larimo/cjeu-paragraph-retrieval huggingface dataset:
T. Port GmbH & Co. KG v Commission of the European Communities.
Date: 2003-05-08
17.  In accordance with Article 1(1) of that decision, the Agreement establishing the WTO and also the Agreements in Annexes 1, 2 and 3 to that Agreement, of which the 1994 GATT is one, have been approved on behalf of the European Community with regard to that portion of them which falls within the competence of the Community.
27.  It is settled case-law that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts.  Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (Case C-185/95 P   Baustahlgewebe   v   Commission   [1998] ECR I-8417, paragraph 24).  That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject as such to review by the Court of Justice (Case C-8/95 P   New Holland Ford   v   Commission   [1998] ECR I-3175, paragraph 26, and Joined Cases C-24/01 P and C-25/01 P   Glencore and Compagnie Continentale   v   Commission   [2002] ECR I-10119, paragraph 65).
30.  According to settled case-law recalled by the Court of First Instance in paragraph 42 of the contested judgment, the Community's non-contractual liability depends on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the Community institutions, the fact of damage and a causal link between the conduct of the institution and the damage complained of (Joined Cases C-258/90 and C-259/90   Pesquerias De Bermeo and Naviera Laida   v   Commission   [1992] ECR I-2901, paragraph 42).  The cumulative nature of those conditions means that if one of them is not satisfied, the Community cannot incur non-contractual liability (see, to that effect,   inter alia   Case C-257/98 P   Lucaccioni   v   Commission   [1999] ECR I-5251, paragraphs 63 and 64, and Case C-237/98 P   Dorsch Consult   v   Council and Commission   [2000] ECR I-4549, paragraph 54).
Commission of the European Communities v French Republic.
Date: 2003-05-08
25.  The Court has already held that the introduction and maintenance of reduced rates of VAT below the standard rate laid down in Article 12(3)(a) of the Sixth Directive are permissible only in so far as they are consistent with the principle of fiscal neutrality inherent in the common system of VAT which precludes treating similar goods, which are thus in competition with each other, differently for VAT purposes (Case C-481/98   Commission   v   France   [2001] ECR I-3369, paragraphs 21 and 22).
26.  The Commission has adduced no evidence to show that, in the present case, that principle would be infringed by the selective application of the reduced rate of VAT to one part only of the supply of gas and electricity.
27.  In any event, there is nothing in the text of Article 12(3)(b) of the Sixth Directive which requires that provision to be interpreted as requiring that the reduced rate can be charged only if it is applied to all supplies of natural gas and electricity. It is true that the French text of that provision uses the definite article   "aux"   before the term   "fournitures"  , but a comparison of the different language versions, some of which do not use the definite article, argues in favour of an interpretation that a selective application of the reduced rate cannot be excluded, provided that no risk of distortion of competition exists.
28.  Moreover, since the reduced rate is the exception, the restriction of its application to concrete and specific aspects, such as the standing charge conferring entitlement to a minimum quantity of electricity on the account holders, is consistent with the principle that exemptions or derogations must be interpreted restrictively.
30.  The requirement that the charging of a reduced rate must not give rise to any risk of distortion of competition will be considered in the context of the question concerning the procedure laid down by Article 12(3)(b) of the Sixth Directive.
The procedure laid down by Article 12(3)(b) of the Sixth Directive
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2003-05-13
38.  It must be recalled at the outset that Article 56(1) EC gives effect to free movement of capital between Member States and between Member States and third countries. To that end it provides, within the framework of the provisions of the chapter headed   "Capital and payments"  , that all restrictions on the movement of capital between Member States and between Member States and third countries are prohibited.
39.  Although the Treaty does not define the terms   "movements of capital"   and   "payments"  , it is settled case-law that Directive 88/361, together with the nomenclature annexed to it, may be used for the purposes of defining what constitutes a capital movement (Case C-222/97   Trummer and Mayer   [1999] ECR I-1661, paragraphs 20 and 21).
40.  Points I and III in the nomenclature set out in Annex I to Directive 88/361, and the explanatory notes appearing in that annex, indicate that direct investment in the form of participation in an undertaking by means of a shareholding or the acquisition of securities on the capital market constitute capital movements for the purposes of Article 56 EC.  The explanatory notes state that direct investment is characterised, in particular, by the possibility of participating effectively in the management of a company or in its control.
