Category: European

Portugal v Council: ECJ 3 Dec 1996

ECJ (Judgment) 1 Development cooperation – Conclusion by the Community of international agreements – EC-India Cooperation Agreement – Provision concerning respect for human rights – Legal basis – Article 130y of the Treaty – Whether permissible
(EC Treaty, Arts 130u(2), 130y and 235; EC-India Cooperation Agreement, Art. 1(1); Council Decision 94/578)
2 Development cooperation – Conclusion by the Community of international agreements – Agreement containing clauses relating to specific matters – Legal basis – Article 130y of the Treaty – Whether permissible – Conditions – EC-India Cooperation Agreement
(EC Treaty, Art. 130u(1) and 130y; EC-India Cooperation Agreement, Arts 7, 10, 13, 15, and 19; Council Decision 94/578)
3 So far as concerns Article 1(1) of the Agreement providing for respect for human rights and democratic principles, Decision 94/578 concerning the conclusion of the Cooperation Agreement between the European Community and the Republic of India on Partnership and Development could be validly based on Article 130y of the Treaty and did not require recourse to Article 235 as the legal basis. In that respect, the mere fact that the provision in question describes respect for human rights as an essential element of cooperation does not justify the conclusion that it goes beyond the objective stated in Article 130u(2) of the Treaty, the very wording of which demonstrates the importance to be attached to respect for human rights and democratic principles, so that development cooperation policy must be adapted to the requirement of respect for those rights and principles.
4 A development cooperation agreement concluded between the Community and a non-member country and adopted on the basis of Article 130y of the Treaty may lay down provisions on specific matters without there being any need to have recourse to other legal bases, or indeed to participation of the Member States in the conclusion of the agreement, in so far as the essential purpose of the agreement is to pursue the objectives referred to in Article 130u(1), and on condition that the clauses concerning specific matters do not impose obligations so extensive that they in fact constitute objectives distinct from those of development cooperation.
In that respect, the cooperation provided for by the Cooperation Agreement between the European Community and the Republic of India on Partnership and Development is specified – in the provisions concerning the Agreement’s objectives – in terms that take particular account of the needs of a developing country and, consequently, amongst other things, contributes to furthering the pursuit of the objectives mentioned in Article 130u(1) of the Treaty.
As regards more particularly the provisions of the Agreement which relate to specific matters concerning energy, tourism and culture (Articles 7, 13 and 15), drug abuse control (Article 19) and intellectual property (Article 10), those provisions establish the framework of cooperation between the contracting parties and are limited to determining the areas for cooperation and to specifying certain of its aspects and various actions to which special importance is attached, but do not for that reason contain anything that prescribes in concrete terms the manner in which cooperation in each specific area envisaged is to be implemented.
The mere inclusion of provisions for cooperation in a specific field does not therefore necessarily imply a general enabling power to serve as the basis of a competence to undertake any kind of cooperation action in that field, with the result that it does not predetermine the allocation of spheres of competence between the Community and the Member States or the legal basis of Community acts for implementing cooperation in such a field. From the point of view of the incorporation into the Agreement of Articles 7, 10, 13, 15 and 19, it must be concluded that it was possible for Decision 94/578 on the conclusion of the Agreement, to be validly adopted on the basis of Article 130y of the Treaty.

Citations:

C-268/94, [1996] EUECJ C-268/94

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Bailii

European

Updated: 03 June 2022; Ref: scu.161437

France v Commission: ECJ 14 Dec 1995

ECJ By including, by means of Article 1 of Regulation No 1641/94, in residues from the manufacture of starch from maize within the meaning of tariff subheading 2303 10, residues resulting from the screening of maize used in the wet process in a proportion not exceeding 15% by weight and residues of steep-water used in the manufacture of alcohol or of other starch-derived products, the Commission has modified that subheading. It therefore exceeded its power to clarify the tariff heading which had been conferred on it by Article 9 of Regulation No 2658/87, with the result that the regulation is to that extent invalid. Residues from the manufacture of starch from maize include only products which result directly from the operation of extracting starch from maize and not products such as the residues resulting from the screening of maize which are already contained in bulk maize and do not undergo any change in the course of the starch extraction process and products such as residues of steep-water used in the manufacture of alcohol or of other starch-derived products which result from a separate process, subsequent to that of starch manufacture.

Citations:

C-267/94, [1995] EUECJ C-267/94, [1995] ECR I-4845

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, VAT

Updated: 03 June 2022; Ref: scu.161436

Roujansky v Council: ECJ 13 Jan 1995

ECJ (Order) 1. Neither the declaration of the European Council on the entry into force of the Treaty on European Union nor the Treaty on European Union is an act whose legality is subject to review under Article 173 of the Treaty.
2. Where all the other pleas in law relied upon in an appeal against a decision of the Court of First Instance have been dismissed, the plea concerning the lawfulness of its decision on costs must, pursuant to the second paragraph of Article 51 of the Statute of Court of Justice, be dismissed as inadmissible.

