Category: European

Brenner and Noller v Dean Witter Reynolds (Judgment): ECJ 15 Sep 1994

Europe Convention on Jurisdiction and the Enforcement of Judgments – Jurisdiction over consumer contracts – Contract with a party not domiciled or having a branch, agency or other establishment in a Contracting State, out of whose operation the dispute arises – Jurisdiction under the Convention of the courts of the State in which the consumer is domiciled – Excluded.

Citations:

C-318/93, [1994] EUECJ C-318/93

Links:

Bailii

European, Consumer

Updated: 03 June 2022; Ref: scu.161155

Ortscheit v Eurim-Pharm: ECJ 10 Nov 1994

ECJ The national prohibition of advertising for medicinal products which despite the general requirement of authorization are not authorized in a country, but may be imported from another Member State of the European Community in response to an individual order if they have been lawfully put into circulation in that Member State, is, inasmuch as it affects only imported products, a measure having equivalent effect to a quantitative restriction within the meaning of Article 30 of the EEC Treaty.
That prohibition is however justified under Article 36 on grounds pertaining to the protection of the health and life of humans because it is necessary for the effectiveness of the national authorization scheme, which Member States are entitled to maintain in the absence of a procedure for Community authorization or mutual recognition of national authorizations.

Citations:

C-320/93, [1994] EUECJ C-320/93, [1994] ECR I-5243

Links:

Bailii

Statutes:

EEC Treaty 30 36

European, Media

Updated: 03 June 2022; Ref: scu.161157

Commission v Luxembourg C-313/93: ECJ 13 Apr 1994

(Judgment) Action against Member States for failure to fulfil obligations – Examination of grounds by the Court – Situation to be taken into consideration – Situation upon the expiry of the period prescribed by the reasoned opinion (EEC Treaty, Art. 1

Citations:

[1994] ECR I-1279, [1994] EUECJ C-313/93

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161150

Peterbroeck, Van Campenhout and Cie v Belgian State: ECJ 14 Dec 1995

It is a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensure respect for the relevant European law right: ‘For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.’ and ‘The case-law of the court in this area establishes a balance between, on the one hand, the need to respect that autonomy [of national courts] and, on the other hand, the need to ensure the effective protection of Community rights in the national courts. That is true both of the case-law on the subject of time-limits which I have set out above and of the decisions in Simmenthal and Factortame which are mentioned in the order for reference and are relied on by Peterbroeck, and which illustrate the court’s concern for the effective protection of Community rights.’

Citations:

C-312/93, [1995] EUECJ C-312/93, [1994] ECR I-4599, [1996] All ER (EC) 242, [1995] ECR I-4599, [1996] 1 CMLR 793

Links:

Bailii

Cited by:

Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – FA (Iraq) v Secretary of State for The Home Department CA 18-Jun-2010
The claimant had applied both for asylum and humanitarian protection. Both claims had been rejected, but he was given leave to stay in the UK for a further year. He now sought to appeal not only against the rejection of the asylum claim but also the . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161149

