Category: European

Eurocermex v OHIM: ECJ 30 Jun 2005

Europa Appeal – Community trade mark – Article 7(1)(b) and (3) of Regulation (EC) No 40/94 – Three-dimensional shape of a long-neck bottle in the neck of which a slice of lemon has been plugged – Absolute ground for refusal – Distinctive character).

Citations:

C-286/04, [2005] EUECJ C-286/04

Links:

Bailii

Jurisdiction:

European

European, Intellectual Property

Updated: 03 June 2022; Ref: scu.228058

Loendersloot v Ballantine and Son and others: ECJ 11 Nov 1997

ECJ Article 36 of the EC Treaty – Trade mark rights – Relabelling of whisky bottles.

Judges:

Rodriguez Iglesias, P

Citations:

C-349/95, [1997] EUECJ C-349/95, [1997] ECR I-6227

Links:

Bailii

Cited by:

Cited – L’Oreal Sa and Others v Ebay International Ag and Others ChD 22-May-2009
The court was asked as to whether the on-line marketplace site defendant was liable for trade mark infringements by those advertising goods on the web-site.
Held: The ECJ had not yet clarified the law on accessory liability in trade mark . .
Cited – Oracle America Inc v M-Tech Data Ltd SC 27-Jun-2012
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 03 June 2022; Ref: scu.161715

Max Mara v Ufficio del registro di Reggio Emilia: ECJ 21 Dec 1995

ECJ In order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.
In this respect, the information provided and the questions raised in orders for reference must not only enable the Court to give helpful answers but also enable the Governments of the Member States and other interested parties to submit observations pursuant to Article 20 of the Statute of the Court.
It is the Court’ s duty to ensure that the opportunity to do so is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties.
Consequently, a request from a national court is manifestly inadmissible inasmuch as it does not enable the Court to give a useful interpretation of Community law where the order for reference does not contain specific questions addressed to the Court, allow the questions on which the national court wishes the Court to give a preliminary ruling to be discerned with any certainty, or furnish sufficient information to comply with the abovementioned requirements.

Judges:

GC Rodriguez Iglesias, P

Citations:

C-307/95, [1995] EUECJ C-307/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161686

Phytheron International v Bourdon: ECJ 20 Mar 1997

ECJ 1 Preliminary rulings – Jurisdiction of the Court – Limits – Presentation during the procedure before the Court of facts which differ from those described in the order for reference – Obligation of the Court to abide by the facts as stated in the order for reference
(EC Treaty, Art. 177; EC Statute of the Court of Justice, Art. 20)
2 Free movement of goods – Exceptions – Existence of directives for approximation – Effects – Trade mark protected by national law where the product is put on the market in a Member State by the trade mark owner or with his consent – Assessment in the light of Directive 89/104
(EC Treaty, Arts 30 and 36; Council Directive 89/104, Art. 7)
3 Acts of the institutions – Directives – Implementation by the Member States – Need to ensure the effectiveness of directives – Obligations of national courts
4 Approximation of laws – Trade marks – Directive 89/104 – Product from a non-member country put on the market in a Member State by the trade mark owner or with his consent – Lawful acquisition by an independent trader – Importation, without processing or changing the packaging, into another Member State – Trade mark rights in both Member States held by the same group – Opposition to importation by the trade mark owner – Not permissible, by reason of the principle of exhaustion of trade mark rights
(EC Treaty, Arts 30 and 36; Council Directive 89/104, Art. 7(1) and (2))
5 In answering a question referred to it for a preliminary ruling, the Court cannot base its ruling on facts mentioned in the course of the proceedings which differ from those in the order for reference. If it did so, it would have to address a question of principle which it has not yet had occasion to decide, on the basis of facts which required clarification to enable a proper answer to be given. Moreover, where the question referred raises an important point on the extent of the rights which a trade mark owner may derive from the mark, and the owner, not being a party to the main proceedings, cannot put his arguments to the Court, there are specific reasons why the Court should not depart from the facts as stated in the order for reference. In any event, to alter the substance of questions referred for a preliminary ruling would be incompatible with the Court’s function under Article 177 of the Treaty and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 20 of the Statute of the Court, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties.
6 Article 7 of the First Trade Mark Directive 89/104 is worded in general terms and comprehensively regulates the question of the exhaustion of trade mark rights for products traded in the Community, so that national rules on the point must be assessed in relation to that provision and not Articles 30 and 36 of the Treaty, it being understood, however, that, like any secondary legislation, the directive itself must be interpreted in the light of the Treaty rules, in this case those on the free movement of goods.
7 When applying national law, whether adopted before or after a directive, the national court which has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result which the directive has in view.
8 Article 7 of the First Trade Mark Directive 89/104, which is framed in terms corresponding to those used by the Court in judgments which, in interpreting Articles 30 and 36 of the Treaty, have recognized in Community law the principle of exhaustion of the rights conferred by a trade mark, must be interpreted as precluding application in one Member State of a national rule under which the owner of a trade mark may prevent importation of a product protected by the mark where
– the product has been manufactured in a non-member country,
– it has been imported into a second Member State by the owner of the mark or by another company in the same group as the owner of the mark,
– it has been lawfully acquired in the second Member State by an independent trader, who has exported it to the first Member State,
– it has not been processed and the packaging has not been changed, apart from the addition to the label of certain information to comply with the requirements of the legislation of the Member State of import, and
– the trade mark rights are held in both Member States by the same group.
First, the principle of exhaustion laid down in Article 7 applies where the owner of the trade mark in the State of import and the owner of the mark in the State of export, although different persons, are economically linked, for example as subsidiaries of the same group. Second, it is of no importance whether or not the product protected by the mark has been manufactured in a non-member country if it has in any event been lawfully put on the market, in the Member State from which it has been imported, by the owner of the mark or with the owner’s consent, including marketing by another company in the same group as the owner. Finally, the mere addition on the label of information of the kind described above cannot constitute a legitimate reason for the trade mark owner to oppose the further commercialization of the products within the meaning of Article 7(2) of the directive, provided that the label so altered does not omit important information or give inaccurate information and its presentation is not liable to damage the reputation of the trade mark and that of its owner.

Citations:

[1997] ECR I-1729, C-352/95, [1997] EUECJ C-352/95

Links:

Bailii

Cited by:

Cited – Oracle America Inc v M-Tech Data Ltd SC 27-Jun-2012
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 03 June 2022; Ref: scu.161717

The Queen v Minister for Agriculture, Fisheries and Food, ex parte: National Farmers’ Union and others: ECJ 17 Jul 1997

ECJ Judgment – Common agricultural policy – Regulation (EEC) No 3887/92 – Integrated administration and control system for certain Community aid schemes – Implementing rules – Interpretation and validity of penalties

Citations:

C-354/95, [1997] EUECJ C-354/95, [1997] ECR I-4559

Links:

Bailii

European, Agriculture

Updated: 03 June 2022; Ref: scu.161719

Kremzow v Republik Osterreich: ECJ 29 May 1997

ECJ (Judgment) Where national legislation is concerned with a situation which does not fall within the field of application of Community law, the Court cannot, in a reference for a preliminary ruling, give the interpretative guidance necessary for the national court to determine whether that national legislation is in conformity with the fundamental rights whose observance the Court ensures, such as those deriving in particular from the Convention for the Protection of Human Rights and Fundamental Freedoms.
Accordingly, provisions of national law not designed to secure compliance with rules of Community law are concerned with a situation which does not fall within the field of application of Community law even though a term of imprisonment imposed by virtue of those provisions may impede the person concerned from exercising his right to freedom of movement, since a purely hypothetical prospect of exercising that right does not establish a sufficient connection with Community law to justify the application of Community provisions.