Citations:

C-253/94, [1995] EUECJ C-253/94P

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161428

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

Boukhalfa v Bundesrepublik Deutschland: ECJ 30 Apr 1996

ECJ The prohibition of discrimination based on nationality, laid down in Article 48(2) of the Treaty and Article 7(1) and (4) of Regulation No 1612/68 on freedom of movement for workers within the Community, applies to a national of a Member State who is permanently resident in a non-member country, who is employed by another Member State in its embassy in that non-member country and whose contract of employment was entered into and is permanently performed there, as regards all aspects of the employment relationship which are governed by the legislation of the employing Member State.
Article 227 of the Treaty, which defines the geographical application of the Treaty and, in principle, of secondary legislation, does not preclude Community rules from having effects outside the territory of the Community, in particular as regards employment relationships which, although they concern an activity pursued outside that territory, retain a sufficiently close link with the Community; that must be deemed to extend also to cases in which there is a sufficiently close link between the employment relationship, on the one hand, and the law of a Member State and thus the relevant rules of Community law, on the other.

Citations:

C-214/94, [1996] EUECJ C-214/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161399

MPA Pharma v Rhone-Poulenc Pharma GmbH: ECJ 11 Jul 1996

ECJ 1. Although a directive may not of itself impose obligations on an individual and cannot therefore be relied upon as such against him, the national court which applies national law and is required to interpret it must as far as possible do so, whether the provisions in question were adopted before or after the directive, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty.
2. Article 36 of the Treaty must be interpreted as meaning that a trade mark owner may rely upon his rights as owner to prevent an importer from marketing a pharmaceutical product which was put on the market in another Member State by the owner or with his consent, where that importer has repackaged the product and reaffixed the trade mark thereto without the owner’ s authorization, unless the following conditions are satisfied:
– it is established that reliance on trade mark rights by the owner in order to oppose the marketing of repackaged products under that trade mark would contribute to the artificial partitioning of the markets between Member States; such is the case, in particular, where the owner has put an identical pharmaceutical product on the market in several Member States in various forms of packaging, and the repackaging carried out by the importer is necessary in order to market the product in the Member State of importation, and also carried out in such conditions that the original condition of the product cannot be affected by it; that requirement does not, however, imply that it must be established that the trade mark owner deliberately sought to partition the markets between Member States;
– it is shown that the repackaging cannot affect the original condition of the product inside the packaging; such is the case, in particular, where the importer has merely carried out operations involving no risk of the product being affected, such as, for example, the removal of blister packs from their original external packaging and their insertion into new external packaging, or the addition to the packaging of new user instructions or information; it is for the national court to verify that the original condition of the product inside the packaging is not indirectly affected, for example, by the fact that the external or inner packaging of the repackaged product or new user instructions or information omits certain important information or gives inaccurate information;
– the new packaging clearly states who repackaged the product and the name of the manufacturer in print such that a person with normal eyesight, exercising a normal degree of attentiveness, would be in a position to understand; however, it is not necessary to indicate that the repackaging was carried out without the authorization of the trade mark owner;
– the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark and of its owner; thus, the packaging must not be defective, of poor quality, or untidy; and
– the importer gives notice to the trade mark owner before the repackaged product is put on sale, and, on demand, supplies him with a specimen of the repackaged product.
That interpretation of Article 36 of the Treaty also applies to Article 7(2) of the First Directive 89/104 on trade marks, the aim of both provisions being identical.

Judges:

Rodrguez Iglesias P

Citations:

[1996] EC I-3671, C-232/94, [1996] EUECJ C-232/94

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.161412

Criminal proceedings against van der Feesten: ECJ 8 Feb 1996

ECJ Environment – Conservation of wild birds – Directive 79/409 – Scope – Subspecies which, in contrast to the corresponding species or other subspecies thereof, occur naturally in the wild only outside the European territory of the Community – Included

Citations:

C-202/94, [1996] EUECJ C-202/94

Links:

Bailii

Statutes:

Directive 79/409

European

Updated: 03 June 2022; Ref: scu.161394

Binder v Hauptzollamt Stuttgart-West: ECJ 13 Jun 1996

ECJ 1. Acts of the institutions – Statement of reasons – Obligation – Scope – Regulations establishing protective measures applicable to imports of products covered by the common organization of the market in products processed from fruit and vegetables
2. Agriculture – Common organization of the markets – Products processed from fruit and vegetables – Protective measures applicable to imports of frozen strawberries as provided for by Regulations Nos 2198/90 and 3797/90 – Principle of proportionality – Breach – None

Citations:

C-205/94, [1996] EUECJ C-205/94

Links:

Bailii

Statutes:

EEC Treaty 190, Commission Regulation 3797/90, Commission Regulation 2198/90

European

Updated: 03 June 2022; Ref: scu.161395

Olivieri-Coenen v Bestuur van de Nieuwe Algemene Bedrijfsvereniging: ECJ 17 Oct 1995

ECJ Point 4(a) of the section on the Netherlands contained in Annex V of Regulation No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, in the version applicable as from 1 February 1982, is to be interpreted as meaning that periods of paid employment include periods in which a person worked as a teacher under a contract of employment concluded with a private educational establishment, even if that person was insured during that period under a special scheme for civil servants and persons treated as such excluded from the scope of the regulation. If the period of paid employment subject in that way to that special scheme was not treated as a period of insurance for the purposes of Annex V to the regulation, the person completing it would thereby suffer a disadvantage contrary to Article 51 of the Treaty, whereas to take that period into account does not entail any overlapping of different entitlements.