Federal Republic of Germany v Council of the European Union: ECJ 5 Oct 1994

Europa Bananas – Common organization of the markets – Import regime. In the procedure for the adoption of a regulation by the Council, the fact that the proposal from the Commission, amended in accordance with a political agreement accepted by the competent member on behalf of the Commission at a Council session and approved by the college of Commissioners, is not in writing is of no consequence.
Article 149(3) of the Treaty states that as long as the Council has not acted, the Commission may alter its proposal at any time during the procedures mentioned in paragraphs 1 and 2, and it does not require those amended proposals necessarily to be in writing. Such amended proposals, forming part of the Community legislative process, which is characterized by a certain flexibility, necessary for achieving a convergence of views between the institutions, are fundamentally different from the acts which are adopted by the Commission and are of direct concern to individuals, so that strict compliance with the formalities prescribed for the adoption of acts of direct concern to individuals cannot be required for their adoption.
Although under Article 190 of the Treaty the proposal from the Commission must be referred to by the Council in acts which it can adopt only on a proposal from the Commission, that article does not require citation of any amendment which may subsequently have been made to that proposal. The position would be different only if the Commission had withdrawn its proposal and replaced it by a fresh proposal.
Consultation of the European Parliament, where that is provided for, means that a fresh consultation should take place whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases where the amendments substantially correspond to the wishes of the Parliament itself.
In pursuing the objectives of the common agricultural policy, the Community institutions must secure the permanent harmonization made necessary by any conflicts between those objectives taken individually and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made.
Thus the Community legislature, which in matters concerning the common agricultural policy has a broad discretion corresponding to the political responsibilities given to it by Articles 40 and 43 of the Treaty, could thus, without infringing Article 39 of the Treaty, establish a common organization of the market in bananas intended to safeguard the income of the agricultural community concerned by guaranteeing the existing level of Community production and providing for suitable machinery for increasing its productivity, to stabilize the market by safeguarding Community production and regulating imports, and, by that machinery supplemented by the mechanism for increasing the import quota if necessary, to assure the availability of supplies.
A breach of Article 39 cannot result from the fact that in certain Member States the establishment of the common organization may have had the effect of increasing prices. The substitution for national arrangements characterized by considerable price differences of a common organization inevitably results in an adjustment of prices throughout the Community; the objective of ensuring reasonable prices for consumers must be considered at the level of the common market as a whole; and priority may be given temporarily to other objectives by the Community legislature.
The fact that Regulation No 404/93 on the common organization of the market in bananas pursues objectives of agricultural policy as well as a development policy in favour of the ACP States does not mean that it cannot be based on Article 43 of the Treaty alone.
First, Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty, even where other objectives are pursued at the same time.
Secondly, the creation of a common organization of the market requires, alongside the regulation of Community production, the establishment of an import regime to stabilize the markets and ensure sales of Community production if, as in the case of bananas, the internal and external aspects of the common policy cannot be separated, it being understood that the institutions, when making use of their rule-making powers, cannot disregard the international obligations entered into by the Community under the Lome Convention.
The first paragraph of Article 42 of the Treaty recognizes both the priority of the agricultural policy over the objectives of the Treaty in the field of competition and the power of the Council to decide to what extent the competition rules are to be applied in the agricultural sector.

Citations:

C-280/93, [1993] EUECJ C-280/93R

Links:

Bailii

Cited by:

Cited – Sony Computer Entertainment Europe Ltd v Customs and Excise ChD 27-Jul-2005
The appellants had imported Playstation computer games. They appealed refusal of a rebate of 50 million euros paid in VAT before a reclassification of the equipment so as to make it exempt from VAT.
Held: ‘The effect of the annulment of a . .
Lists of cited by and citing cases may be incomplete.

European, Customs and Excise

Updated: 03 June 2022; Ref: scu.161130

McLachlan v Caisse nationale d’assurance vieillesse des travailleurs salaries de la region d’Ile-de-France: ECJ 7 Jul 1994

ECJ Social security for migrant workers – Old-age and death insurance – Calculation of benefits – Worker not simultaneously satisfying the conditions laid down for the provision of benefits by all the legislation to which he has been subject – Legislation of the Member State whose conditions are satisfied taking periods of insurance completed under the legislation of another Member State into account solely for the purposes of the acquisition of the right to a pension and for determining the rate of that pension – Whether permissible – Discrimination on grounds of nationality – None.

Citations:

C-146/93, [1994] EUECJ C-146/93

Links:

Bailii

Statutes:

Council Regulation No 1408/71 3(1)

European

Updated: 03 June 2022; Ref: scu.161108

Directeur general des douanes and droits indirects v Superior France and Danzas: ECJ 12 Apr 1994

(Judgment) Common Customs Tariff – Tariff headings – Travel goods in PVC internally reinforced with fabric – Classification within Chapter 42 of the Combined Nomenclature as articles with outer surface of plastic – Criteria
For the purposes of the application of the subheadings in Chapter 42 of the Combined Nomenclature, travel goods in cellular plastic (PVC), internally reinforced with fabric, are to be regarded as goods with outer surface of plastic and not of textile material, if the textile material merely acts as reinforcement. Textile products which are untreated, unbleached, bleached or uniformly dyed, where applied to one surface only of plates, sheets and strips of cellular plastic, merely act as reinforcement.

