larimo/cjeu-paragraph-retrieval huggingface dataset:
Commission of the European Communities v Kingdom of Spain.
Date: 2007-09-20
30. The system of remedies set up by the EC Treaty distinguishes between the remedies provided for in Articles 226 EC and 227 EC, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 230 EC and 232 EC, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision (see, inter alia, Case C-261/99 Commission v France [2001] ECR I-2537, paragraph 18, and Case C-404/00 Commission v Spain [2003] ECR I-6695, paragraph 40).
31. The position could be different only if the measure in question contained such particularly serious and manifest defects that it could be deemed non-existent ( Commission v France , paragraph 19, and Commission v Spain , paragraph 41).
32. That also applies in an action for failure to fulfil obligations based on the second subparagraph of Article 88(2) EC ( Commission v France , paragraph 20, and Commission v Spain , paragraph 42).
36. It must be borne in mind that the contested decisions are presumed to be lawful and that, despite the existence of the action for annulment, they remain binding in all respects on the Kingdom of Spain ( Commission v France , paragraph 26).
38. It follows from the above that the plea examined must be rejected as inadmissible.
2. The existence of the failure to fulfil obligations
a) The pleas relating to the obligations to abolish aid schemes in so far as they were still in force and to cancel outstanding aid
46. According to settled case-law, 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 (see, inter alia, Commission v France , paragraph 23, Commission v Spain , paragraph 45, and Case C-415/03 Commission v Greece [2005] ECR I-3875, paragraph 35).
54. The Court does not need to examine the form of order sought against the Kingdom of Spain for failing to notify the Commission of the measures implementing the decision, since the Kingdom of Spain did not in fact implement the decision within the prescribed period (see Case C-348/93 Commission v Italy [1995] ECR I-673, paragraph 31, and Case C‑207/05 Commission v Italy , paragraph 53).
Benetton Group SpA v G-Star International BV.
Date: 2007-09-20
25. Furthermore, it must be stated that Article 3(3) of the Directive does not refer, for the purposes of establishing the extent of the exception laid down therein, to the signs referred to in Article 3(1)(e).
26. Lastly, it must be borne in mind that in Philips  the Court has already held that:
– if a shape is refused registration pursuant to Article 3(1)(e) of the Directive, it can in no circumstances be registered by virtue of Article 3(3) (paragraph 57);
– a sign which is refused registration under Article 3(1)(e) can never acquire a distinctive character for the purposes of Articl e 3(3) by the use made of it (paragraph 75);
– Article 3(1)(e) concerns certain signs which are not such as to constitute trade marks and that it is a preliminary obstacle liable to prevent a sign consisting exclusively of the shape of a product from being registrable with the result that if any one of the criteria listed in Article 3(1)(e) is satisfied, a sign consisting exclusively of the shape of the product cannot be registered as a trade mark (paragraph 76).
27. It follows from this that, in a case such as that described by the national court, the use made by advertising campaigns of a sign referred to in Article 3(1)(e) of the Directive does not make it possible to apply Article 3(3) of the Directive to that sign.
Commission of the European Communities v Ireland.
Date: 2007-09-27
7. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C‑143/02 Commission  v Italy [2003] ECR I‑2877, paragraph 11).
Erhard Geuting v Direktor der Landwirtschaftskammer Nordrhein-Westfalen für den Bereich Landwirtschaft.
Date: 2007-10-04
30. In that regard, firstly, it must be noted that the Court has held that the integrated administration and control system put in place by Regulation No 3887/92 requires that the information supplied by an applicant for aid be complete and accurate from the outset in order that he may make a proper application for the grant of compensatory payments and avoid the imposition of penalties. When submitting an application for aid, a farmer is required to declare the animals which satisfy the various conditions laid down by the Community rules on the grant of such aid (see, to that effect, Case C‑63/00 Schilling and Nehring  [2002] ECR I‑4483, paragraphs 34 and 33).