43.  That argument cannot be accepted. It is clear from paragraphs 44 and 40 of the judgments in   Commission   v   Portugal   and   Commission   v   France   respectively that the prohibition laid down in Article 56 EC goes beyond the mere elimination of unequal treatment, on grounds of nationality, as between operators on the financial markets.
47.  In this instance, although the relevant restrictions on investment operations apply without distinction to both residents and non-residents, it must none the less be held that they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market (see, also, the judgment of today's date in Case C-463/00   Commission   v   Spain   [2003] ECR I-4579, paragraph 61).
49.  Consequently, the rules at issue constitute a restriction on the movement of capital for the purposes of Article 56 EC.  Since the United Kingdom Government expressly stated that it did not wish to rely on any justification based on possible overriding requirements relating to the general interest, there is no need to examine whether the rules can be justified on that basis.
50.  It must therefore be held that, by maintaining in force the provisions limiting the possibility of acquiring voting shares in BAA as well as the procedure requiring consent to the disposal of the company's assets, to control of its subsidiaries and to winding-up, the United Kingdom has failed to fulfil its obligations under Article 56 EC.
Article 43 EC
Refinarias de Açúcar Reunidas SA (RAR) v Sociedade de Indústrias Agricolas Açoreanas SA (Sinaga).
Date: 2003-05-15
46.  With regard to the assessment of the facts set out in the order for reference, it must be noted that in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (see Case 36/79   Denkavit Futtermittel   [1979] ECR 3439, paragraph 12, Case C-235/95   Dumon  and   Froment   [1998] ECR I-4531, paragraph 25, and Joined Cases C-175/98 and C-177/98   Lirussi and Bizzaro   [1999] ECR I-6881, paragraph 37).
47.  The Court thus has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68   Salgoil   [1968] ECR 453, Case 51/74   Van der Hulst   [1975] ECR 79, paragraph 12, and Case C-320/88   Shipping and Forwarding Enterprise Safe   [1990] ECR I-285, paragraph 11, and   Lirussi and Bizzaro  , cited above, paragraph 38).
Athanasios Pitsiorlas v Council of the European Union and Banque centrale européenne.
Date: 2003-05-15
24.  However, in arriving at that conclusion, the Court of First Instance interpreted the concept of excusable error, as it has been developed in the case-law of the Court of Justice, in an excessively restrictive manner. According to settled case-law (see,   inter alia  ,   Bayer   v   Commission  , cited above, paragraph 26), full knowledge of the finality of a decision and of the time-limit for bringing an action under Article 230 EC does not, in itself, prevent an individual from pleading excusable error to justify his application being out of time since such an error may occur, in particular, when the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person.
32.  Whilst in the current state of the proceedings the Court is not in a position to give judgment on the substance of the application before the Court of First Instance, it does, however, possess all the information necessary for it to give final judgment on the plea of inadmissibility raised by the Council in the proceedings at first instance.
Commission of the European Communities v Kingdom of Spain.
Date: 2003-05-15
22.  It is sufficient to point out that, 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 and that a Member State cannot rely on provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period (Case C-392/01   Commission   v   Spain   [2002] ECR I-11111, paragraph 9).
26.  It is settled case-law that in proceedings under Article 226 EC for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled and to place before the Court the information needed to enable it to determine whether the obligation has not been fulfilled (see,   inter alia  , Case C-159/94   Commission   v   France   [1997] ECR I-5815, paragraph 10, and Case C-236/99   Commission   v   Italy   [2001] ECR I-4195, paragraph 27).
Commission of the European Communities v French Republic.
Date: 2003-05-15
21.  It need merely be observed with regard to that submission that, in accordance with settled case-law, a Member State may not plead provisions, practices or situations in its internal legal order to justify a failure to comply with the obligations and time-limits laid down in a directive (see,   inter alia  , Case C-286/01   Commission   v   France   [2002] ECR I-5463, paragraph 13).
22.  In those circumstances, the action brought by the Commission must be considered well founded since it is not disputed that on expiry of the period laid down in the reasoned opinion ─ a time-limit which is decisive when establishing whether a Member State has failed to fulfil its obligations (see,   inter alia  , Case C-173/01   Commission   v   Greece   [2002] ECR I-6129, paragraph 7) ─ the French Government had not adopted all the measures necessary for transposition of the Directive.