Citations:

ECLI:EU:C:1997:254, [1997] EUECJ C-299/95, [1997] ECR I-2629, [1997] 3 CMLR 1289

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161680

Parfums Christian Dior v Evora BV: ECJ 4 Nov 1997

ECJ As a court common to more than one Member State which has the task of ensuring that the legal rules common to the three Benelux States are applied uniformly and reference to which is a step in the proceedings before the national courts leading to definitive interpretations of the common Benelux rules, the Benelux Court of Justice must be regarded as entitled to refer questions to the Court of Justice for a preliminary ruling. To allow such a court, faced with the task of interpreting Community rules in the performance of its function, to follow the procedure provided for by Article 177 of the Treaty serves the purpose of that provision, which is to ensure the uniform interpretation of Community law.
Where a question relating to the interpretation of Directive 89/104, approximating the laws of the Member States relating to trade marks, is raised in proceedings in one of the Benelux Member States concerning the interpretation of the Uniform Benelux Law on Trade Marks, a court against whose decisions there is no remedy under national law, as is the case with both the Benelux Court of Justice and the Hoge Raad der Nederlanden, must make a reference to the Court of Justice under the third paragraph of Article 177 of the Treaty. However, that obligation loses its purpose and is thus emptied of its substance when the question raised is substantially the same as a question which has already been the subject of a preliminary ruling in the same national proceedings.
On a proper interpretation of Articles 5 and 7 of Directive 89/104, when trade-marked goods have been put on the Community market by the proprietor of the trade mark or with his consent, a reseller, besides being free to resell those goods, is also free to make use of the trade mark in order to bring to the public’s attention the further commercialization of those goods. If the right to make use of a trade mark in order to attract attention to further commercialization were not exhausted in the same way as the right of resale, the latter would be made considerably more difficult and the purpose of the `exhaustion of rights’ rule laid down in Article 7 would thus be undermined.
The proprietor of a trade mark may not rely on Article 7(2) of Directive 89/104 to oppose the use of the trade mark by a reseller who habitually markets articles of the same kind, but not necessarily of the same quality, as the trade-marked goods, in ways customary in the reseller’s sector of trade, for the purpose of bringing to the public’s attention the further commercialization of those goods, unless it is established that, having regard to the specific circumstances of the case, the use of the trade mark for this purpose seriously damages the reputation of the trade mark.
A balance must be struck between the legitimate interest of the proprietor of the trade mark in being protected against resellers using his trade mark for advertising in a manner which could damage the reputation of the trade mark and the reseller’s legitimate interest in being able to resell the goods in question by using advertising methods which are customary in his sector of trade. In the case of prestigious, luxury goods, the reseller must not act unfairly in relation to the legitimate interests of the proprietor of the trade mark.
On a proper interpretation of Articles 30 and 36 of the Treaty, the proprietor of a trade mark or holder of copyright may not oppose their use by a reseller who habitually markets articles of the same kind, but not necessarily of the same quality, as the protected goods, in ways customary in the reseller’s sector of trade, for the purpose of bringing to the public’s attention the further commercialization of those goods, unless it is established that, having regard to the specific circumstances of the case, the use of those goods for that purpose seriously damages their reputation.
Dior owned registered trade marks for certain perfumes, which it sold at the top end of the market. Evora owned a chain of chemist’s shops in which they sold Dior products. The products in question were parallel imports, but it was not suggested that they had been unlawfully acquired. Evora advertised some of these products as part of a Christmas promotion. During the promotion it depicted in advertising leaflets the packaging and bottles of some of them. Each depiction of the packaging and bottles related clearly and directly to the goods offered for sale and the advertising was carried out in a manner customary to retailers in this market sector. Dior complained at the form of advertising, because it did not conform to the luxurious and prestige image that Dior wanted to present; and brought proceedings for trade mark infringement.
Held: The complaint was justified. Dior was protecting not the guarantee of trade origin (because the goods sold were the genuine goods) but its image. Protection of the image must, therefore, have been part of the rights conferred by registration of the mark.

Citations:

C-337/95, [1997] EUECJ C-337/95, [1997] ECR I-1603

Links:

Bailii

Cited by:

Cited – L’Oreal Sa and others v Bellure NV and others ChD 4-Oct-2006
The claimant alleged that the defendants had been importing copies of their perfumes. The products were not counterfeits, but ‘smell-alikes’. The defendants’ packaging and naming was used to suggest which perfume it resembled.
Held: The . .
Cited – L’Oreal Sa and Others v Ebay International Ag and Others ChD 22-May-2009
The court was asked as to whether the on-line marketplace site defendant was liable for trade mark infringements by those advertising goods on the web-site.
Held: The ECJ had not yet clarified the law on accessory liability in trade mark . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 03 June 2022; Ref: scu.161707

Blasi v Finanzamt Munchen: ECJ 12 Feb 1998

ECJ Article 13.B(b)(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes may be construed as meaning that the provision of short-term accommodation for guests is taxable, as constituting the provision of accommodation in sectors with a function similar to that of the hotel sector. In that regard, Article 13.B(b)(1) does not preclude taxation in respect of letting agreements concluded for a period of less than six months, if that duration is deemed to reflect the parties’ intention. It is, however, for the national court to determine whether, in a case before it, certain factors (such as the automatic renewal of the letting agreement) suggest that the duration stated in the letting agreement does not reflect the parties’ true intention, in which case the actual total duration of the accommodation, rather than that specified in the letting agreement, would have to be taken into consideration. A distinction drawn by Member States, who enjoy a margin of discretion in this regard, between accommodation in the hotel sector and the letting of dwelling accommodation on the basis of its duration constitutes an appropriate criterion of distinction, since one of the ways in which hotel accommodation specifically differs from the letting of dwelling accommodation is the duration of the stay, and the use to this end of the criterion of the provision of short-term accommodation, being defined as less than six months, appears to be a reasonable means by which to ensure that the transactions of taxable persons whose business is similar to the essential function performed by a hotel, namely the provision of temporary accommodation on a commercial basis, are subject to tax.

Citations:

C-346/95, [1998] ECR 1-481, [1998] EUECJ C-346/95

Links:

Bailii

Cited by:

Cited – Colaingrove Limited v The Commissioners for Customs and Excise ChD 16-Apr-2003
The Directive exempted from a charge to VAT for letting of imoveable property. The taxpayer challenged the requirement to charge to VAT his business of leasing pitches for caravans.
Held: The directive allowed member states to derogate from . .
Cited – Colaingrove Ltd v the Commissioners of Customs and Excise CA 19-Feb-2004
The taxpayer licensed static caravans on seasonal pitches on its land. They claimed exemption from charging VAT on the basis that they were residential lettings exempt under European legislation.
Held: The appeal failed. The legislation . .
Cited – Belgian State v Temco Europe ECJ 18-Nov-2004
Where the substance of a transaction was merely that premises were made available under a licence for occupation, rather than for the provision of services, a licence to occupy premises could be treated as a letting for the purpose of the Sixth . .
Lists of cited by and citing cases may be incomplete.

European, VAT, Landlord and Tenant

Updated: 03 June 2022; Ref: scu.161713

Farrell v Long (Judgment): ECJ 20 Mar 1997

ECJ 1 Convention on Jurisdiction and the Enforcement of Judgments – Protocol on the interpretation of the Convention by the Court of Justice – Preliminary rulings – Jurisdiction of the Court – Limits
(Convention of 27 September 1968; Protocol of 3 June 1971)
2 Convention on Jurisdiction and the Enforcement of Judgments – Rules on jurisdiction – Autonomous interpretation – Special jurisdiction – Jurisdiction in matters relating to maintenance – Maintenance creditor – Definition
(Convention of 27 September 1968, Art. 5(2))
3 In the light of the division of responsibilities in the preliminary ruling procedure laid down by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, it is solely for the national court before which the dispute has been brought, and which must assume the 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.
4 The terms of the Convention must, in principle, be interpreted autonomously. Such autonomous interpretation is alone capable of ensuring uniform application of the Convention, the objectives of which include unification of the rules on jurisdiction of the Contracting States, so as to avoid as far as possible multiplication of the bases of jurisdiction in relation to one and the same legal relationship, and reinforcement of the legal protection available to persons established in the Community by allowing both the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued.
Those considerations also apply to the term `maintenance creditor’ in the first limb of Article 5(2) of the Convention, which must be interpreted as covering any person applying for maintenance, including a person bringing a maintenance action for the first time, without any distinction being drawn between those already recognized and those not yet recognized as entitled to maintenance.