Citations:

[1994] ECR I-1161, [1994] EUECJ C-150/93

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161110

Commission of the European Communities v Kingdom of Spain. (Member States): ECJ 23 Mar 1994

ECJ If a directive has not been transposed into national law by a Member State within the period allowed, a claim of failure to fulfil obligations in that respect must be regarded as well founded. Failure to transpose cannot be justified by the delay in implementing an earlier directive, linked to the one at issue, which ought itself to have been transposed before the end of the said period.

Citations:

C-268/93, [1994] EUECJ C-268/93

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161123

BP Supergas Anonimos Etairia Geniki Emporiki-Viomichaniki kai Antiprossopeion v Greece: ECJ 6 Jul 1995

Europa Under the procedure for a preliminary ruling provided for in Article 177 of the Treaty it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court of Justice. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action. Furthermore, the Court has no jurisdiction, in those proceedings, to rule on the compatibility of a national measure with Community law.
Articles 2, 11 and 17 of the Sixth Directive (77/388) must be interpreted as precluding national rules which, without an authorization having been obtained under Article 27 of that directive, make the importation of finished petroleum products subject to value added tax (‘VAT’) calculated on the basis of a basic price different from that provided for in Article 11 and which, by exempting traders in the petroleum sector from the obligation to submit returns, deprive them of the right to deduct the tax charged directly on transactions relating to inputs. The fundamental principle which underlies the VAT system, and which follows from Article 2 of the First and Sixth Directives, is that VAT applies to each transaction by way of production or distribution after deduction has been made of the VAT which has been levied directly on transactions relating to inputs. Moreover, as regards the supply of goods, Article 11 of the Sixth Directive, since its aim is in particular to ensure that VAT is applied at each marketing stage on the price or value of the goods at that stage, precludes the application of taxation arrangements under which the tax is determined, once only, on the price at the first marketing stage. The right of deduction provided for in Article 17 et seq. of the Sixth Directive, which forms an integral part of the VAT scheme, cannot be limited in principle and must be exercised immediately in respect of all the taxes charged on transactions relating to inputs, affects the level of the tax burden and must be applied in a similar manner in all the Member States, so that derogations are permitted only in the cases expressly provided for in the directive. The provisions of Article 11A(1) and B(1) and (2) and Article 17(1) and (2), which specify the conditions giving rise to the right to deduct and the extent of that right and do not leave the Member States any discretion as regards their implementation, confer rights on individuals which they may invoke before a national court in order to challenge national rules which are incompatible with those provisions.
Europa The special measures derogating from the Sixth Directive, as provided for in Article 27 of that directive, do not accord with Community law unless they remain within the limits of the objectives referred to in Article 27(1) and have also been notified to the Commission and impliedly or expressly authorized by the Council in the circumstances specified in paragraphs (1) to (4) of Article 27. In order to satisfy those conditions, it is not sufficient for a Member State merely to send to the Commission the whole of a draft law on the application of value added tax without giving any particular indication regarding the special arrangements provided for. Only a notification referring expressly to Article 27(2) of the directive enables the Commission and, if necessary, the Council to verify whether the derogating arrangements in question are within the scope of the objectives referred to in Article 27(1).
The provisions of the Sixth Directive, in particular Articles 13 to 17 thereof, must be interpreted as precluding a general exemption from VAT on all services in respect of the transport and storage of imported petroleum products. Article 14(1)(i), in conjunction with Article 11B(3)(b), of the directive provides an exemption solely for the transport costs incurred up to the first place of destination and, optionally, the costs in respect of transport to another known place of destination, and the general exemption also deprives a trader of the right to deduct VAT charged on services in respect of transport and storage after transport of the petroleum products to a second place of destination.
The interpretation which, in the exercise of the jurisdiction conferred upon it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the delivery of the judgment ruling on the request for interpretation, provided that in other respects the conditions under which an action relating to the application of that rule may be brought before the courts having jurisdiction are satisfied.
It follows more particularly that the right to obtain a refund of amounts charged by a Member State in breach of rules of Community law is the consequence and complement of the rights conferred on individuals by the Community provisions as interpreted by the Court. While it is true that such a refund may be sought only in the framework of the substantive and procedural conditions laid down by the various relevant national laws, those conditions and the procedural conditions and rules governing actions at law for protecting the rights which individuals derive from the direct effect of Community law may not be less favourable than those relating to similar, domestic actions, nor be framed in a way such as to render virtually impossible the exercise of rights conferred by Community law.
Accordingly, a taxable person may claim, with retroactive effect from the date on which the national legislation contrary to the Sixth Directive came into force, a refund of VAT paid without being due, by following the procedural rules laid down by the domestic legal system of the Member State concerned, provided that those rules are no less favourable than those satisfying the abovementioned requirements.

