrictively and that consequently, whilst the old Member States and those which acceded to the Community are authorized to maintain existing restrictions, they may not in any circumstances during the transitional period make more stringent the conditions governing the taking-up of employment by their respective nationals by introducing new restrictive measures . The second subparagraph of Article 56(1 ) of the 1985 Act of Accession must be interpreted in the same way .
The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow Ltd.
Date: 1989-12-14
17 Thus, the provisions of that regulation established a system of national fishing quotas . As is clear from the provisions of Regulation No 2057/82, in particular Article 10(1 ) thereof, and from the provisions of Regulation No 4027/86, the Community legislature links the national quotas to the fishing vessels flying the flag of, or registered in, each Member State; only those vessels may fish against its quotas .
19 In this regard, Member States may allow fishing vessels to fish against their national quotas only if certain conditions are fulfilled with regard to, for example, the size, age or state of the vessel, its equipment, the number of fishermen on board, accommodation and mess facilities for the crew, sanitary arrangements, safety matters and so forth, in so far as those conditions are not governed exclusively by Community legislation .
23 It follows from the foregoing that the aim of the quotas is to assure to each Member State a share of the Community' s total allowable catch, determined essentially on the basis of the catches from which traditional fishing activities, the local populations dependent on fisheries and related industries of that Member State benefited before the quota system was established .
24 It should also be pointed out that the system of national quotas was adopted in order to enable the measures for the conservation of fishery resources provided for by Article 102 of the 1972 Act of Accession to be implemented in the shortest possible time . It thus constitutes a stage towards a Community fisheries policy designed to lead to the restructuring and adaptation of the fishing fleets to the fishery resources available . That quota system constitutes none the less a derogation from the general rule of equal conditions of access to fishery resources laid down in Article 2(1 ) of Regulation No 101/76 .
25 Consequently, the measures which the Member States may adopt when exercising the power conferred on them by Article 5(2 ) of Regulation No 170/83 with a view to excluding certain of the vessels flying their flag from sharing in the utilization of their national quota are justified only if they are suitable and necessary for attaining the aim of the quotas as set out above .
Theo Dammer v VZW Securex Kinderbijslagfonds and Rijksdienst voor Kinderbijslag der Werknemers.
Date: 1989-12-14
10 It follows from the wording of that provision that overlapping occurs not only when one person is entitled to two different family benefits at the same time, but also when two different persons - in this case two parents - are entitled to such benefits in respect of the same child .
12 Furthermore, the spirit of the provisions of Regulation No 1408/71 governing the overlapping of family benefits and the solutions therein provided for in the event of overlapping also demonstrate that the aim of the provision in question is to prevent not only the direct recipient of a family benefit, namely the worker, but also the indirect recipients thereof, that is to say the members of the worker' s family, from receiving two benefits of the same kind at the same time .
16 It is clear from the abovementioned provisions that under the Community rules prohibited overlapping is considered to occur when two parents work in two different Member States and are each entitled, in their State of employment, to family benefits for the same member of the family, and that problem is resolved by a rule determining priority, as between the two sets of national legislation concerned, in the event that that member of the family resides in one of the two States of employment . However, if the member of the family resides in a third Member State, the Community legislation provides no solution .
20 Since no guidance is to be found in the provisions of the regulation, consideration must therefore be given to the principles underlying Article 51 of the EEC Treaty, on which Regulation No 1408/71 is based .
21 According to the Court' s previous decisions, in particular its judgment of 21 October 1975 in Case 24/75 Petroni v ONPTS (( 1975 )) ECR 1149, paragraph 13, the aim of Articles 48 to 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the legislation of a single Member State . In paragraph 7 of its judgment of 9 July 1980 in Case 807/79 Gravina and Others v Landesversicherungsanstalt Schwaben (( 1980 )) ECR 2205, the Court accordingly concluded that the application of Community rules may not bring about a reduction in the benefits awarded by virtue of such legislation .
Società agricola fattoria alimentare SpA (SAFA) v Amministrazione delle finanze dello Stato.
Date: 1990-01-09
13 As the Court has already held, in particular in the aforementioned judgments, although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected . In order to reply to the questions raised, it is therefore necessary to examine whether those criteria were satisfied in the present case .
Regulation No 57/81
20 As to SAFA' s claim that the Court should as an ancillary matter give a preliminary ruling on the repayment of levies in pursuance of Article 13 of Council Regulation ( EEC ) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties ( Official Journal 1979, L 175, p . 1 ), it is sufficient to recall that, in view of the division of jurisdiction laid down by Article 177 of the Treaty, it is for the national court alone to determine the subject-matter of the questions which it wishes to refer to the Court . The Court cannot therefore, at the request of a party to the main proceedings, examine questions which have not been referred to it by the national court ( see in particular the judgment of 3 October 1985 in Case 311/84 CBEM v CLT and IPB (( 1985 )) ECR 3261 ).