Citations:

C-227/94, [1995] EUECJ C-227/94

Links:

Bailii

European, Benefits

Updated: 03 June 2022; Ref: scu.161408

Commission v Luxembourg: ECJ 7 Nov 1996

ECJ (Judgment) 1. National provisions simply reproducing the text of Directive 86/361 on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment are not sufficient to transpose Directive 91/263 on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity. Between Directive 86/361 and Directive 91/263 there are clear differences as a result of which a Member State cannot claim to have implemented the second simply by having transposed the first. Amongst other things, Directive 91/263 constitutes, in relation to Directive 86/361, a further stage for full mutual recognition of type approval for terminal equipment, has an aim and a scope wider than Directive 86/361, lays down three requirements for terminal equipment which do not appear in the list of the essential requirements set out in Directive 86/361 and introduces a system of EC marking for terminal equipment complying with the requirements of the directive, which was not provided for by Directive 86/361.
2. The fact that a practice is in conformity with the requirements of a directive in the matter of protection can provide no reason for not transposing that directive into national law by means of provisions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascertain their rights and obligations. Similarly, a draft national regulation is not capable of transposing a directive.

Citations:

C-221/94, [1996] EUECJ C-221/94

Links:

Bailii

European, Media

Updated: 03 June 2022; Ref: scu.161405

Eismann Alto Adige v Ufficio IVA di Bolzano: ECJ 24 Oct 1996

ECJ Article 22(8) of the Sixth Directive (77/388) on the harmonization of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680 supplementing the common system of value added tax and amending Directive 77/388 with a view to the abolition of fiscal frontiers, must be interpreted as not precluding a national rule requiring accompanying documents to be drawn up in respect of goods transported within the confines of the Member State concerned.
The complete and exhaustive harmonization of the formalities which the Member States may impose on internal transactions for the correct collection of value added tax and for the prevention of evasion has not yet been carried out by the Community legislature and the latter, when laying down the rule that internal transactions and those between Member States should be treated equally, did not intend to prohibit a Member State from imposing formalities which are stricter on internal transactions than those applying to intra-Community trade.

Citations:

C-217/94, [1996] EUECJ C-217/94

Links:

Bailii

European, VAT

Updated: 03 June 2022; Ref: scu.161402

Buralux and others: ECJ 15 Feb 1996

ECJ Judgment – Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulation on the supervision and control of waste shipments – Action brought by undertakings specializing in waste shipment – Inadmissibility – Legal protection available from the national courts through an action challenging measures taken by the national authorities in implementation of the regulation

Citations:

C-209/94, [1996] EUECJ C-209/94P

Links:

Bailii

Statutes:

EC Treaty 173, Council Regulation No 259/93 3

European

Updated: 03 June 2022; Ref: scu.161397

Brennet v Paletta: ECJ 2 May 1996

ECJ Judgment – 1. Social security for migrant workers – Sickness insurance – Worker staying in a Member State other than the competent State – Entitlement to benefits necessitated by his state of health – Scope – Cash benefits designed to compensate for the sick worker’ s loss of earnings – Included – Payment of wages
2. Social security for migrant workers – Sickness insurance – Worker staying in a Member State other than the competent State – Incapacity for work – Obligatory recognition – Limits – Production by the employer of evidence supporting a finding of abuse or fraudulent conduct on the part of the worker – Whether permissible – Worker required to produce additional evidence – Not permissible

Citations:

C-206/94, [1996] EUECJ C-206/94

Links:

Bailii

Statutes:

Council Regulation No 1408/71 22(1)(a)(ii), Council Regulation No 574/72 18

European

Updated: 03 June 2022; Ref: scu.161396

Grand garage albigeois and others: ECJ 15 Feb 1996

ECJ (Judgment) Regulation No 123/85 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements merely provides economic agents in the motor vehicle industry with certain possibilities enabling them to remove their distribution and servicing agreements from the scope of the prohibition contained in Article 85(1) of the Treaty despite the inclusion in those agreements of certain types of exclusivity and no-competition clauses. It concerns only contractual relations between suppliers and their approved distributors and, although it states what the parties to such agreements may or may not undertake to do in relations with third parties, it does not, in contrast, serve to regulate the activities of such third parties, who may operate in the market outside the framework of distribution agreements.
Regulation No 123/85 must therefore be interpreted as not preventing a trader who is neither an approved reseller in the distribution network of a manufacturer of a particular make of motor vehicle nor an authorized intermediary within the meaning of Article 3(11) of that regulation from carrying on an independent business reselling new vehicles of that make.

Citations:

C-226/94, [1996] EUECJ C-226/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161407