44. The Community legislature has a wide discretion in the domain, corresponding to the political responsibilities given to it by Articles 34 EC to 37 EC. Consequently, judicial review by the Community Court must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (see, to that effect, Case C‑304/01 Spain  v Commission  [2004] ECR I‑7655, paragraph 23, and Case C‑310/04 Spain  v Council  [2006] ECR I‑7285, paragraph 96).
45. As to review of proportionality, it should be recalled that the principle of proportionality, which is one of the general principles of Community law, requires that acts adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where 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 (Case C‑189/01 Jippes and Others  [2001] ECR I‑5689, paragraph 81 and the case-law cited, and Spain  v Council , paragraph 97).
46. As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed by the Community legislature where the common agricultural policy is concerned, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (Case C‑344/04 IATA and ELFAA  [2006] ECR I‑403, paragraph 80, and Spain  v Council , paragraph 98).
47. What must be ascertained is therefore not whether the measure adopted by the legislature was the only measure possible or the best measure possible but whether it was manifestly inappropriate ( Spain  v Council , paragraph 99).
Commission of the European Communities v Italian Republic.
Date: 2007-10-04
33. Article 6(3) of Directive 92/43 provides that the obligation to carry out an appropriate assessment of the impact of a plan or project on a protected site subject is conditional on the plan or project in question being likely to have a significant effect on that site (Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 40).
35. In respect of the latter criterion, the Court stated, in paragraphs 46 to 48 of the same judgment, that, as is clear from the first sentence of Article 6(3) of the Directive in conjunction with the 10th recital in its preamble, the significant nature of the effect on a site of a plan or project must be linked to the site’s conservation objectives. Consequently, where a plan or project has an effect on that site but is not likely to undermine its conservation objectives, that plan or project cannot be considered likely to have a significant effect on the site. That risk must be assessed in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by that plan or project.
37. It is clear from established case-law that in such an action it is for the Commission to prove the existence of the alleged infringement. It is the Commission which must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (Case C-342/05 Commission  v Finland  [2005] ECR I-0000, paragraph 23 and case-law cited).
38. Moreover, the burden of proof borne by the Commission in an action for failure to fulfil obligations must be determined according to the types of obligations which directives impose on the Member States and therefore in the results which must be achieved by them (see, to that effect, Case C‑60/01 Commission  v France  [2002] ECR I‑5679, paragraph 25).
Matthias Kruck v Landkreis Potsdam-Mittelmark.
Date: 2007-10-04
34. Second, it must be pointed out that the aims of Regulation No 3887/92 are, as set out in the seventh and ninth recitals in its preamble, to monitor effectively compliance with the provisions on Community aid and to adopt provisions which prevent and penalise irregularities and fraud effectively (see, to that effect, Case C‑295/02 Gerken  [2004] ECR I‑6369, paragraph 41, and Case C‑45/05 Maatschap Schonewille‑Prins  [2007] ECR I‑0000, paragraph 63).
35. In order to attain those objectives Article 9(2) of that regulation lays down, in a case where the area declared in an ‘area’ aid application is greater than that determined on inspection, sanctions consisting of reductions of, or exclusions from, Community aid, which vary according to the gravity of the irregularity committed.
Commission of the European Communities v Hellenic Republic.
Date: 2007-10-11
29. In that regard, it is important to note that, as regards the award of public procurement contracts, the Court has held that an action for failure to fulfil obligations is inadmissible if, when the period prescribed in the reasoned opinion expired, the contract in question had already been completely performed (see Case C-362/90 Commission  v Italy  [1992] ECR I‑2353, paragraphs 11 and 13, and Case C‑394/02 Commission  v Greece  [2005] ECR I‑4713, paragraph 18).
33. In that connection, it is necessary to state that Article 5(1) of the framework agreement – a provision which also appears in the contracts at issue – provides that they are to enter into force on the day they are signed and expire when all the financial aid has been paid to the farmers who applied for it.
34. The Commission was not able to refute the Hellenic Republic’s argument, put forward by its representative at the hearing, that the payment of aid for the year 2001 was made in full in the course of the following year, in other words well before the expiry of the period prescribed by the reasoned opinion.