Citations:

C-295/95, [1997] EUECJ C-295/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161676

Coen v Belgian State: ECJ 23 Jan 1997

ECJ (Judgment) Officials – Actions – Time-limits – Mandatory – Caused to run afresh by a judgment given by a court of a Member State – Not possible
(EC Treaty, Art. 179; Staff Regulations, Arts 90 and 91)
The time-limits prescribed in Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain.
Consequently, Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are to be interpreted as meaning that the periods which those provisions prescribe for challenging a decision of the appointing authority of one of the Community institutions cannot be caused to run afresh by a judgment given by a court of a Member State finding an act of that State unlawful, where the act in question may have influenced the institution’s decision which is to be challenged.

Citations:

C-246/95, [1997] EUECJ C-246/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161638

Finanzamt Augsburg-Stadt v Marktgemeinde Welden: ECJ 6 Feb 1997

ECJ (Judgment) Tax provisions – Harmonization of laws – Turnover taxes – Common system of value added tax – Taxable persons – Bodies governed by public law – Activities in the exercise of public authority not taxable – Definition – Option for Member States to include activities exempted by virtue of Article 13 of the Sixth Directive, irrespective of the manner of their performance
(Council Directive 77/388, Art. 4(5), fourth subpara.)
The fourth subparagraph of Article 4(5) of the Sixth Directive 77/388 on the harmonization of the laws of the Member States relating to turnover taxes must be interpreted as permitting Member States to consider that the activities listed in Article 13 of the directive are carried out by bodies governed by publi

Citations:

C-247/95, [1997] EUECJ C-247/95

Links:

Bailii

European, VAT

Updated: 03 June 2022; Ref: scu.161639

Spain v Commission: ECJ 15 Apr 1997

ECJ (Judgment) State aid – Examination by the Commission – Establishment of a framework on aid in an economic sector – Commission decision prolonging, with retroactive effect, the validity of the Community framework on State aid in an economic sector after its expiry – Obligation to obtain the agreement of the Member States
(EC Treaty, Art. 93(1))
In order to prolong, with retroactive effect to the date of its expiry, the Community framework on State aid to the motor vehicle industry, adopted on the basis of Article 93(1) of the Treaty, the Commission is required to obtain the agreement of the Member States.
Without any prolongation, the framework ceases to exist on the date on which it is set to expire, so that a decision to prolong it, adopted after expiry of the period of validity of the decision which it prolongs constitutes a modification of the existing legal situation and must be adopted according to the same procedure as that required for the adoption of the decision which established the original framework or of a decision making modifications to it.

Citations:

C-292/95, [1997] EUECJ C-292/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161673

Commission v Germany: ECJ 12 Dec 1996

ECJ (Judgment) 1 Approximation of laws – Quality of fresh waters needing protection or improvement in order to support fish life and quality required of shellfish waters – Directives 78/659 and 79/923 – Need for exact transposition by the Member States
(Council Directives 78/659 and 79/923)
2 Member States – Obligations – Implementation of directives – Failure to implement – Justification – Not permissible
(EC Treaty, Art. 169)
3 Approximation of laws – Quality of fresh waters needing protection or improvement in order to support fish life and quality required of shellfish waters – Directives 78/659 and 79/923 – Obligation to establish specific programmes in order to reduce pollution
(Council Directives 78/659, Art. 5, and 79/923, Art. 5)
4 Directives 78/659 and 79/923 seek to protect human health through the monitoring of the quality of waters which support, or could support, fish suitable for human consumption or shellfish directly edible by man. This objective implies that in all cases where non-implementation of the measures required could endanger human health those concerned must be in a position to rely on mandatory rules in order to be able to assert their rights. Correct transposition therefore requires the adoption of measures which are indisputably binding.
5 A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive.
6 It follows clearly from the wording of Article 5 of Directives 78/659 and 79/923 as well as from the detailed arrangements for monitoring water quality laid down by those directives that Member States have an obligation to establish specific programmes in order to reduce pollution of fresh waters and shellfish waters within five and six years respectively.
Neither, with regard to Directive 78/659, general water-purification programmes designed to reduce water pollution caused by effluent nor, with regard to Directive 79/923, the finding, through the taking of samples, that shellfish waters meet the requirements of that directive can exempt a Member State from the obligation to establish specific programmes in accordance with Article 5 of those directives.

Citations:

C-298/95, [1996] EUECJ C-298/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161679

Commission v NTN Corporation and Koyo Seiko: ECJ 10 Feb 1998

(Judgment) Appeal – Dumping – Ball bearings originating in Japan – Interpretation

Citations:

C-245/95, [1998] EUECJ C-245/95P

Links:

Bailii

Citing:

Opinion – Commission v NTN Corporation and Koyo Seiko ECJ 14-Feb-1996
ECJ 1. Under Article 37 of the Statute of the Court of Justice, any person establishing an interest in the result of a case submitted to the Court may intervene in that case before the Court, and submissions made . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161634

Francesco Benincasa v Dentalkit Srl: ECJ 3 Jul 1997

A contract which forms a part of the customer’s arrangements for pursuing his trade or profession is not a consumer contract and a choice of jurisdiction clause in a distribution agreement was valid.
Europa In the context of the specific regime established by Article 13 et seq. of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, only contracts concluded for the purpose of satisfying an individual’s own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically. On the other hand, the specific protection sought to be afforded by those provisions is unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character. It follows that the regime in question applies solely to contracts concluded outside and independently of any trade or professional activity or purpose, whether present or future, so that a plaintiff who has concluded a contract with a view to pursuing a trade or profession, not at the present time, but in the future may not be regarded as a consumer within the meaning of the first paragraph of Article 13 and the first paragraph of Article 14 of the Convention.
4 Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments and civil and commercial matters sets out to designate, clearly and precisely, a court in a Contracting State which is to have exclusive jurisdiction in accordance with the consensus formed between the parties, which is to be expressed in accordance with the strict requirements as to form laid down therein. The legal certainty which that provision seeks to secure could easily be jeopardized if one party to the contract could frustrate that rule simply by claiming that the whole of the contract which contained the clause was void on grounds derived from the applicable substantive law. It follows that the court of a Contracting State which is designated in a jurisdiction clause validly concluded under the first paragraph of Article 17 also has exclusive jurisdiction where the action seeks in particular a declaration that the contract containing that clause is void. Furthermore, it is for the national court to determine which disputes fall within the scope of the clause conferring jurisdiction invoked before it and, consequently, to determine whether that clause also covers any dispute relating to the validity of the contract containing it.

Citations:

Times 13-Oct-1997, C-269/95, [1997] EUECJ C-269/95, [1997] ECR 1-3767

Links:

Bailii

Statutes:

Brussels Convention

Cited by:

Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Lists of cited by and citing cases may be incomplete.

Consumer, European

Updated: 03 June 2022; Ref: scu.161658

Odigitria v Council and Commission: ECJ 28 Nov 1996

ECJ (Order)
1. Under Article 168a of the Treaty, an appeal is confined to points of law and this limitation is further embodied in the first paragraph of Article 51 of the Statute of the Court of Justice. Thus, an appeal may rely only on grounds relating to infringements of rules of law, to the exclusion of any appraisal of facts, and is therefore admissible only in so far as the decision of the Court of First Instance is claimed to be incompatible with rules of law the observance of which it had to ensure.
2. It follows from Article 168a of the Treaty, Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice, read in combination, that an appeal must indicate precisely which elements of the contested judgment are challenged, and also the legal arguments which specifically support the appeal.
This requirement is not satisfied by pleas in law which are confined to repeating or reproducing word for word the arguments previously submitted to the Court of First Instance, without containing any legal argument in support of the form of order sought in the appeal. In reality, such pleas merely seek to obtain a re-examination of the application and the reply submitted to the Court of First Instance, which is outside the jurisdiction of the Court of Justice.