Tomberger v Gebruder von der Wettern: ECJ 27 Jun 1996

ECJ (Judgment) In order to coordinate the content of annual accounts, the Fourth Directive 78/660 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies, as amended by the Seventh Directive 83/349 on consolidated accounts, lays down the principle of the ‘true and fair view’, compliance with which is the primary objective of that directive. Application of that principle must, as far as possible, be guided by the general principles contained in Article 31 of the directive, particularly in Article 31(1)(c), (aa) and (bb), and (d). It is clear from those provisions that taking account of all elements which actually relate to the financial year in question ensures observance of the principle of a true and fair view.
Where
– one company (the parent company) is the sole shareholder in another company (the subsidiary), and controls it,
– under national law, the parent company and the subsidiary form a group,
– the financial years of the two companies coincide,
– the subsidiary’ s annual accounts for the financial year in question were adopted by the general meeting before completion of the audit of the parent company’ s annual accounts for that year,
– the subsidiary’ s annual accounts for the financial year in question, as adopted by its general meeting, show that on the subsidiary’ s balance-sheet date – namely the last day of that financial year – the subsidiary appropriated profits to the parent company, and
– the national court is satisfied that the subsidiary’ s annual accounts for the financial year in question give a true and fair view of its assets and liabilities, financial position and profit or loss,
it is not contrary to the rule laid down in Article 31(1)(c)(aa) of the directive – according to which, for the purpose of valuing the items shown in the annual accounts, only profits made at the balance-sheet date may be included – for the national court to consider that the profits in question must be entered in the parent company’ s balance sheet for the financial year in respect of which they were appropriated by the subsidiary.

Citations:

C-234/94, [1996] EUECJ C-234/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161414

FMC and others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food: ECJ 8 Feb 1996

ECJ 1. Since, under the common organization of the markets in sheepmeat and goatmeat, the purpose of charging clawback is to avoid disruption of intra-Community trade arising from the application of the variable slaughter premium, it must be charged in such a way that it neutralizes the effect of the premium on departure from the region concerned of the products which benefited from it, without working to the advantage of producers in that region, as would be the case if the amount charged by way of clawback were lower than that of the premium granted, or affecting their competitive position, as would be the case if the clawback were higher than the premium.
There is no doubt that the first of the two options provided for by Regulation No 1922/92 relating to methods of calculating the clawback to be charged or to be reimbursed in the case of undue payment, which is available to traders who are in a position to supply proof to the competent authorities of the Member State concerned of the amount of the premium actually granted for products subject to clawback, is consistent with the objective pursued by the system of charging clawback, since it fixes the amount thereof at the same level as the premium granted.
As regards the proof that must be adduced in connection with the first option, it does not seem to be manifestly inappropriate for exporters to bear the burden of proof. Article 9(3) of Regulation No 1837/80 and Article 24(5) of Regulation No 3013/89, both establishing a common organization of the markets in sheepmeat and goatmeat, clearly laid down that the amount of the clawback was to be equal to that of the premium, so that a prudent trader, aware that he was liable to pay the clawback, had to take proper steps to obtain the necessary evidence attesting to the equivalence of the amounts in question.
Furthermore, the exporter knows the identity of the trader from whom he bought the products on which he is required to repay the clawback, so that he is best placed to adduce the requisite proof. Moreover, where it is impossible for the exporter to adduce such proof, Regulation No 1922/92 has by means of the second option provided for a different method of calculating the clawback.
The second option, which is based on the average value of the premium rates in force over a period of four weeks which must perforce include both the time when the product was first placed on the market and the time when it was exported, is likewise consistent with the purpose of clawback. On the one hand, it enables the fluctuations in clawback to be reduced significantly compared with those occurring under the old system of calculation, which was declared invalid, according to which the clawback was equal to the amount of the premium fixed solely for the week of export of the products concerned, and, on the other, the use of an average calculated over four weeks ensures that the amount of the clawback is as close as possible to that of the premium.
2. The requirement of proof laid down in Article 4(1) of Regulation No 1633/84, concerning the system for charging clawback within the common organization of the markets in sheepmeat and goatmeat, as amended by Article 1 of Regulation No 1922/92, and in Article 2 of the latter regulation, laying down the conditions for reimbursement of clawback unduly charged, is to be interpreted as meaning that traders are required to supply proof to the satisfaction of the competent authorities of the Member State concerned, in accordance with national law and within the period prescribed by Regulation No 1922/92, of the amount of the premium actually granted for products subject to clawback, provided that the applicable national rules do not affect the scope or effectiveness of Community law.
In that regard, and taking into account the duty of cooperation in good faith imposed on national authorities by Article 5 of the EC Treaty which forbids them to undermine either the effect or the effectiveness of Community law, the detailed procedural rules laid down by the applicable national law cannot be less favourable than those governing similar domestic procedures nor render virtually impossible or excessively difficult the implementation of Community legislation and thereby affect the exercise of rights conferred by the Community legal system.
3. As regards claims for repayment of clawback unduly paid prior to 10 March 1992, paragraph 30 of the judgment in Joined Cases C-38/90 and C-151/90 Lomas and Others [1992] ECR I-1781 is to be interpreted as meaning that traders or those entitled through them who prior to that date initiated proceedings or made an equivalent complaint under the applicable national law may rely on the invalidity of Article 4(1) and (2) of Regulation No 1633/84 concerning the system for charging clawback within the common organization of the markets in sheepmeat and goatmeat, as from the date of its entry into force, subject to the application, within the limits set by Community law, of any national rules limiting the period prior to the submission of a claim in respect of which repayment of a sum unduly paid may be obtained.
4. With regard to matters not governed by Article 2 of Regulation No 1922/92, amending Regulation No 1633/84 laying down detailed rules for applying the variable slaughter premium and determining the conditions for the reimbursement of clawback unduly charged, national courts called upon to give judgment on a claim for reimbursement of clawback unduly charged must apply their national law, provided the detailed rules laid down therein are not less favourable than those governing similar domestic actions and are not so framed as to render virtually impossible or excessively difficult the exercise of rights conferred by the Community legal system.
In that respect, a rule of national law, by virtue of which a sum paid to a public authority under a mistake of law may be recovered only if it was paid under protest, manifestly fails to satisfy those conditions, in that it is liable to prejudice effective protection of the rights conferred on the traders in question by Community law. Moreover, Article 2(1) of Regulation No 1922/92 expressly specifies the persons entitled to claim reimbursement without making the claim conditional on their conduct at the time of payment.
On the other hand, Community law does not prevent a national legal system from refusing to allow recovery of sums unduly charged where that would involve the unjust enrichment of those entitled.