Citations:

C-62/93, [1995] EUECJ C-62/93, [1995] STC 805

Links:

Bailii

Cited by:

Cited – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 03 June 2022; Ref: scu.161085

TV10 v Commissariaat voor de Media (Judgment): ECJ 5 Oct 1994

Citations:

C-23/93, [1994] ECR I-4795, [1994] EUECJ C-23/93

Links:

Bailii

Cited by:

Cited – Regina v Minister of Agriculture Fisheries and Food, ex parte S P Anastasiou (Pissouri) Ltd and Others (2) HL 17-Dec-2001
The claimants asserted that citrus fruit exported from Turkish Cyprus via Turkey, and certified in Turkey, should not be imported. Imports required phytosanitary certificates conforming to European standards. They asserted that the regulations . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161058

IHT Internationale Heiztechnik v Ideal-Standard (Rec 1994,p I-2789) (Judgment): ECJ 22 Jun 1994

Citations:

C-9/93, [1994] EUECJ C-9/93, [1994] ECR I-2789

Links:

Bailii

Cited by:

Cited – Mastercigars Direct Ltd v Hunters and Frankau Ltd CA 8-Mar-2007
An allegation was made that Cuban cigars imported by the claimant infringed the trade marks of the respondents being either counterfeit or parallel imports, and were impounded. The claimant sought a declaration of non-infringement and their release, . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161047

AC-ATEL Electronics v Hauptzollamt Munchen-Mitte: ECJ 2 Jun 1994

ECJ 1. Preliminary rulings – Jurisdiction of the Court – Limits – Jurisdiction of the national court – Determination and assessment of the facts of the dispute – Need for a preliminary ruling and relevance of the questions raised -Assessment by the national court
(EEC Treaty, Art. 177)
2. Common commercial policy – Protection against dumping – Regulation imposing an anti-dumping duty – Products identified by reference to an outdated version of the Combined Nomenclature – Corrigendum substituting references – Scope of regulation unchanged – Validity
(Commission Regulation No 165/90)
1. Under Article 177 of the Treaty, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter is empowered to rule only on the interpretation or validity of Community provisions on the basis of the facts which the national court puts before it. It is not for the Court of Justice, but for the national court, to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver. It is, moreover, solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.
2. If the products in question remain the same, the fact that a regulation imposing anti-dumping duties has been made the subject of a corrigendum since its publication does not affect the validity of the final version if the sole purpose of the corrigendum is to replace identification of the products by reference to a version of the Combined Nomenclature no longer in force with references to codes under that nomenclature as since amended. Such a corrigendum merely corrects a clerical error without altering the scope of the regulation.