35. In the absence of indications from the Commission to the contrary, it must accordingly be found that, by the date that the period prescribed by the reasoned opinion expired, the framework agreement and the contracts at issue concerning the performance of that agreement for the year 2001 had already exhausted all their effects.
Lämmerzahl GmbH v Freie Hansestadt Bremen.
Date: 2007-10-11
50. As regards the first aspect of that question, it should be pointed out that Directive 89/665 does not preclude national legislation which provides that any application for review of a contracting authority’s decision must be commenced within a time-limit laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the time-limit in question is reasonable (Case C‑470/99 Universale-Bau and Others  [2002] ECR I‑11617, paragraph 79, and Case C‑327/00 Santex  [2003] ECR I‑1877, paragraph 50).
51. That position is based on the consideration that the full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements ( Universale-Bau , paragraph 75).
52. On the other hand, the national time-limits for bringing an action, including the detailed rules for their application, should not in themselves be such as to render virtually impossible or excessively difficult the exercise of any rights which the person concerned derives from Community law ( Santex , paragraph 55; see also, to that effect, Universale-Bau , paragraph 73).
55. A contract notice lacking any information as to the estimated value of the contract, followed by evasive conduct by the contracting authority in response to the questions of a potential tenderer such as that at issue in the main proceedings, must be considered, in view of the existence of a limitation period, as rendering excessively difficult the exercise by the tenderer concerned of the rights conferred on him by Community law (see, to that effect, Santex , paragraph 61).
62. When applying domestic law the national court must, as far as is at all possible, interpret it in a way which accords with the objective of Directive 89/665 (see, to that effect, Santex , paragraphs 62 and 63).
63. Where an interpretation in accordance with the objective of Directive 89/665 is not possible, the national court must refrain from applying provisions of national law which are at variance with that directive (Case 106/77 Simmenthal  [1978] ECR 629, paragraph 24, and Santex , paragraph 64). Article 1(1) of Directive 89/665 is unconditional and sufficiently precise to be relied on against a contracting authority (see, to that effect, Case C‑15/04 Koppensteiner  [2005] ECR I‑4855, paragraph 38).
Commission of the European Communities v Kingdom of Denmark.
Date: 2007-10-18
32. Member States are required to establish the Communities’ own resources as soon as their own customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties arising from a customs debt and determine the debtor, regardless of whether the criteria for the application of Article 220(2)(b) of the Customs Code are met and therefore whether or not it is possible to proceed with a subsequent entry in the accounts or post-clearance recovery of the customs duties in question. In those circumstances, a Member State which fails to establish the Communities’ own resources and to make the corresponding amount available to the Commission, without any of the conditions laid down in Article 17(2) of Regulation No 1552/89 being met, falls short of its obligations under Community law, in particular Articles 2 and 8 of Decision 94/728 ( Commission  v Denmark , paragraph 68).
35. In that regard, it is necessary, in any event, to recall that a failure to comply with an obligation imposed by a rule of Community law is itself sufficient to constitute a breach, and the fact that such a failure had no adverse effects is irrelevant (Case 95/77 Commission  v Netherlands  [1978] ECR 863, paragraph 13; Case C‑209/88 Commission  v Italy  [1990] ECR I‑4313, paragraph 14; and Case C‑333/99 Commission  v France  [2001] ECR I‑1025, paragraph 37).
36. As to Article 10 EC, also relied on by the Commission, there are no grounds for holding that there has been a failure to fulfil the general obligations contained in that article which is separate from the established failure to fulfil the more specific Community obligations by which the Kingdom of Denmark was bound under, inter alia, Articles 2 and 8 of Decision 94/728.
J. A. van der Steen v Inspecteur van de Belastingdienst Utrecht-Gooi/kantoor Utrecht.
Date: 2007-10-18
20. The second paragraph of Article 4(4) states that Member States, subject to the consultations provided for in Article 29 of the Sixth Directive, may treat as a single taxable person persons established in the territory of the country who, while legally independent, are closely bound to one another by financial, economic and organisational links.
21. In that regard, it must be found that, in a situation of the kind before the national court, the two persons concerned have a relationship of employer and employee.