Citations:

C-212/94, [1996] EUECJ C-212/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161398

Regina v The Medicines Control Agency, ex parte Smith and Nephew Pharmaceuticals and Primecrown v The Medicines Control Agency: ECJ 12 Nov 1996

ECJ When the competent authority of a Member State concludes that a proprietary medicinal product covered by a marketing authorization in another Member State and a proprietary medicinal product for which it has already issued a marketing authorization are manufactured by independent companies pursuant to agreements concluded with the same licensor and that those two products, although not identical in all respects, have at least been manufactured according to the same formulation and using the same active ingredient and that they also have the same therapeutic effects, it must treat the imported proprietary medicinal product as being covered by the latter marketing authorization unless there are countervailing considerations relating to the effective protection of the life and health of humans. If the public health authorities of the Member State of importation already have in their possession, as a result of an application for a marketing authorization for the proprietary medicinal product in question, all the pharmaceutical particulars relating to that product and considered to be absolutely necessary for the purpose of checking that the product is effective and not harmful, it is clearly unnecessary, in order to protect the health and life of humans, for those authorities to require a second trader who has imported a proprietary medicinal product satisfying the abovementioned criteria to produce these particulars again.
The fact that the grantor of the licences in respect of the two proprietary medicinal products in question is situated outside the European Community is irrelevant.
However, if the competent national authority concludes that the proprietary medicinal product to be imported does not satisfy the abovementioned criteria, a new marketing authorization is required. That authorization can be issued only in accordance with the conditions laid down in Articles 3 and 4 of Directive 65/65 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products, as amended in particular by Directive 87/21. It would, in particular, be contrary to those provisions, which preclude the issue of a marketing authorization unless all the information referred to in Article 4 has been supplied and the tests performed, for the competent authority, in the context of an application for a marketing authorization, to use information supplied by an independent company, without its agreement, in support of an application for a marketing authorization concerning another proprietary medicinal product.
2. The holder of an original marketing authorization issued under the procedure referred to in Directive 65/65 may rely on the provisions of that directive, as amended in particular by Directive 87/21, and specifically on Article 5 thereof, in proceedings before a national court in order to challenge the validity of an authorization issued by the competent national authority on the basis of that directive to one of its competitors for a proprietary medicinal product bearing the same name. The same applies where the authorization, although issued under another procedure laid down at national level, should have been issued on the basis of the directive. Those provisions are sufficiently unconditional and precise for that purpose.

Citations:

C-201/94, [1996] EUECJ C-201/94

Links:

Bailii

European, Licensing

Updated: 03 June 2022; Ref: scu.161393

Merckx and Neuhuys v Ford Motors Company Belgium (Rec 1996,p I-1253) (Judgment): ECJ 7 Mar 1996

Salesmen were transferred to a new dealership at a different workplace without any guarantee as to client base or sales figures, so that there was potential for an adverse impact on commission.
Held: All these components were ‘working conditions’. The change was substantial because it was a change in remuneration.

Citations:

C-171/94, [1996] EUECJ C-171/94, [1996] IRLR 467

Links:

Bailii

Statutes:

Council Directive 77/187/EEC of 14 February 1977

Cited by:

Cited – Tapere v South London and Maudsley NHS Trust EAT 19-Aug-2009
EAT CONTRACT OF EMPLOYMENT
Construction of term
The Employment Tribunal erred in construing the terms and conditions of employment as permitting the employer to transfer the employee to another . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 03 June 2022; Ref: scu.161377

Regina v Secretary of State for the Home Department Ex Parte Gallagher (Rec 1995,p I-4253) (Judgment): ECJ 30 Nov 1995

An expulsion of a community national from a member state must be with reasons given unless there was some need for urgency.
Europa 1. Freedom of movement for persons – Derogations – Decision concerning the control of foreign nationals – Decision ordering the expulsion of a Community national lawfully residing in the territory of a Member State – Examination and opinion procedure before the competent authority – Obligation to obtain the opinion of the competent authority before the administrative authority takes the decision to expel (Council Directive 64/221, Art. 9(1)) 2. Freedom of movement for persons – Derogations – Decision concerning the control of foreign nationals – Decision ordering expulsion – Examination and opinion procedure before the competent authority – Competent authority – Necessary condition – Duties performed in absolute independence – Appointment by the administrative authority which takes the decision to expel – Permissible (Council Directive 64/221, Art. 9(1))
1. Article 9(1) of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health must be interpreted as meaning that, save in cases of urgency, it prohibits the administrative authority from taking a decision ordering the expulsion of a Community national lawfully residing in the national territory, whether holding a residence permit or not required to hold one, before a competent authority has given its opinion.
2. Article 9(1) of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health does not preclude the competent authority required to give an opinion prior to a decision ordering expulsion from being appointed by the same administrative authority as takes the decision ordering expulsion, provided that the competent authority can perform its duties in absolute independence and is not subject to any control by the authority empowered to take the measures provided for in the directive, and that it follows a procedure enabling the person concerned, on the terms laid down by the directive, effectively to present his defence. It is for the national court to determine in each case whether those requirements have been met.