Commission of the European Communities v Federal Republic of Germany.
Date: 2003-05-22
32.  Since that provision constitutes an exception to the principle of free movement of goods, as laid down in Article 30 of the EC Treaty (now, after amendment, Article 28 EC) and implemented for PPE by Article 4(1) of the PPE Directive, it must be interpreted strictly (see, concerning the exceptions provided for by Article 36 of the EC Treaty (now, after amendment, Article 30 EC), Case 46/76   Bauhuis   [1977] ECR 5, paragraph 12, and, in general, Case 199/84   Migliorini and Fischl   [1985] ECR 3317, paragraph 14).
33.  In that regard, it is clear from the case-law of the Court that the Community legal order does not, in principle, aim to define concepts on the basis of one or more national legal systems unless there is express provision to that effect (Case 64/81   Corman   [1982] ECR 13, paragraph 8, and Case C-296/95   EMU Tabac and Others   [1998] ECR I-1605, paragraph 30).
44.  The Federal Republic of Germany cannot rely on Article 48(4) of the Treaty, either. While that provision excludes from the scope of the freedom of movement of workers employment in the public service which involves direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities (see Case 149/79   Commission   v   Belgium   [1980] ECR 3881, paragraph 10, and Case C-290/94   Commission   v   Greece   [1996] ECR I-3285, paragraph 2), it furnishes no material relating to the extent of a derogation contained in a directive whose objective is to facilitate the free movement of goods and which excludes only PPE specifically designed and manufactured for use by the armed forces or in the maintenance of law and order. That derogation clearly does not cover all PPE used by persons vested with powers of public authority or responsible for safeguarding the general interests of the State.
47.  With regard to the principle of subsidiarity, since the national provisions in question differ significantly from one Member State to another, they may constitute, as is noted in the fifth recital in the preamble to the PPE Directive, a barrier to trade with direct consequences for the creation and operation of the common market. The harmonisation of such divergent provisions may, by reason of its scope and effects, be undertaken only by the Community legislature (see, to that effect, Case C-491/01   British American Tobacco (Investments) and Imperial Tobacco   [2002] ECR I-11453, paragraphs 180 to 182).
French Republic v Commission of the European Communities.
Date: 2003-05-22
42.  On several occasions the Court has drawn attention to the reality and the seriousness of the risks associated with BSE and the appropriateness of interim protective measures justified on the ground of protection of human health in the light of that disease, whether in respect of measures adopted by the Commission (the order in Case C-180/96 R   United Kingdom   v   Commission   [1996] ECR I-3903, and the judgments in Case C-180/96   United Kingdom   v   Commission   [1998] ECR I-2265, and Case C-365/99   Portugal   v   Commission   [2001] ECR I-5645) or by a Member State (Case C-428/99   Van den Bor   [2002] ECR I-127, paragraph 40).
Commission of the European Communities v Kingdom of the Netherlands.
Date: 2003-05-22
20.  Article 7(1) of the Directive imposes on employers a principal obligation to designate one or more workers to carry out activities related to protection against and prevention of occupational risks. Article 7(3) provides for an obligation to enlist competent external persons or services. However, that obligation is merely subsidiary to that laid down in Article 7(1), since it arises only   "if such protective and preventive measures cannot be organised for lack of competent personnel in the undertaking and/or establishment"  .
21.  Article 7 therefore places the obligations imposed on employers in an order of precedence.
22.  That interpretation is supported by the wording of Article 11(2) of the Directive, which refers, under (b), to the designation of workers provided for in Article 7(1) and, under (d), to the enlistment, provided for in Article 7(3), of competent external services while adding, in respect of the latter reference only, the phrase   "where appropriate"  .
23.  In order to ensure full applicability of the Directive in a clear and precise manner, its transposition into Netherlands national law must reflect the order of precedence laid down in Article 7.
38.  As the title itself shows, the Directive is intended to introduce measures to encourage improvements in the safety and health of workers at work. Contrary to what the Netherlands Government claims, the aim of the Directive is not solely to improve the protection of workers against accidents at work and the prevention of occupational risks; it is also intended to introduce specific measures to organise that protection and prevention. It thus states a number of means regarded by the Community legislature as being suitable to facilitate achievement of the set purpose.
39.  The 11th and 12th recitals of the Directive show that its aims include a dialogue and balanced participation between employers and workers with a view to adopting the measures necessary for the protection of workers against accidents at work and occupational diseases.