Citations:

C-293/95, [1996] EUECJ C-293/95P

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161674

Girish Ojha v Commission: ECJ 12 Nov 1996

ECJ The reasons given for a decision adversely affecting an official are sufficient if the measure was adopted in circumstances known to the official concerned which enable him to understand its scope. That is the case where a reassignment decision in the interests of the service has been preceded by a letter and by discussions, in which the superiors of the person concerned have explained to him the situation and the reasons for the proposed reassignment, and where the official has had the opportunity to put forward his arguments against the decision informing him that he had to take the necessary steps to prepare to move.
The Community institutions have a wide discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided the staff are assigned in conformity with the principle that the post to which an official is assigned should correspond to his grade.
Where they cause tensions prejudicial to the proper functioning of the service, internal relationship difficulties may justify the transfer of an official in the interests of the service. Such a measure may even be taken irrespective of the question of responsibility for the incidents in question.
That rule applies a fortiori in the sphere of the external relations of a department, especially where it is entrusted with diplomatic tasks. The essential element of diplomatic functions is to prevent tensions from arising and to smooth out any which do. Such functions require the absolute confidence of those involved. Once that is shaken, for whatever reason, the official in question is no longer able to carry out the functions. So that the criticisms made against him do not extend to the whole of the department concerned, sound administration requires that the institution should distance him from the situation as soon as possible.
If the grounds of a judgment of the Court of First Instance reveal an infringement of Community law, but its operative part appears to be well founded on other legal grounds, the appeal must be dismissed.
Since a decision to transfer or reassign an official may be taken on the basis of the mere existence of complaints, where the interests of the service so require, the institution cannot be impugned for adopting such a measure without first opening an enquiry in order to determine whether those complaints are well founded. In such a context, any non-performance of the duty to provide assistance under Article 24 of the Staff Regulations can only lead to the annulment of the decision refusing the assistance requested and, in some cases, may constitute maladministration for which the Community may be liable.
A decision by the appointing authority concerning the administrative status and career of an official may not be based on matters concerning his conduct which are not included in his personal file and have not been communicated to him.
A decision to redeploy an official necessarily affects his administrative status, since it alters the place and the conditions for the performance of his duties and also their nature. It may also affect his career by influencing his future prospects, since some functions, whilst being equally classified with others, lead more readily to promotion by reason of the nature of the responsibilities exercised.
Therefore, by holding, on the one hand, that the purpose of Article 26 of the Staff Regulations is to ensure compliance with the official’ s rights of defence by preventing decisions by the appointing authority which affect his administrative status and career from being based on facts concerning his conduct which are not mentioned in his personal file, and at the same time holding that the contested reassignment decision did not affect either the official’ s administrative status or his career, the Court of First Instance failed to uphold Article 26 of the Staff Regulations. More particularly, by allowing documents not communicated to the official and relating to his conduct in the service to be used against him, the Court of First Instance failed to uphold the second paragraph of Article 26 of the Staff Regulations.
Infringement of Article 26 of the Staff Regulations does not entail the annulment of a decision by the appointing authority affecting an official’ s administrative status and career unless it is established that the documents concerning his conduct not placed on his personal file and not communicated to him could have had a decisive influence on the decision.
The mere fact that documents were not placed on an official’ s personal file is not enough to justify annulment of a measure adversely affecting him if they were in fact brought to his knowledge. It is apparent from the second paragraph of Article 26 of the Staff Regulations that the prohibition on using against an official documents concerning his ability, efficiency and conduct applies only to documents which were not previously communicated to him. It does not cover documents which, although brought to his knowledge, have not yet been placed on his personal file.

Citations:

C-294/95, [1996] EUECJ C-294/95P

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161675

Commission v France: ECJ 9 Dec 1997

ECJ (Judgment) The Commission said France had failed to fulfil its obligations under the common organisation of the markets in agricultural, products and under Article 30, in conjunction with Article 5, of the EC Treaty. There had been for more than a decade violent acts committed by individuals and by protest movements of French farmers directly against agricultural products from other Member States. Lorries were damaged, their loads destroyed, shops selling the goods were threatened and the goods damaged. There was ‘a systematic campaign to restrict the supply of agricultural products from other Member States’. France had failed to take adequate or proportionate measures to deter the perpetrators of such offences. France replied that it had condemned the acts, brought criminal prosecutions and monitored what was happening.
Held: ‘it is a fact that, year after year, serious incidents have gravely jeopardised trade in agricultural products in France’. Some incidents went on for several hours and only a very small number of the participants had been prosecuted. Article 30 ‘also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State. . . . Article 30 therefore requires the Member States. . . . when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory’. France had ‘manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism which jeopardise the free movement on its territory’ of agricultural products from other Members States. Franve had failed in its Treaty obligations.
Europa Free movement of goods – Agricultural products – Trade barriers resulting from actions by private individuals – Obligations of the Member States.

Citations:

C-265/95, [1997] EUECJ C-265/95

Links:

Bailii

Cited by:

Cited – Regina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
Lists of cited by and citing cases may be incomplete.

European, Agriculture

Updated: 03 June 2022; Ref: scu.161655

Sabel BV v Puma AG, Rudolf Dassler Sport: ECJ 11 Nov 1997

The test of whether a sign is confusing is how the use of the sign would be perceived by the average consumer of the type of goods in question. ‘The likelihood of confusion must therefore be appreciated globally, taking into account all factors relevant to the circumstances of the case. That global appreciation of the visual, aural or conceptual similarity or the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components . . The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.’ (A point noted by the Hearing Officer as I have said). ‘In that perspective, the more distinctive the earlier mark, the greater will be the likelihood of confusion. It is therefore not impossible that the conceptual similarity resulting from the fact that two marks use images with analogous semantic content may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public.’
The court set out three possible links between a mark and a sign: ‘(1) where the public confuses the sign and the mark in question (likelihood of direct confusion); (2) where the public makes a connection between the proprietors of the sign and those of the mark and confuses them (likelihood of indirect confusion or association); (3) where the public considers the sign to be similar to the mark and perception of the sign calls to mind the memory of the mark, although the two are not confused (likelihood of association in the strict sense).’

Citations:

[1997] ECR I-6191, C-251/95, [1998] RPC 199, [1997] EUECJ C-251/95

Links:

Bailii

Cited by:

Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Associated Newspapers Limited, Daily Mail and General Trust Plc v Express Newspapers (an Unlimited Company, Incorrectly Sued As Express Newspapers Limited) ChD 11-Jun-2003
The claimants sought to prevent the respondents from starting an evening newspaper entitled ‘THE MAIL’ as an infringement of their registered mark, and as passing off. In turn the defendant challenged the validity of the mark.
Held: The word . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs Com Ltd CA 3-Mar-2004
The claimant alleged trade mark infringement by the respondents by the use of a mark in a pop-up advert.
Held: The own-name defence to trade mark infringement is limited. Some confusion may be allowed if overall the competition was not unfair . .
Cited – Mastercard International Incorporated v Hitachi Credit (Uk) Plc ChD 8-Jul-2004
The claimants challenged award of a trade mark saying they were owners of many marks incorporating the word ‘Master’ associated with credit, and the applicants mark was too similar to its own.
Held: Applying Davidoff, the words can also be . .
Cited – Marks and Spencer Plc, Ladbrokes Plc, J Sainsbury Plc, Virgin Enterprises Ltd, British Telecommunications Plc, Telecom Securior Cellular Radio Ltd v One In A Million and Others PatC 28-Nov-1997
The registration of internet domain names which would infringe trade marks and potentially facilitate passing off can be protected summarily by quia timet injunction. The defendants were dealers in domain names and the use of a trade mark in the . .
Cited – L’Oreal Sa and others v Bellure NV and others ChD 4-Oct-2006
The claimant alleged that the defendants had been importing copies of their perfumes. The products were not counterfeits, but ‘smell-alikes’. The defendants’ packaging and naming was used to suggest which perfume it resembled.
Held: The . .
Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Cited – Nude Brands Ltd v Stella McCartney Ltd and Others ChD 20-Aug-2009
The claimant sought an injunction against the defendants to restrain an alleged trade mark infringement in respect of the use of the mark ‘NUDE’ by the proposed product ‘STELLANUDE’.
Held: Despite the differences, it was ‘arguable that the . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 03 June 2022; Ref: scu.161642