22. First, while the company’s cleaning services were carried out exclusively by Mr van der Steen, contracts for the provision of cleaning services were entered into by the company, which paid the appellant a fixed monthly salary and annual holiday payment. The company deducted income tax and social security contributions from his salary. Therefore, Mr van der Steen depended on the company to determine his remuneration.
23. Secondly, Mr van der Steen, at the time of providing services in his capacity as employee, did not act in his own name, on his behalf and under his own responsibility, but on behalf and under the responsibility of the company.
24. Thirdly, the Court of Justice has held that with regard to remuneration, there is no relationship of employer and employee where the persons concerned bear the economic risk entailed in their activity (see Case C‑202/90 Ayuntamiento de Sevilla  [1991] ECR I‑4247, paragraph 13).
25. In this connection, the Gerechtshof te Amsterdam makes clear that Mr van der Steen did not bear any economic business risk in acting as manager and performing the work in the course of the company’s dealings with third parties.
26. It follows that an employee in the position of the appellant in the main proceedings could not be considered to be a taxable person within the meaning of Article 4(1) of the Sixth Directive.
31. Moreover, the reasoning adopted by the Court – which held, in paragraph 26 of Asscher , that a director of a company of which he is the sole shareholder does not carry out his activity in the context of a relationship of subordination, and so is to be treated not as a ‘worker’ within the meaning of Article 48 of the EC Treaty (now, after amendment, Article 39 EC) but as pursuing an activity as a self-employed person within the meaning of Article 52 of the EC Treaty (now, after amendment, Article 43 EC) – cannot be applied to the case at issue in the main proceedings, which is unrelated to the freedom of movement for persons and only concerns VAT and the definition of ‘taxable person’ in respect of VAT.
Avena Nordic Grain Oy.
Date: 2007-10-18
16. According to Article 5(4) of Regulation No 800/1999, the export declaration must include all the relevant information necessary to establish entitlement to the refund and to determine its amount (see, to that effect, Case C-309/04 Fleisch-Winter  [2005] ECR I-10349, paragraph 31, and Case C-27/05 Elfering Export  [2006] ECR I-3681, paragraph 26).
18. The overall effect of those provisions, even though they do not specifically state the form in which the export declaration must be lodged, is that, first, the declaration must be made in writing in order, in particular, for it to be possible to check whether the information given by the exporter corresponds to the goods presented for export and, second, it must be submitted before the goods have left the customs territory of the Community (see Case C-54/91 Commission  v Germany [1993] ECR I-3399, paragraph 22 and Case C-27/94 Netherlands  v Commission , paragraph 25).
19. Lodging an export declaration, which is capable of forming the legal basis of a refund ( Fleisch-Winter , paragraph 41), therefore constitutes an essential formality in the context of the cooperation established in that regard between the exporter and the competent customs authorities, which enables the latter to have available all the information necessary in order to carry out suitable physical checks on the goods concerned before loading, so as to exclude any risk of irregularities and abuse in the field of export refunds, in accordance with the sixty-third recital in the preamble to Regulation No 800/1999 (see, to that effect, Elfering Export , paragraph 31, and, as regards Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), Case C‑385/03 Käserei Champignon Hofmeister  [2005] ECR I-2997, paragraphs 27 and 28).
21. It is true that the exporter should not be able to adapt his request for refund according to the result of any check which might take place ( Käserei Champignon Hofmeister , paragraph 28).
22. Thus, it has already been held that the competent customs authorities cannot accept retrospectively an export declaration submitted after export has taken place for the purpose of obtaining refunds (see, to that effect, Case C-101/99 British Sugar  [2002] ECR I-205, paragraphs 68 and 73). Similarly, nor can they carry out checks on the basis of information communicated by fax rather than on the basis of the original of the payment declarations seeking pre-financing of refunds, if this results in a risk of unlawful payment of subsidies in that the trader might, after an inaccuracy had been found during a customs check made on the basis of that fax, lodge another declaration containing the correct information (Case C-278/98 Netherlands  v Commission , paragraph 70).