Judges:

J.C. Moitinho de Almeida, P

Citations:

[1994] ECR I-2305, C-30/93, [1994] EUECJ C-30/93

Links:

Bailii

Statutes:

EEC Treaty 177, Commission Regulation No 165/90

Cited by:

Cited – Revenue and Customs v Aimia Coalition Loyalty UK Ltd SC 13-Mar-2013
The company managed a card loyalty scheme for retailers. The Revenue appealed against a decision that the company could reclaim VAT input tax on the goods purchased on the customers redeeming their points. The ECJ had decided that the service . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161061

Empire Stores v Commissioners of Customs and Excise: ECJ 2 Jun 1994

A retail mail-order supplier, had run two promotions, a ‘self-introduction’ scheme and a ‘introduce a friend’ scheme. Under either scheme the introducer (once she or her friend had been approved, placed an order and paid for it) became entitled to receive, without payment, a household item (such as a toaster, a kettle or an iron) chosen from a list. These were not items in the Empire Stores catalogue and so they did not have a normal retail price.
Held: The fact that the items did not have a normal retail price was an essential distinction from Naturally Yours Cosmetics: ‘Where that value is not a sum of money agreed between the parties, it must, in order to be subjective, be the value which the recipient of the services constituting the consideration for the supply of goods attributes to the services which he is seeking to obtain and must correspond to the amount which he is prepared to spend for that purpose. Where, as here, the supply of goods is involved, that value can only be the price which the supplier has paid for the article which he is supplying without extra charge in consideration of the services in question’. Gifts to the introducers were vatable at the cost and not at the value to the donee even though consideration had been given.

Citations:

Times 08-Jul-1994, C-33/93, [1994] ECR – I 2329, [1994] EUECJ C-33/93

Links:

Bailii

Citing:

Distinguished – Naturally Yours Cosmetics Ltd v Commissioners of Customs and Excise ECJ 23-Nov-1988
A cosmetics wholesaler offered to a beauty consultant, acting as retailer, a pot of rejuvenating cream at the special price of andpound;1.50. The consultant was to give the cream to a chosen retail customer (referred to as a hostess) as a reward for . .

Cited by:

Cited – Lex Services plc v Her Majestys Commissioners of Customs and Excise HL 4-Dec-2003
When taking a car in part exchange, the company would initially offer the correct market value. If the customer wanted, the company would agree a higher price. When cars were returned, the company at first reclaimed the VAT on the re-purchase price, . .
Cited – Commissioners of Customs and Excise v Westmorland Motorway Services Ltd CA 5-Feb-1998
Westmorland ran motorway service stations. Its practice, known to coach drivers, was to provide, without payment, a packet of cigarettes and a self-service meal (chosen from its usual menu) to any coach driver who brought a coach with at least . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 03 June 2022; Ref: scu.161064

H J Glawe Spiel- und Unterhaltungsgerate Aufstellungsgesellschaft mbH and Co KG v Finanzamt Hamburg-Barmbek-Uhlenhorst: ECJ 5 May 1994

Europa The taxable amount in respect of a provision of services within the meaning of Article 11 A(1)(a) of the Sixth Directive 77/388 consists of the consideration actually received in return for the service provided. In the case of gaming machines offering a chance of winning (slot machines) which, pursuant to mandatory statutory requirements, are set in such a way that they pay out as winnings a certain percentage of the stakes inserted, the consideration actually received by the operator in return for making the machines available consists only of the proportion of the stakes which he can actually take for himself. Consequently, the aforementioned provision must be interpreted as meaning that the taxable amount in respect of such machines does not include the statutorily prescribed proportion of the total stakes inserted which corresponds to the winnings paid out to the players.
‘The consideration actually received by the operator in return for making the machines available consist only of the proportion of the stakes which he can actually take for himself.’ This was the commercial reality and was consistent with the aim of the Directive to tax the turnover which a trader ‘earns from his supplies of his goods and services’.

Judges:

Advocate General Jacob

Citations:

C-38/93, [1994] STC 543, [1994] EUECJ C-38/93

Links:

Bailii

Cited by:

Cited – Nell Gwynn House Maintenance Fund v Commissioners of Customs and Excise HL 15-Dec-1998
Trustees who managed a group of apartments argued that they did not themselves provide staff services to the tenants, but rather arranged for the staff to provide services to them.
Held: The contract providing cleaning and other services, by a . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 03 June 2022; Ref: scu.161067