Citations:

Times 13-Dec-1995, Case C-174/94, C-175/94, [1995] EUECJ C-175/94

Links:

Bailii

Statutes:

Council Directive 64/221/EEC art 9

Immigration, European

Updated: 03 June 2022; Ref: scu.161380

Criminal proceedings against Sanz de Lera and others: ECJ 14 Dec 1995

Europa Articles 73b(1) and 73d(1)(b) of the Treaty, which prohibit restrictions on movements of capital between Member States and between Member States and non-member countries, on the one hand, and authorizing Member States to take all requisite measures to prevent infringements of national law and regulations, on the other, preclude national rules which make the export of coins, banknotes or bearer cheques generally subject to prior authorization but do not by contrast preclude a transaction of that nature being made conditional on a prior declaration.
Although the measures authorized by Article 73d(1)(b) include those designed to ensure effective fiscal supervision and to prevent illegal activities such as tax evasion, money laundering, drug trafficking and terrorism, the requirement of an authorization is not necessary for those purposes, which may be achieved by measures less restrictive of the free movement of capital. It is sufficient, rather than requiring an authorization, which has the effect of subjecting the free movement of capital to the discretion of the administrative authorities and is thus capable of making that freedom illusory, to set up an adequate system requiring a declaration indicating the nature of the operation envisaged and the identity of the declarant, which would require the competent authorities to proceed with a rapid examination of the declaration and enable them, if necessary, to carry out in due time the investigations found to be necessary to determine whether capital was being unlawfully transferred and to impose the requisite penalties if national legislation was being contravened, a course which would not suspend the operation concerned but would nevertheless enable the national authorities to carry out, in order to uphold public policy, effective supervision to prevent infringements of national law and regulations.
Moreover, rules requiring an authorization as a general principle do not fall within the scope of Article 73c1) of the Treaty, which authorizes, subject to certain conditions, restrictions on movements of capital between Member States and non-member countries where they involve direct investment, establishment, the provision of financial services or the admission of securities to capital markets because, on the one hand, the physical export of means of payment cannot itself be regarded as a capital movement of that kind, and on the other hand the rules apply to all exports of means of payment, including those which do not, in the non-member countries, involve such operations.
Article 73b(1), in conjunction with Articles 73c and 73d(1)(b), may be relied on before national courts and may render inapplicable national rules inconsistent therewith.

Citations:

C-163/94, [1995] EUECJ C-163/94

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 . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161372

CIA Security International v Signalson and Securitel: ECJ 30 Apr 1996

1. Under the procedure provided for by Article 177 of the Treaty, it is for the national court to assess the scope of national provisions and the manner in which they are to be applied. Since the national court is best placed to assess, in view of the particularities of the case, the need for a preliminary ruling in order to give its judgment, preliminary questions cannot be regarded as having become redundant as a result of national legislation being replaced by other legislation.
2. A national provision according to which only persons with prior ministerial authorization may operate a security firm does not constitute a technical regulation within the meaning of Article 1 of the Directive 83/189, laying down a procedure for the provision of information in the field of technical standards and regulations, in so far as such a provision merely lays down the conditions for the establishment of security firms and contains no specifications defining the characteristics of products.
On the other hand, provisions laying down the procedure for approval of alarm systems and networks which security firms may make available to consumers do constitute such technical regulations in so far as such provisions lay down detailed rules defining in particular the conditions concerning the quality tests and function tests which must be fulfilled in order for an alarm system or network to be approved and marketed in the national territory.
In the case of a rule which provides that the products in question may be marketed only after having being previously approved according to a procedure to be laid down by administrative regulation, classification of such a rule depends on its legal effects under domestic law. If, under domestic law, such a rule merely serves as a basis for enabling administrative regulations containing rules binding on the persons concerned to be adopted, so that by itself it has no legal effect for individuals, the rule does not constitute a technical regulation within the meaning of the directive. If, however, it obliges the undertakings concerned to apply for prior approval of their equipment, it must be classified as a technical regulation, even if the administrative rules envisaged have not been adopted.
3. Articles 8 and 9 of Directive 83/189, laying down a procedure for the provision of information in the field of technical standards and regulations, under which Member States must notify the Commission of all draft technical regulations covered by the directive and, except in particular urgent cases, suspend their adoption and implementation for specified periods, are to be interpreted as meaning that individuals may rely on them before the national court, which must decline to apply a national technical regulation which has not been notified in accordance with the directive.
First, by laying down a precise obligation on Member States to notify draft technical regulations before they are adopted, those provisions are unconditional and sufficiently precise in terms of their content. Secondly, an interpretation of the directive to the effect that breach of the obligation to notify constitutes a substantial defect such as to render the technical regulations in question inapplicable to individuals is such as to ensure the effectiveness of the preventive Community control for which the directive made provision in order to ensure that goods can move freely, which is what it was designed to do.
4. Article 30 of the Treaty does not preclude a national provision according to which only persons with prior ministerial authorization may operate a security firm. Since such a provision imposes a condition for the establishment and carrying on of business as a security firm, it does not fall within the scope of Article 30.