Futura Participations and Singer v Administration des contributions: ECJ 15 May 1997

ECJ (Judgment) 1 Freedom of movement for persons – Freedom of establishment – Equal treatment – Direct taxation – Revenue tax – Legislation of a Member State making the carrying forward of losses incurred by a non-resident taxpayer subject to the existence of an economic link between those losses and the income earned in that Member State – Whether permissible – Conditions
(EEC Treaty, Art. 52)
2 Freedom of movement for persons – Freedom of establishment – Procedural rules concerning revenue tax – Restrictions – Legislation of a Member State making the carrying forward of losses incurred by a non-resident taxpayer subject to the keeping and holding, in that Member State, of accounts complying with national rules – Not permissible – Justification on grounds of public interest – Effectiveness of fiscal supervision – Obligation for the taxpayer to demonstrate clearly and precisely that the losses declared correspond to the losses actually incurred – Whether permissible
(EEC Treaty, Art. 52)
3 Article 52 of the Treaty does not preclude a Member State from making the carrying forward of previous losses, requested by a taxpayer which has a branch in its territory but is not resident there, subject to the condition that the losses must be economically linked to the income earned in that State, provided that resident taxpayers do not receive more favourable treatment.
4 Article 52 of the Treaty precludes a Member State from making the carrying forward of previous losses, requested by a taxpayer which has a branch in its territory but is not resident there, subject to the condition that, in the year in which he incurred those losses, he must have kept and held in that Member State accounts relating to his activities carried on there which comply with its relevant national rules.
Such a condition may constitute a restriction, within the meaning of Article 52 of the Treaty, on the freedom of establishment of companies or firms which wish to establish a branch in a Member State different from that in which they have their seat, in that it requires them to keep and to hold, at the place where the branch is established and in addition to their own accounts which must comply with the tax accounting rules applicable in the Member State in which they have their seat, separate accounts for the branch’s activities, complying with the tax accounting rules applicable in the State in which the branch is established.
Although that condition may be justified by a pressing reason of public interest, namely the effectiveness of fiscal supervision, it is not essential, in this regard, that the means by which the non-resident taxpayer is allowed to demonstrate the amount of the losses he seeks to carry forward be limited to those provided for by the national legislation concerned. However, a Member State may, for that pressing reason of public interest, require the non-resident taxpayer to demonstrate clearly and precisely that the amount of the losses which he claims to have incurred corresponds, under its domestic rules governing the calculation of income and losses which were applicable in the financial year concerned, to the amount of the losses actually incurred by the taxpayer in that State.

Citations:

C-250/95, [1997] EUECJ C-250/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161641

Commission v ICI: ECJ 6 Apr 2000

ECJ (Judgment) Appeal – Action for annulment – Pleas in law – Infringement of essential procedural requirements – Failure to authenticate a decision adopted by the college of Commissioners – Issue that may be raised of the Court’s own motion

Citations:

C-286/95, [2000] EUECJ C-286/95P

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161671

Hill and Stapleton v The Department of Commissioners and Department of Finance: ECJ 17 Jun 1998

Two female employees shared a job in the civil service during which time they each moved up one point in the incremental pay scale with each year of service and were paid fifty percent of the salary for clerical assistants. After two years they switched to full-time employment but their position on the incremental pay scale was adjusted in accordance with an instruction that each year’s job-sharing service was only reckonable as six months full-time service. The issue for the ECJ was whether the principle of finally equal pay was contravened, if employees who convert from job-sharing to full-time work regress on the incremental scale, and hence on their salary scale due to the application by the employer of the criteria of service calculated by time worked in a job and, if so, did the employer have to provide special set of classification for re-course to the criterion of service to find his actual time worked in awarding incremental credit.
Held: Treatment of job sharers as having acquired seniority of half that of time served (having worked half time) was discriminatory. 98% of job sharing civil servant employees were women. Otherwise only if difference based on objective non-sex related factors.

Citations:

Gazette 09-Sep-1998, C-243/95, Ecj/Cfi Bulletin, 9, [1998] IRLR 466, [1998] EUECJ C-243/95

Links:

Bailii

Statutes:

Council Directive 75/117/EEC Equal Pay Directive

Cited by:

Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European, European

Updated: 03 June 2022; Ref: scu.161632

Regina v Intervention Board for Agricultural Produce, ex parte Accrington Beef Co Ltd and Others: ECJ 12 Dec 1996

ECJ 1 Agriculture – Common organization of the markets – Beef and veal – Import rules – Community tariff quotas – Conditions of eligibility for operators other than traditional importers – Export thresholds higher than those required for the two preceding quotas – Misuse of powers – None – Principle of proportionality – Principle of the protection of legitimate expectations – Duty to state reasons – Breach – None (Council Regulation No 130/94; Commission Regulation No 214/94, Art. 1(2))
2 Agriculture – Common organization of the markets – Discrimination between producers or consumers – Import rules governing eligibility for the Community tariff quota for certain kinds of frozen beef – Possibility for traditional importers to cumulate rights of access to the quota in the case of company mergers – Other operators not permitted to do so – No discrimination (EC Treaty, Art. 40(3); Commission Regulation No 214/94, Art. 2(2))
3 Since the purpose of Regulation No 130/94 opening a Community tariff quota for certain kinds of frozen beef is to guarantee equal and continuing access to the quota for all interested operators within the Community, the Commission did not exceed the powers conferred on it by that regulation when it provided in Article 1(2) of Regulation No 214/94 laying down detailed rules for the application of Regulation No 130/94 that the part of the quota available to operators other than traditional importers was to be restricted to applicants who could furnish proof of having exported to third countries during the reference period a minimum quantity of beef greater than that required for the two preceding quotas. Although the criteria of eligibility for the quota which the Commission was called upon to lay down were required to be such as to guarantee equal and continuing access only for operators who had imported or exported significant amounts, Regulation No 130/94 did not require it to link export thresholds directly to developments in trade with third countries. Furthermore, the criteria laid down by the Commission rightly deter the proliferation of `paper companies’ reflecting the artificial fragmentation by certain traders of their economic structure, which is liable to disrupt the scheme because it increases the number of applications and thereby reduces the quantities available for genuine small operators, who thus risk being excluded from the quota altogether. The raising of the export thresholds by the Commission did not breach the principle of proportionality, either, because in the light of the purpose of the scheme it was reasonable that the effect of the change be to deprive of the right to participate in the quota a large number of undertakings created artificially for the sole purpose of obtaining a larger share of the quota, there being no proof that the increase prevented a large number of genuinely small operators from obtaining a share of the quota. Likewise, it did not breach the principle of the protection of legitimate expectations because any prudent and diligent trader must know that the export thresholds may be altered whenever a new annual quota is adopted, and the premature announcement of the new eligibility criteria would encourage the creation of `paper companies’ precisely to meet the new thresholds, thus enabling large groups to obtain maximum advantage from the quota. Finally, the duty to state reasons for the increase was complied with, since the preambles to Regulations No 130/94 and No 214/94 state clearly the considerations which led the Commission to alter the eligibility criteria for operators other than traditional importers. 4 The fact that Article 2(2) of Regulation No 214/94 laying down detailed rules for the application of the import rules opening a Community tariff quota for certain kinds of frozen beef deprives companies resulting from mergers who wish to obtain a share of the quota for non-traditional operators of the possibility of cumulating past performance obtained by each of them, a possibility which is available to traditional importers, does not constitute discrimination prohibited by Article 40(3) of the Treaty. The way in which the quota for traditional importers is distributed is not comparable to the way in which the quota reserved for other operators is distributed. The first is allocated among eligible operators in proportion to the imports achieved by each of them, whereas the second is allocated in proportion not to imports or exports, but to the quantities applied for, subject to a maximum per application. Consequently, the cumulation of rights to a share in the traditional quota is not intended to determine the eligibility for the quota of companies arising from mergers which would not otherwise be eligible, but to permit them to cumulate quota shares already held separately by the undertakings involved in the merger.