54.  Second, as was explained in paragraphs 38 and 39 of the present judgment, the aim of the Directive is to promote balanced participation of employers and workers in activities related to protection against and prevention of occupational risks. It is therefore by giving precedence to the internal organisation of such activities that the best possible effectiveness of the Directive can be ensured.
55.  In the light of those findings, allowing employers to choose between internal organisation of such activities or the enlistment of external competent services does not contribute to ensuring the effectiveness of the Directive but constitutes a failure to fulfil the obligation to ensure full applicability of that directive.
Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2003-05-22
4.  The transposition of Article 7(8) of Directive 89/391 entails the adoption by the Member States of laws or regulations which comply with the requirements of that directive and which are brought to the attention of the undertakings concerned by appropriate means, so as to enable them to be aware of their obligations in the matter and the competent national authorities to check that those measures are complied with (Case C-49/00   Commission   v   Italy   [2001] ECR I-8575, paragraph 36).
Commission of the European Communities v Italian Republic.
Date: 2003-06-05
15.  It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion (see,   inter alia  ,  Case C-200/88   Commission   v   Greece   [1990] ECR I-4299, paragraph 13; and Case C-299/01   Commission   v   Luxembourg   [2002] ECR I-5899, paragraph 11). In accordance with the second paragraph of Article 226 EC, if a Member State has put a stop to the infringement before the end of that period, the Commission may no longer bring an action before the Court of Justice.
17.  It should be borne in mind that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission (see Case 293/85   Commission   v   Belgium   [1988] ECR 305, paragraph 13; and order in Case C-266/94   Commission   v   Spain   [1995] ECR I-1975, paragraph 16). The proper conduct of that procedure thus constitutes an essential guarantee required by the EC Treaty in order to protect the rights of the Member State concerned. It is only when that guarantee is observed that the contentious procedure before the Court can enable it to judge whether the Member State has in fact failed to fulfil the obligations which the Commission alleges it has breached (order in   Commission   v   Spain  , paragraphs 17 and 18). More specifically, the purpose of the letter of formal notice in the pre-litigation procedure is to delimit the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence.
Commission of the European Communities v Hellenic Republic.
Date: 2003-06-05
8.  However, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the legislative situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, for example, Case C-147/00   Commission   v   France   [2001] ECR I-2387, paragraph 26).
Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2003-06-12
30.  It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-103/00   Commission   v   Greece   [2002] ECR I-1147, paragraph 23, and Case C-323/01   Commission   v   Italy   [2002] ECR I-4711, paragraph 8).
32.  Also, according to settled case-law, in relation to the transposition of a directive into the legal order of a Member State, it is essential that the national legislation in question effectively ensures that the directive is fully applied, that the legal position under national law is sufficiently precise and clear and that individuals are made fully aware of their rights (Case C-365/93   Commission   v   Greece   [1995] ECR I-499, paragraph 9, and Case C-144/99   Commission   v   Netherlands   [2001] ECR I-3541, paragraph 17).
37.  In relation to the designation of the competent authority, even if the Member States are free to delegate powers to their domestic authorities as they consider fit and to implement directives by means of measures adopted by various authorities (see Joined Cases 227/85 to 230/85   Commission   v   Belgium   [1988] ECR 1, paragraph 9), the fact remains that individuals must be made fully aware of their rights.
Hellenic Republic v Commission of the European Communities.
Date: 2003-06-12
52.  In paragraph 101 of the judgment in   Spain   v   Commission  , cited above, the Court held that Article 3(4) of Regulation No 536/93 makes purchasers liable to pay interest, as from 1 September of each year, to the competent body in case of late payment of the additional levy and that Article 5(2) of that regulation makes Member States responsible for deducting interest paid from the applications for reimbursement of expenditure on milk and milk products submitted to the EAGGF.
54.  In paragraph 101 of the judgment in   Spain   v   Commission   the Court also held that the fact that certain sums due remain unpaid, or were paid belatedly, does not of itself constitute failure to fulfil obligations imposed on the Member States by Community law.
56.  It is true, as is made clear in paragraph 102 of the judgment in   Spain   v   Commission  , that the Commission may apply an adjustment where it is able to show that the EAGGF suffered a loss as a result of a negligent failure, attributable to the national authorities, to recover the disputed sums.