Citations:

C-194/94, [1996] EUECJ C-194/94, [1996] ECR I-2201

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Regina v Budimir and Another CACD 29-Jun-2010
The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had . .
Cited – British Telecommunications Plc and Another, Regina (on The Application of) v The Secretary of State for Business, Innovation and Skills Admn 20-Apr-2011
The claimant sought judicial review of legislative provisions requiring Internet Service Providers to become involved in regulation of copyright infringements by its subscribers. They asserted that the Act and proposed Order were contrary to . .
Lists of cited by and citing cases may be incomplete.

Media

Updated: 03 June 2022; Ref: scu.161387

Criminal proceedings against Ruiz Bernaldez: ECJ 28 Mar 1996

Europa In the preliminary-ruling procedure under 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. 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 sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action.
Article 3(1) of Directive 72/166 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, is to be interpreted as meaning that, without prejudice to the provisions of Article 2(1) of Directive 84/5 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, a compulsory insurance contract may not provide that in certain cases, in particular where the driver of the vehicle was intoxicated, the insurer is not obliged to pay compensation for the damage to property and personal injuries caused to third parties by the insured vehicle.
In view of the aim of ensuring protection, stated repeatedly in all the relevant directives, Article 3(1) of Directive 72/166, as developed and supplemented by the later directives, must be interpreted as meaning that compulsory motor insurance must enable third-party victims of accidents caused by vehicles to be compensated for all the damage to property and personal injuries sustained by them, without the insurer being able to rely on statutory provisions or contractual clauses to refuse such compensation. Any other interpretation would deprive that provision of its effectiveness, since it would have the effect of allowing Member States to limit payment of compensation to third-party victims of a road-traffic accident to certain types of damage, thus bringing about disparities in the treatment of victims depending on where the accident occurred, which is precisely what the directives are intended to avoid.
The compulsory insurance contract may, on the other hand, provide that in such cases the insurer is to have a right of recovery against the insured.

Citations:

Times 06-May-1996, C-129/94, [1996] EUECJ C-129/94, [1996] I ECR 1829

Links:

Bailii

Cited by:

Cited – Knight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
Cited – Churchill Insurance Company Ltd v Wilkinson and Others CA 19-May-2010
The various insured defendants had been driven in the insured vehicles by a non-insured driver. Suffering injury at the negligence of the driver, they recovered variously damages. Their insurance companies sought recovery of the sums paid from their . .
Cited – Bristol Alliance Ltd v Williams and Another QBD 1-Jul-2011
The driver had crashed into the insured’s building causing substantial damage. The court was asked which of the driver’s and building’s insurers should bear the costs. The driver’s insurers said that he had acted deliberately and therefore they were . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, European

Updated: 03 June 2022; Ref: scu.161349

The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Ecroyd Limited: ECJ 6 Jun 1996

The competent national authority had no duty under Regulation No 857/84, as amended by Regulation No 764/89, and in particular under Article 3a(1) thereof, to award a provisional special reference quantity exempt from the additional levy on milk to a producer who had obtained primary quota in respect of a separate holding and who, following the dissolution of a partnership in which it was a partner, took over the assets and business of the dissolved partnership and became sole operator of that partnership’ s holding while observing, without having formally undertaken to do so, the non-marketing undertaking previously given by that partnership, and, furthermore, the competent national authority had no power to do so.
To be eligible for a provisional special reference quantity under the relevant rules, the producer must not only have participated, either in that capacity or as successor to an agricultural holding, in a non-marketing scheme such as that established by Regulation No 1078/77, but must also not have obtained a reference quantity under the conditions laid down, inter alia, by Article 2 of Regulation No 857/84. Although the first condition must be regarded as having been satisfied by the producer in question, because the failure to perform a mere formality, such as the giving of a written undertaking to continue to perform the obligations entered into by its predecessor, cannot be regarded as causing the successor to an agricultural holding to be excluded from the non-marketing scheme, as would be the case if it had not in fact observed the non-marketing undertaking, the second condition is not satisfied where that producer has already obtained primary quota under Article 2 of Regulation No 857/84 in respect of the five farms on which it had continued milk production.
The fact that the Court held in its judgment in Case C-264/90 Wehrs v Hauptzollamt Lueneburg [1992] ECR I-6285 that the second indent of Article 3a(1) was invalid in so far as transferees of a premium granted pursuant to Regulation No 1078/77, to whom the producer in question is comparable, were barred from allocation of a special reference quantity if they had received a reference quantity under Article 2 of Regulation No 857/84, neither required nor empowered the competent national authority to award to that producer a special reference quantity, whether provisional or definitive, exempt from the additional levy on milk.
The conclusions which may be drawn in the national legal systems from a ruling of invalidity of a measure adopted by an institution depend, on any view, directly on Community law as it stands in the light of that ruling. In the presence of a complex system such as that of milk quotas, the relevant state of the law following the ruling of invalidity in the judgment in Wehrs and before the adoption of Regulation No 2055/93 did not of itself, that is to say without readjustment of that system, permit the allocation of a special reference quantity to such a producer.
2. The competent national authority had no duty under Regulation No 857/84, as amended by Regulation No 764/89 and Regulation No 1639/91, and in particular under the second indent of the last subparagraph of Article 3a(1) thereof, to award a special reference quantity exempt from the additional levy on milk to a producer who had commenced production on a holding as sub-tenant after the expiry of a non-marketing period under Regulation No 1078/77 before then becoming also owner of that holding subject to a lease granted to the tenant, nor did it have the power to do so, since that producer, even assuming that the holding had been transferred to him through an inheritance or similar means within the period laid down, could, as successor, claim such a quantity only on the same basis as the originator of the inheritance himself and since the rules in force did not permit the award of such a quantity to any of his predecessors.
The fact that the second indent of Article 3a(1) was declared invalid by the Court in its judgment in Case C-264/90 Wehrs [1992] ECR I-6285 in that it made the award of a reference quantity to a predecessor of the producer subject to a condition which precisely that predecessor did not fulfil, in no way altered the duty or power of the national authority to award a special reference quantity to that producer. That ruling of invalidity cannot by itself give rise, prior to the readjustment of the system of reference quantities which it made necessary, to a right of the predecessor to such a quantity.
The fact that Article 3a, as amended by Regulation No 1639/91, does not permit the award of a reference quantity to that producer does not constitute an infringement of the principle of protection of legitimate expectations, since, although he can invoke his status as successor, he cannot, in that capacity, lay claim to more than his predecessors, who could not claim the award of a special reference quantity.