Citations:

C-241/95, [1996] EUECJ C-241/95

Links:

Bailii

European, Agriculture

Updated: 03 June 2022; Ref: scu.161630

Commission v Italy: ECJ 20 Jun 1996

ECJ (Judgment) 1. Member States – Obligations – Implementation of directives – Failure to fulfil obligations not contested
2. Procedure – Costs – Withdrawal justified by the conduct of the other party
(Rules of Procedure of the Court of Justice, Art. 69(5))

Citations:

C-237/95, [1996] EUECJ C-237/95

Links:

Bailii

Statutes:

EC Treaty 169

European

Updated: 03 June 2022; Ref: scu.161626

Criminal proceedings against Schmit: ECJ 27 Jun 1996

(Judgment) Article 30 of the Treaty precludes national legislation concerning model-year dates for motor vehicles which causes the administrative authorities and traders of the Member State in question to consider that, where two motor vehicles of the same model and make are sold in that Member State after 30 June, only the vehicle which was the subject of a parallel import would be prohibited from holding itself out as being of the following model year. Such rules are likely to discourage the sale of the vehicles concerned in so far as, although they are the same model as the others, they are presented as being of an earlier year and accordingly are at a discount on resale or where compensation is payable in the event of a claim.
In addition, such rules cannot be justified under requirements relating to consumer protection or fairness of transactions. They do not guarantee that the consumer will be informed with certainty either of the differences in the characteristics of two vehicles of different model years or that two vehicles of the same model and model year will be identically manufactured.

Citations:

C-240/95, [1996] EUECJ C-240/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161629

Biogen v Smithkline Beecham Biologicals: ECJ 26 Feb 1996

ECJ (Order) A natural or legal person who has not sought or been granted leave to intervene before the national court is not entitled to apply for leave to intervene in preliminary ruling proceedings before the Court of Justice in order to submit observations on the question raised by the national court.
Article 37 of the Statute of the Court recognizes a right to intervene, but only in contentious proceedings designed to settle a dispute and not in proceedings under Article 177 of the Treaty; Article 177 provides for a right to submit observations but limits that right, as far as natural and legal persons are concerned, to those who are parties to the action pending before the national court seeking a ruling from the Court of Justice.

Citations:

C-181/95, [1997] ECR I-386, [1997] RPC 833

Links:

Bailii

European, Litigation Practice

Updated: 03 June 2022; Ref: scu.161608

Commission v Italy: ECJ 14 Mar 1996

(Judgment) A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down by a directive.

Citations:

C-238/95, [1996] EUECJ C-238/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161627

ARO Lease v Inspecteur der Belastingdienst Grote Ondernemingen te Amsterdam: ECJ 17 Jul 1997

ECJ Sixth VAT Directive – Leasing company supplying passenger cars – Place where the supplier has established its business – Fixed establishment

Citations:

[1997] BVC 547, [1997] ECR I-4383, [1997] BTC 5433, C-190/95, [1997] EUECJ C-190/95, [1997] CEC 1082, [1997] STC 1272

Links:

Bailii

European, VAT

Updated: 03 June 2022; Ref: scu.161613

Decker v Caisse de maladie des employes prives: ECJ 28 Apr 1998

ECJ Judgment – Free movement of goods – Articles 30 and 36 of the EC Treaty – Reimbursement of medical expenses incurred in another Member State – Prior authorisation of the competent institution – Purchase of spectacles

Citations:

C-120/95, [1998] EUECJ C-120/95, [1998] ECR I-1831, ECLI:EU:C:1998:167

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161566

Rank Xerox Manufacturing v Inspecteur der Invoerrechten en Accijnzen: ECJ 9 Oct 1997

ECJ The Common Customs Tariff must be interpreted as meaning that apparatuses which can both send faxes and make copies, and comprise a scanning device (scanner), a digital storage device (memory) and a printing device (laser printer), are to be classified under sub-heading 9009 12 00 of the combined nomenclature.
Such multi-function machines, which might be classified either under heading 8517 or under heading 9009, must be classified, in accordance with general rule 3(c) for the interpretation of the combined nomenclature, under the heading which occurs last in numerical order among those which equally merit consideration since, first, general rule 3(a), according to which the most specific description is to be preferred, is excluded because the relevant tariff headings fall within different chapters and, second, general rule 3(b) does not apply because those apparatuses display no feature enabling their essential character to be determined.

Citations:

C-67/95, [1997] EUECJ C-67/95, [1997] ECR I-5401

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.161533

Inasti v Kemmler: ECJ 15 Feb 1996

(Judgment) Given that freedom of establishment is not confined to the right to create a single establishment within the Community but includes freedom to set up and maintain, subject to observance of the professional rules of conduct, more than one place of work within the territory of the Member States, Article 52 of the Treaty seeks to facilitate the pursuit of occupational activities throughout the territory of the Member States and consequently precludes national legislation which might inhibit the extension of such activities beyond the territory of a single Member State. Accordingly, it precludes a Member State from requiring contributions to be made to the scheme for self-employed persons by persons already working as self-employed persons in another Member State where they have their habitual residence and are affiliated to a social security scheme, where that obligation is wholly unjustified in that it provides them with no additional social protection.

Citations:

C-53/95, [1996] EUECJ C-53/95

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161524

Criminal proceedings against X: ECJ 12 Dec 1996

(Judgment) Criminal proceedings may not be brought in respect of conduct not clearly defined as culpable.

Citations:

C-74/95, [1996] ECR I-6609, [1996] EUECJ C-74/95

Links:

Bailii

Cited by:

Cited – Regina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
Lists of cited by and citing cases may be incomplete.

European, Crime

Updated: 03 June 2022; Ref: scu.161540

France v Commission C-57/95: ECJ 20 Mar 1997

(Judgment) An action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. This is so in the case of a Commission communication, published in the C series of the Official Journal, on an internal market for pension funds, where that communication is not confined to explaining the Treaty provisions, applicable to pension institutions, on freedom to provide services, freedom of establishment and free movement of capital, but lays down obligations with which the Member States must comply and which cannot be regarded as inherent in those provisions, and is thus intended to have legal effects of its own, distinct from those provided for by the Treaty. In that respect, the fact that the communication has not been notified to the Member States is irrelevant.
In the absence, in the Treaty, of any provision conferring such a power on the Commission, and in view of the fact that, in any event, only the Council is empowered, under Articles 57(2) and 66 of the Treaty, to issue directives for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking up and pursuit of activities as self-employed persons, the Commission has no competence to adopt an act imposing on Member States obligations not provided for in the Treaty provisions on freedom to provide services, freedom of establishment and free movement of capital.
It is therefore necessary to annul Commission Communication 94/C 360/08 on an Internal Market for Pension Funds, which is not confined to clarifying the correct application of the Treaty provisions but is intended to have legal effects of its own, distinct from those already provided for by those provisions.