Judges:

Edward P

Citations:

C-127/94, [1996] EUECJ C-127/94

Links:

Bailii

European, Agriculture

Updated: 03 June 2022; Ref: scu.161347

Birkenbeul v Hauptzollamt Koblenz: ECJ 28 Mar 1996

Judgment – Regulation No 3019/86 imposing a provisional anti-dumping duty on imports of standardized multi-phase electric motors and Regulation No 864/87 imposing a definitive anti-dumping duty on the same imports must be interpreted as applying only to imports of standardized multi-phase electric motors which are complete or finished.
That interpretation is supported, inter alia, by the fact that the Community authorities decided, in the interests of transparency and efficiency and in order to induce exporters to raise their prices, to impose a duty, in the form of a variable duty equal to the difference between a minimum price and the price to the first independent buyer, which, unlike an ad valorem duty, cannot be satisfactorily applied to incomplete motors or motor parts. It is not possible either to calculate the duty payable on an incomplete motor by reference to the difference between its price and the minimum price fixed for a complete motor, since the result would be to impose a higher duty on the incomplete motor than on the complete, or to make a specific calculation of the duty on the incomplete motor, since the regulation does not set any minimum prices for incomplete motors.

Citations:

C-99/94, [1996] EUECJ C-99/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161326

United Kingdom v Council of the European Union: ECJ 12 Nov 1996

A directive limiting the maximum work hours for all employees was validly made under art 118a as a Health and Safety measure.
LMA

  1. Measures appear initially to have derived from policies of job creation and increased employment.
  2. John Major’s government saw the initiatives (together with other provisions as part of Social Chapter) as measures which would lead to unemployment and expected an unsympathetic response from business organisations.
  3. Government opt-out of Social Chapter of Maastricht Treaty (TEU)
  4. Working Time Directive introduced some of provisions of Social Chapter in the guise of health and safety. The measures were adopted as a health and safety measure on the basis of Art.118a EC

What were the implications of this route to adoption?
Art.118aEC
(Council) Qualified majority voting – (European Parliament) Co-operation procedure – although the Council ultimately has the final say, it can only over-rule Parliament (and the Commission) if it acts unanimously) as opposed to
Art.100EC – (Council) unanimous voting – (European Parliament) Consultation procedure – this procedure requires that the Council consult the Parliament before it adopts an act. Parliament’s views must be considered but have no binding effect.
The UK challenged the Directive on various grounds

  1. Defective legal basis (lack of competence)
  2. Breach of the principle of proportionality
  3. Misuse of powers
  4. Infringement of an essential procedural requirements.

The ECJ concluded that the UK’s application was unfounded apart from one provision The ECJ annulled the second sentence of Art. 5 of the Council Directive concerning minimum rest periods to include Sundays – could not be justified on basis of health and safety measure. The ECJ dismissed the remainder of the UK’s application.

Citations:

Times 21-Nov-1996, C-84/94, [1997] IRLR 30, [1996] EUECJ C-84/94, [1997] ICR 443

Links:

Bailii

Statutes:

European Treaty Article 118a

Cited by:

Cited – Revenue and Customs v Stringer, Ainsworth and Others HL 10-Jun-2009
In each case, the employee had retired after long term sickness. The Employment tribunal had upheld their ability to claim arrears of sickness pay arising under the 1998 Regulations, as an unlawful deduction from their wages. They now appealed . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Health and Safety

Updated: 03 June 2022; Ref: scu.161312

Secretary of State for Social Security and Chief Adjudication Officer v Graham and others): ECJ 11 Aug 1995

The different pension ages for men and women, and to entitlement to associated invalidity benefits not discriminatory. Community law was not contravened by invalidity benefit being added to a pension.

Citations:

Times 25-Sep-1995, Ind Summary 09-Oct-1995, C-92/94, [1995] EUECJ C-92/94

Links:

Bailii

Statutes:

EC Treaty Article 177, Directive 79/7/EEC Article 7(1)(a)

Benefits, Discrimination, European

Updated: 03 June 2022; Ref: scu.161319