Citations:

C-57/95, [1997] EUECJ C-57/95

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161526

Regina v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds: ECJ 11 Jul 1996

(Judgment) When designating an area of land as a wild bird special protection site, economic factors were to be excluded.
ECJ Article 4(1) or Article 4(2) of Directive 79/409 on the conservation of wild birds, which requires the Member States to take special conservation measures for certain species, and in particular to designate as Special Protection Areas the most suitable territories for their conservation, must be interpreted as meaning that a Member State is not authorized to take account of the economic requirements mentioned in Article 2 of the directive when choosing and defining the boundaries of a Special Protection Area or even to take account of economic requirements constituting a general interest superior to that represented by the ecological objective of that directive. Similarly, a Member State may not take account of economic requirements in so far as they amount to imperative reasons of overriding public interest of the kind referred to in Article 6(4) of Directive 92/43 on the conservation of the natural habitats of wild fauna and flora, as inserted in Directive 79/409. Although the latter provision widened the range of grounds on which it may be justified to encroach upon Special Protection Areas already designated as such, by expressly including therein reasons of a social or economic nature, it nevertheless did not make any change regarding the initial stage of classification referred to in Article 4(1) and (2) of Directive 79/409, and therefore the classification of sites as Special Protection Areas must in all circumstances be carried out in accordance with the criteria accepted by those provisions.

Judges:

GC Rodriguez Iglesias, P

Citations:

Times 02-Aug-1996, [1997] 2 WLR 123, [1996] ECR I-3805, [1996] 3 CMLR 411, [1997] Env LR 442, C-44/95, [1997] QB 206, [1996] EUECJ C-44/95

Links:

Bailii

Statutes:

Council Directive 79/409/EEC Conservation of Wild Birds

Cited by:

Cited – Bown v Secretary of State for Transport CA 31-Jul-2003
The appeal concerned the environmental effect of the erection of a bridge being part of a bypass. It was claimed that the area should have been designated as a Special Protection Area for Birds (SPA), and that if so it should be treated as such for . .
Cited – Sustainable Shetland v The Scottish Ministers and Another (Scotland) SC 9-Feb-2015
Wind Farm Permission Took Proper Account
Sustainable Shetland challenged the grant of permission for a wind farm saying that the respondents had failed properly to take account of their obligations under the Birds Directive, in respect of the whimbrel, a protected migratory bird.
Lists of cited by and citing cases may be incomplete.

Environment, European

Updated: 03 June 2022; Ref: scu.161518

Pastoors and Trans-Cap v Belgische Staat: ECJ 23 Jan 1997

ECJ Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Road transport – Punishment of infringements of social provisions – National implementing legislation giving the offender the option between allowing criminal proceedings to take their course or paying a sum of money immediately – Obligation imposed only on non-residents to lodge a deposit, demanded separately in respect of each infringement, in default of which the vehicle is impounded – Not permissible
Article 6 of the Treaty precludes national legislation adopted in implementation of Regulation No 3820/85 on the harmonization of certain social legislation relating to road transport and of Regulation No 3821/85 on recording equipment in road transport which, in cases of infringement, imposes only on non-residents who opt for continuation of normal criminal proceedings against them rather than for immediate payment of the prescribed fine the obligation to lodge in respect of each offence by way of security for payment of the fine and any legal costs a fixed sum higher than that provided for in the case of immediate payment, in default of which their vehicle is impounded.
Although, in the absence of a convention to ensure the enforcement of court decisions in criminal matters between Member States, a difference in treatment between resident and non-resident offenders is objectively justified, the obligation imposed on the latter to pay a sum by way of security being appropriate to prevent them from avoiding an effective penalty, the penalties chosen by a Member State in the event of infringement of a Community regulation must not go beyond what is necessary in order to achieve the aim pursued. That will be so where, in respect of various infringements which are simultaneously found to exist and are mentioned in the same document, the sum payable by way of security is demanded separately for each infringement with which a non-resident offender is charged, in default of which the vehicle is impounded, even though the infringements all give rise to a single set of proceedings against him.

Judges:

G.F. Mancini, P

Citations:

C-29/95, [1997] EUECJ C-29/95

Links:

Bailii

Statutes:

EC Treaty 6, Council Regulation 3820/85, Council Regulation 3821/85

European

Updated: 03 June 2022; Ref: scu.161508

Reiseburo Broede v Sandker: ECJ 12 Dec 1996

ECJ (Judgment) 1 Freedom to provide services – Restrictions – Whether permissible – Conditions
(EC Treaty, Art. 59)
2 Freedom to provide services – Judicial recovery of debts – Restrictions – Obligation to use the services of a lawyer – Justification on grounds of the general interest – Protection of recipients of services and proper administration of justice – Permissible
(EC Treaty, Art. 59)
3 A national rule preventing nationals of other Member States from engaging in the provision of services does not fall outside the prohibition laid down by Article 59 of the Treaty unless four conditions are fulfilled, namely that it must be applied in a non-discriminatory manner, must be justified by imperative requirements in the general interest, must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it, and restrictions justified by overriding reasons in the general interest are permissible only if that interest is not already safeguarded by the rules to which the provider of the service is subject in the Member State where he is established.
4 Article 59 of the Treaty does not preclude a national rule which prohibits an undertaking established in another Member State from securing judicial recovery of debts owed to others on the ground that the exercise of that activity in a professional capacity is reserved to the legal profession. Such a prohibition is not discriminatory, since it applies without distinction to national providers of services and to those of other Member States, is intended to protect recipients of services against the harm which they could suffer as a result of using the services of persons not possessing the necessary professional or personal qualifications and to safeguard the proper administration of justice, is capable of achieving that objective on account of the guarantee of competence attaching to the services of a lawyer, and cannot be described as disproportionate, even if it is not applied in other Member States, since it is for the Member States to decide the extent to which activities are to be reserved to the legal profession.
‘the application of professional rules to lawyers, in particular those relating to organization, qualifications, professional ethics, supervision and liability, ensures that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience’.

Judges:

J.C. Moitinho de Almeida, P

Citations:

C-3/95, [1996] ECR I-6511, [1997] 1 CMLR 224, [1996] EUECJ C-3/95

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Lists of cited by and citing cases may be incomplete.

European, Legal Professions

Updated: 03 June 2022; Ref: scu.161490

Criminal proceedings against Tombesi and others: ECJ 25 Jun 1997

ECJ Waste – Definition – Council Directives 91/156/EEC and 91/689/EEC – Council Regulation (EEC) No 259/93
Waste includes substances discarded by their owners, even if they ”have a commercial value and are collected on a commercial basis for recycling, reclamation or re-use”.

Judges:

Mancini, P

Citations:

[1997] ECR 1-3561, [1998] Env LR 59, C-304/94, [1997] EUECJ C-304/94

Links:

Bailii

Statutes:

Council Regulation (EEC) No 259/93, Council Directive 91/156/EEC, Council Directive 91/689/EEC

Citing:

See Also – Euro Tombesi, Santella etc ECJ 25-Jun-1997
ECJ (Environment And Consumers) Waste – Definition – Council Directives 91/156/EEC and 91/689/EEC – Council Regulation (EEC) No 259/93 . .
See Also – Tombesi and Others ECJ 25-Jun-1997
ECJ (Environment And Consumers) Waste – Definition – Council Directives 91/156/EEC and 91/689/EEC – Council Regulation (EEC) No 259/93 . .
See Also – Tombesi ECJ 25-Jun-1997
(Environment And Consumers) Waste – Definition – Council Directives 91/156/EEC and 91/689/EEC – Council Regulation (EEC) No 259/9 . .

Cited by:

Cited – Ezeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Lists of cited by and citing cases may be incomplete.

European, Environment

Updated: 03 June 2022; Ref: scu.161464

Commission v Netherlands: ECJ 11 Jan 1996

ECJ (Judgment) Under Articles 1(5) and 8(1) of Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, Member States are required to communicate to the Commission forthwith, irrespective of the effects which it may have on trade between Member States, any draft technical specifications, the observance of which is compulsory in the case of the marketing or use of a product in its territory. A Member State fails to fulfil that obligation where, without notifying it to the Commission at the drafting stage, it adopts a regulation derogating from a decree on the manufacture of margarine by authorizing the use, under specified conditions, of substitute products listed therein.

Citations:

C-273/94, [1996] EUECJ C-273/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161440

Criminal proceedings against Ohrt: ECJ 18 Jan 1996

ECJ (Judgment) 1. Article 2 of Regulation No 1382/87, establishing detailed rules concerning the inspection of fishing vessels, must be interpreted as meaning that every inspection vessel, regardless of type or dimensions, must display the identification symbol or pennant described in Annex I to that regulation.
Only if a vessel flies a distinctive symbol of that kind, so that it is visible, can the skipper of a fishing vessel identify it as an inspection vessel and comply with orders given by it, without any other form of warning, in accordance with Article 3(1) of the Regulation. That finding is not affected by the fact that the boat undertaking the inspection belongs to the main vessel but is, for the time being, operating independently.
2. The obligation to comply with the orders of a representative of the competent authority of a Member State, under Article 3 of Regulation No 1382/87, which lays down detailed rules concerning the inspection of fishing vessels, presupposes that the skipper of the vessel to be inspected is aware of the status of that representative. In the absence of the symbol or pennant required by Article 2 of the Regulation, the skipper is presumed to be unaware of that status, unless the authorities taking action concerning the infringement prove otherwise.

Citations:

C-276/94, [1996] EUECJ C-276/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161442

Garage Molenheide and others v Belgische Staat: ECJ 18 Dec 1997

ECJ Scope of directive – Right to deduction of VAT – Retention of balance of VAT due – Principle of proportionality.

Citations:

C-286/94, [1997] EUECJ C-286/94, [1998] STC 126

Links:

Bailii

Statutes:

Sixth Directive 77/388/EEC

Cited by:

Cited – UK Tradecorp Ltd, Regina (on the Application of) v Commissioners for Customs and Excise Admn 10-Nov-2004
The trader had traded in zero-rated goods, leading to a net reclaim of input tax. Having submitted a claim, it sought repayment, and interest on the sums withheld.
Held: No duty fell upon the commissioners until they had accepted the claim to . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 03 June 2022; Ref: scu.161450

Taflan-Met and others (Rec 1996,p I-4085): ECJ 10 Sep 1996

ECJ (Judgment) 1. In the absence of any express provision on its entry into force, Decision No 3/80 of the EEC-Turkey Association Council on the application of the social security schemes of the Member States to Turkish workers and members of their families entered into force on the date on which it was adopted and has been binding on the Contracting Parties since then. It follows from Articles 6, 22(1) and 23 of the EEC-Turkey Association Agreement that decisions of the Association Council are measures adopted by a body provided for by the Agreement and empowered by the Contracting Parties to adopt such measures. In so far as they implement the objectives set by the Agreement, such decisions are directly connected with the Agreement and, as a result of the second sentence of Article 22(1) thereof, have the effect of binding the Contracting Parties.
2. In common with provisions of agreements concluded by the Community with non-member countries, a provision adopted by an association council, set up by an association agreement to implement its provisions, must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.
Those conditions are not met by Decision No 3/80 of the EEC-Turkey Association Council on the application of the social security schemes of the Member States to Turkish workers and members of their families.
In the same way that Regulation No 1408/71, to which Decision No 3/80 refers and which is also intended to coordinate the different legislation of the Member States within the Community, required the adoption of implementing measures, which were embodied in Regulation No 574/72, by its nature Decision No 3/80 was intended to be supplemented and implemented in the Community by a subsequent act of the Council.
It follows that, so long as the supplementary measures essential for implementing Decision No 3/80 have not been adopted by the Council, Articles 12 and 13 of that decision do not have direct effect in the territory of the Member States and are therefore not such as to entitle individuals to rely on them before the national courts.

Citations:

C-277/94, [1996] EUECJ C-277/94

Links:

Bailii

European, Benefits

Updated: 03 June 2022; Ref: scu.161443

Criminal proceedings against Guiot: ECJ 28 Mar 1996

(Judgment) Articles 59 and 60 of the Treaty preclude a Member State from requiring an undertaking in the construction industry established in another Member State and temporarily carrying out works in the first-mentioned Member State to pay employer’ s contributions in respect of loyalty stamps and bad-weather stamps with respect to workers assigned to carry out those works, where that undertaking is already liable for comparable employer’ s contributions, with respect to the same workers and for the same period of work, in the State where it is established.
Such an obligation, even if it is applicable without distinction to undertakings established in the national territory and those established in another Member State which make use of the freedom to provide services, constitutes, in so far as the competitiveness of the latter is affected since it must pay contributions in two Member States, a restriction on that freedom. Such restriction could be justified by the public interest in the social protection of workers in the construction industry, although in that event the workers in question should not enjoy the same protection or essentially similar protection in the Member State where their employer is established.
It is for the national court to determine whether, apart from the technical differences between the schemes protecting employees in the two Member States in question, the workers concerned do not already benefit, in the Member State where the undertaking which employs them is established, from a mechanism, maintained by the contributions of their employer, which offers them protection essentially comparable to that financed by the contributions provided for in the State where the service is provided. If it is confirmed that such is indeed the case, the restriction on the freedom to provide services is not permissible.

Citations:

C-272/94, [1996] EUECJ C-272/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161439

Commission v Belgium: ECJ 12 Sep 1996

ECJ By making the grant of tideover allowances to young people seeking their first employment subject to the requirement of having completed their secondary education in an establishment subsidized or approved by it, a Member State imposes a condition which is likely to be more easily fulfilled by the children of its own nationals than by those of a national of another Member State. In the case of a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 which may be claimed by the members of the family of a migrant worker, that condition, which is akin to a condition of prior residence, constitutes a form of covert discrimination against the children of such a worker, contrary to the principle of equal treatment laid down by Article 48 of the Treaty and Article 7 of the abovementioned regulation, notwithstanding the fact that it also applies to nationals of that State who complete their secondary education abroad, without its being necessary to establish that in practice it affects a substantially higher proportion of children of migrant workers than those of nationals.
A special programme for the employment of young people who have completed their secondary education, set up by a Member State and characterized by the recruitment by organizations or undertakings of young people seeking their first employment and receiving the tideover allowance, who, for the purposes of social and tax legislation, are deemed to be employed by a national employment authority, and for whom the State assumes responsibility for the payment of all or part of their remuneration and social security contributions, must be regarded as falling within the scope of unemployment insurance and outside the scope of access to employment in the strict sense, as covered by Title I, and in particular Article 3(1), of Regulation No 1612/68.
The effect of that link with unemployment insurance is that Community law relating to freedom of movement for workers can only be relied on in order to contest discrimination on grounds of nationality involved in that regime by a person who, as a result of having already participated in the employment market by exercising an effective and genuine occupational activity, has the status of a worker within the Community meaning of that term, and young people seeking their first employment do not fall into that category.

Citations:

C-278/94, [1996] ECR I-4307, [1996] EUECJ C-278/94

Links:

Bailii

Cited by:

Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161444

Jose Garcia and others v Mutuelle de Prevoyance Sociale d’Aquitaine and others: ECJ 26 Mar 1996

ECJ Article 2(2) of Directive 92/49 on the co-ordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 is to be interpreted as meaning that social security schemes such as the French statutory social security schemes providing health and maternity insurance for the self-employed in non-agricultural trades, old-age insurance for those in skilled manual trades and old-age insurance for those in industrial and commercial trades are excluded from the scope of Directive 92/49. That provision quite clearly excludes from the scope of the directive not merely social security organizations but also the types of insurance and operations which they provide in that capacity. Furthermore, the Member States retain their powers to organize their social security systems and thus to set up compulsory schemes based on the principle of solidarity, which would be unable to survive if the directive were to be applied to them, removing the obligation to contribute.

Citations:

C-238/94, [1996] EUECJ C-238/94

Links:

Bailii

Statutes:

Council Directive 92/49/EEC

European

Updated: 03 June 2022; Ref: scu.161418