Category: European

Kazim Kus v Landeshauptstadt Wiesbaden: ECJ 16 Dec 1992

1. The third indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Council of Association must be interpreted as meaning that a Turkish worker does not fulfil the requirement, laid down in that provision, of having been engaged in legal employment for at least four years, where he was employed on the basis of a right of residence conferred on him only by the operation of national legislation permitting residence in the host country pending completion of the procedure for the grant of a residence permit, even though his right of residence has been upheld by a judgment of a court at first instance against which an appeal is pending. 2. The first indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Council of Association must be interpreted as meaning that a Turkish national who obtained a permit to reside on the territory of a Member State in order to marry there a national of that Member State and has worked there for more than one year for the same employer under a valid work permit is entitled under that provision to renewal of his work permit even if at the time of determination of his application his marriage has been dissolved. 3. A Turkish worker who fulfils the requirements of the first or third indent of Article 6(1) of Decision No 1/80 of the EEC-Turkey Council of Association may rely directly on those provisions in order to obtain the renewal not only of his work permit but also of his residence permit, since the right of residence is indispensable to access to and engagement in paid employment. That conclusion cannot be invalidated by the consideration that, pursuant to Article 6(3) of Decision No 1/80, the procedures for applying paragraph (1) are to be established under national rules. Article 6(3) merely clarifies the obligation incumbent on Member States to take such administrative measures as may be necessary for the implementation of that provision, without empowering them to make conditional or restrict the application of the precise and unconditional right which it grants to Turkish workers.

Citations:

C-237/91, [1992] EUECJ C-237/91

Links:

Bailii

European, Immigration, Employment

Updated: 01 June 2022; Ref: scu.160781

Giorgio Pincherle v Commission of the European Communities: ECJ 22 Dec 1993

ECJ 1. It follows from Article 49 of the EEC Statute of the Court of Justice that interveners before the Court of First Instance are regarded as parties before that court. Accordingly, where an appeal is brought against the judgment of the Court of First Instance, Article 115(1) of the Rules of Procedure of the Court of Justice applies to those interveners, and they are therefore not required to submit a fresh application for leave to intervene before the Court of Justice in accordance with Articles 93 and 123 of the Rules of Procedure. 2. In providing that an official, his spouse and his dependants are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities, and that that ceiling is increased to 85% for certain services, Article 72(1) of the Staff Regulations establishes the maximum rate of reimbursement to which those covered by the Joint Sickness Scheme are entitled. For the remainder, that provision leaves it to the institutions to fix the reimbursement ceilings by agreement between them in the context of those rules, without prescribing any minimum thresholds. 3. In an appeal, a plea in law directed against a superabundant ground of a judgment of the Court of First Instance, the operative part of which is sufficiently based on other grounds, must be rejected.

Citations:

C-244/91, [1993] EUECJ C-244/91P

Links:

Bailii

European, Litigation Practice

Updated: 01 June 2022; Ref: scu.160784

Emsland-Starke v Oberfinanzdirektion Munchen: ECJ 1 Apr 1993

ECJ Common Customs Tariff – Tariff headings – Amylaceous product made up of native potato starch and neutralized potato starch ester – Classification under subheading No 1108 13 00 of the Combined Nomenclature

Citations:

[1993] ECR I-1857, C-256/91, [1993] EUECJ C-256/91

Links:

Bailii

European, Customs and Excise

Updated: 01 June 2022; Ref: scu.160790

Hewlett Packard v Directeur General des Douanes: ECJ 1 Apr 1993

Europa Article 5(2) of Regulation No 1679/79, which makes any waiver of post-clearance recovery of import or export duties by the competent customs authorities subject to the fulfilment of three conditions, must be interpreted in the light of the following considerations: Incorrect tariff information given to a trader other than the person liable for payment by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery does not, in the absence of a Community regulation ensuring that such information has the same legal significance in all the Member States, constitute ‘an error made by the competent authorities themselves’. On the other hand, such an error is made by the authorities competent to effect recovery, within the meaning of that provision, where, despite the number and size of the imports made by the person liable, those authorities raised no objection concerning the tariff classification of the goods in question, even though a comparison between the tariff heading declared and the explicit description of the goods in accordance with the indications of the nomenclature would have disclosed the incorrect tariff classification. In order to determine whether there has been ‘an error … which could not reasonably have been detected by the person liable’, account must be taken, in particular, of the nature of the error, of the experience of the trader and of the diligence shown by him. In that regard, it is appropriate to make clear: – that the need to adopt, in view of the divergences between the various Member States concerning the tariff classification of goods, a regulation definitively clarifying the tariff heading under which the goods are to be classified constitutes strong evidence of the complexity of the problem to be resolved; – that even an experienced trader may regard his customs declarations as correct where he relied, for the purposes of the tariff classification of the goods in question, on tariff information provided by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery to a company belonging to the same group as the person liable and where the tariff classification indicated in the customs declaration was not challenged for a relatively long period by the competent authorities; – that the requirement of diligence on the part of the trader concerned must be regarded as satisfied where the trader had no doubt, in view of the existence of tariff information supplied to a company belonging to the same group as the person liable, as to the correctness of the tariff classification of the goods in question; – that it is for the national court, having regard to the circumstances of the case, to establish whether, on the basis of this interpretation, the criteria for determining the extent to which the error that resulted in non-collection of the customs duties was capable of detection are satisfied.
The requirement that the person liable should have observed, in relation to his customs declaration, ‘all the provisions laid down by the rules in force’ must be regarded as satisfied where the trader, acting in good faith, declared the goods under an incorrect tariff heading, provided that the latter was clearly and explicitly indicated together with the description of the goods in question, so that the competent customs authorities should have been able immediately and unequivocally to determine the lack of conformity with the correct tariff heading. 2. Article 13 of Regulation No 1430/79, which empowers the competent authorities to repay or remit import and export duties in special situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, must be interpreted in the light of the following considerations: The fact that a trader has relied on incorrect information supplied to a company belonging to the same group as the person liable by a competent customs authority in a Member State other than that of the customs authority competent to effect post-clearance recovery may constitute a special situation of the kind referred to in that article. It is for the national court to establish whether both the other preconditions for the application of Article 13, namely the absence of obvious negligence or deception and due compliance with procedural rules, have been satisfied. The question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1679/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation No 1430/79, and therefore the conditions laid down by the latter provision must be assessed in the light of those laid down in Article 5(2) of Regulation No 1679/79.

Citations:

C-250/91, [1993] EUECJ C-250/91

Links:

Bailii

European, Customs and Excise

Updated: 01 June 2022; Ref: scu.160788

Coloroll Pension Trustees v Russell and others (Judgment): ECJ 28 Sep 1994

The trustees of a pension fund have the same equal treatment obligations as do employers. The effect of the judgment in Barber was that: ‘i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male and female pension benefits to be provided at different retirement ages;
ii) A scheme could be amended so as to equalise benefits for men and women, if the rules of the scheme permitted such amendment. The nature of the amendment could either reduce the normal male retirement age, or increase the normal female retirement age, or both; provided that both sexes were treated equally;
iii) For pensionable service between 17 May 1990 and the operative date of any valid amendment male members of a pension scheme were entitled to be treated as if their normal retirement age was the same age as that applicable to female members (usually 60). This period is known, in the jargon, as ‘the Barber window’.’

Citations:

Times 30-Nov-1994, C-200/91, [1994] EUECJ C-200/91, [1994] OPLR 179

Links:

Bailii

Citing:

Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .

Cited by:

Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 01 June 2022; Ref: scu.160755

Commission v Belgium C-211/91: ECJ 16 Dec 1992

ECJ (Judgment) 1. By prohibiting cable television companies from broadcasting on their networks programmes from radio or television broadcasting stations in other Member States, where the programmes are not transmitted in the language or one of the languages of the Member State in which the station is established, a Member State is in breach of its obligations under Article 59 of the Treaty.
Such a restriction, which is discriminatory in that it is not applicable to services without distinction as regards their origin, cannot be brought within any of the grounds for exemption from the freedom to provide services permitted by Community law, that is to say those laid down in Article 56 of the Treaty.
2. While it is true that a Member State cannot be denied the right to take measures to prevent a provider of services whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 of the Treaty for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that State, it does not follow that it is permissible for a Member State to prohibit altogether the provision of certain services by operators established in other Member States.

Citations:

[1992] ECR I-6757, [1992] EUECJ C-211/91

Links:

Bailii

European, Media

Updated: 01 June 2022; Ref: scu.160762

Ann Watson Rask and Christensen v ISS Kantineservice A/S: ECJ 12 Nov 1992

Europa Article 1(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses is to be interpreted as meaning that the directive may apply in a situation in which one businessman, by a contract, assigns to another businessman responsibility for running a facility for staff, which was formerly managed directly, in return for a fee and various advantages, details of which are laid down by the agreement between them.
Article 3 of Directive 77/187 is to be interpreted as meaning that that upon a transfer the terms and conditions of the contract of employment or employment relationship relating to wages, in particular those relating to the date of payment and the composition of wages, cannot be altered even if the total amount of the wages remains the same. The directive does not, however, preclude an alteration of the employment relationship with the new employer in so far as the applicable national law allows such an alteration to be made in situations other than the transfer of an undertaking. Furthermore, the transferee is also bound to continue to observe the terms and conditions of employment agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Citations:

C-209/91, [1992] EUECJ C-209/91, [1992] ECR I-5755

Links:

Bailii

Statutes:

Directive 77/187 1(1)

Cited by:

Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 01 June 2022; Ref: scu.160760

Koua Poirrez v Caisse d’allocations familiales de la Seine-Saint-Denis: ECJ 16 Dec 1992

ECJ (Judgment) Articles 7 and 48(2) of the Treaty and the regulations adopted to implement those provisions are applicable only in situations which come within a field to which Community law applies, in this case that of freedom of movement for workers, and therefore cannot be applied to situations all the elements of which are purely internal to a single Member State. For that reason a member of the family of a worker who is a national of a Member State cannot rely on Community law in order to claim one of the social security advantages granted to migrant workers and members of their families, when the worker of whose family he is a member has never exercised the right to freedom of movement within the Community.

Citations:

[1992] ECR I-6685, [1992] EUECJ C-206/91

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160757

Beaulande v Directeur des services fiscaux de Nantes: ECJ 16 Dec 1992

ECJ Judgment – Although Article 33 of the Sixth Directive prohibits the maintenance or introduction of taxes which have the essential characteristics of VAT, with a view to preventing the introduction of taxes, duties and charges which, through being levied on the movement of goods and services in a way comparable to VAT, would jeopardize the functioning of the common system of VAT, it does not preclude the maintenance or introduction of other kinds of taxes, duties or charges, and in particular stamp duties, which do not have those characteristics.
It follows that the aforesaid provision must be interpreted as meaning that it does not preclude the introduction or maintenance of a national tax such as French stamp duty charged on the acquisition of building land in the event of a breach of the undertaking to build within the time-limit set by the relevant legislation. That duty is not a general tax; it is not applied at the different stages of a production and distribution process since it is charged only when the real estate passes into the ownership of the final consumer; it is not deductible from duty of the same kind paid on subsequent conveyances and the levying of the duty does not take account of the added value but is based on the full value of the property.

Citations:

C-208/91, [1992] EUECJ C-208/91

Links:

Bailii

European, VAT

Updated: 01 June 2022; Ref: scu.160759

William Cook plc v Commission of the European Communities (Rec 1993,p I-2487) (SV93-201) (Judgment): ECJ 19 May 1993

Europa 1. The Court has consistently held that persons other than those to whom a decision is addressed may claim to be concerned within the meaning of the second paragraph of Article 173 only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. Where, without initiating the procedure under Article 93(2), the Commission finds, on the basis of Article 93(3), that a State aid is compatible with the common market, the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations which, as parties concerned, benefit from procedural guarantees when the Article 93(2) procedure is set in motion, must have the right to bring an action for the annulment of the decision making that finding. 2. The procedure under Article 93(2) is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. The Commission may restrict itself to the preliminary examination under Article 93(3) when taking a decision in favour of an aid only if it is able to satisfy itself after the preliminary examination that the aid is compatible with the Treaty. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to obtain all the requisite opinions and for that purpose to initiate the procedure provided for in Article 93(2). Although the obligation to initiate that procedure does not depend on the circumstances in which the aid is notified or on the provision of Article 92 of the Treaty which is applied, it is for the Commission to determine, subject to review by the Court, on the basis of the factual and legal circumstances of the case, whether the difficulties involved in assessing the compatibility of the aid warrant the initiation of that procedure.

Citations:

C-198/91, [1993] EUECJ C-198/91

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160753

Forafrique Burkinabe v Commission: ECJ 29 Apr 1993

1. Privileges and immunities of the European Communities – Attachment order issued against an institution – Need for lifting of immunity by the Court or waiver by the institution concerned
(Protocol on the Privileges and Immunities of the European Communities, Art. 1)
2. Non-contractual liability – Conditions – Non-compliance with an attachment order under national law – Immunity not lifted by the Court or waived – Excluded
(EEC Treaty, Art. 215, second para.; Protocol on the Privileges and Immunities of the European Communities, Art. 1)
3. International agreements – First ACP-EEC Lome Convention – Provisions relating to financial and technical cooperation – Procedure for awarding public contracts for works and supplies – Respective roles of the ACP State and the Commission – Competence of the ACP State to conclude contracts – Liability of the Community by reason of payment of funds, under the conditions prescribed, to the ACP State concerned – Excluded
(EEC Treaty, Art. 215, second para.; First ACP-EEC Lome Convention of 28 February 1975)

Citations:

[1993] ECR I-2161, [1993] EUECJ C-182/91

Links:

Bailii

Jurisdiction:

European

European

Updated: 01 June 2022; Ref: scu.160739

Sonntag v Waidmann, Waidmann and Waidmann: ECJ 21 Apr 1993

Europa 1. A claim for compensation for loss to an individual resulting from a criminal offence, even though made in the context of criminal proceedings, is civil in nature unless the person against whom it is made is to be regarded as a public authority which acted in the exercise of its powers. That is not the case where the activity called in question is the supervision by a state-school teacher of his pupils during a school trip. It follows that ‘civil matters’ within the meaning of the first sentence of the first paragraph of Article 1 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters covers a claim for damages brought before a criminal court against a state-school teacher who, during a school trip, occasioned loss to a pupil as a result of a culpable and unlawful breach of his duties of supervision, even where there is coverage by a scheme of social insurance under public law. 2. The second paragraph of Article 37 of the Convention must be interpreted as precluding any appeal by interested third parties against the judgment given on an appeal against authorization to enforce a judgment given in another Contracting State, even where the domestic law of the State in which enforcement is sought confers on such third parties a right of appeal. 3. Since non-recognition of a judgment given in another Contracting State for the reasons set out in Article 27(2) of the Convention is possible only where the defendant was in default of appearance in the original proceedings, that provision may not be relied upon where the defendant appeared. A defendant is deemed to have appeared for the purposes of Article 27(2) of the Convention where, in connection with a claim for damages made in the context of the criminal proceedings pending before the criminal court, the defendant, through defence counsel of his own choice, answered the criminal charges at the trial but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel.
A claim was made by the parents and brother of a pupil who suffered a fatal accident during a school trip. One of the questions referred to the ECJ was whether an action for damages against a teacher in a state school was a ‘civil’ matter within the meaning of the first sentence of the first paragraph of Article 1 of the Brussels Convention.
Held: ‘It follows from the judgments in the LTU and Ruffer cases cited above that such an action falls outside the scope of the Convention only when the author of the damage against whom it is brought must be regarded as a public authority which acted in the exercise of public powers.’ A teacher in a school is not exercising public powers. The substantive duties on a teacher were, so far as concerned the standards of care in relation to the pupils, identical to those owed by all individuals, state employees or not, to those in their care. It followed that the action was a civil matter within the meaning of the Convention.

Citations:

Ind Summary 24-May-1993, C-172/91, [1993] EUECJ C-172/91, [1993] ECR 1-1963

Links:

Bailii

Statutes:

Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters

Cited by:

Cited – Grovit v De Nederlandsche Bank Nv and Others CA 24-Jul-2007
The claimants sought damages in defamation in respect of a letter faxed by the first defendant to the other defendants in London. The first defendant said that it had state immunity, and the other claimed similar benefits acting as the bank’s . .
Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Updated: 01 June 2022; Ref: scu.160734

Krohn v Hauptzollamt Hamburg-Jonas: ECJ 16 Dec 1992

ECJ The last sentence of Article 1 of Regulation No 482/74 on the classification of goods under subheading No 23.04 B of the Common Customs Tariff must be interpreted as meaning that the products resulting from the extraction of maize oil fall under that subheading even when they contain, in addition to the residues resulting from the extraction of oil from the actual maize germs, other substances deriving in particular from the whole of the maize plant, other cereals or soya, in so far as those substances extraneous to maize grain are present in very small quantities and it is established that it is technically impossible to avoid their presence under normal conditions of production, processing, transport, transshipment and storage, save by incurring cost disproportionate to the commercial value of the derived products in question. Since the Community legislature has not set a maximum permitted level for matter extraneous to maize grains, it is for the national court, in resolving the case before it, to fix the permissible level of such matter.

Citations:

[1992] ECR I-6661, [1992] EUECJ C-194/91

Links:

Bailii

European, Customs and Excise

Updated: 01 June 2022; Ref: scu.160750

Oorburg and van Messem v Wasser- und Schiffahrtsdirektion: ECJ 31 Mar 1993

ECJ Article 76 of the Treaty, which is intended by means of a standstill clause to prevent the introduction by the Council of a common transport policy from being rendered more difficult, or from being obstructed, by the adoption, without the Council’ s agreement, of national measures the direct or indirect effect of which is to alter unfavourably the situation in a Member State of carriers from other Member States in relation to national carriers, does not preclude a Member State from making navigation on its national inland waterways conditional upon the possession of a master’ s certificate for inland navigation issued in accordance with national law.
It does however preclude the national legislative provisions or administrative practices governing masters’ certificates for inland navigation when the Treaty entered into force from being amended or changed in a manner unfavourable to carriers of other Member States. It is for the national court to decide whether any such change has taken place.

Judges:

CN Kakouris, P

Citations:

C-184/91, [1993] EUECJ C-184/91

Links:

Bailii

European, Transport

Updated: 01 June 2022; Ref: scu.160741

Konstantinidis v Stadt Altensteig and Landratsamt Calw (Judgment): ECJ 30 Mar 1993

There is nothing in the Treaty to preclude a Member State which uses the Roman alphabet from transcribing a Greek name in Roman characters in its registers of civil status. Where it undertakes such transcription, it is for that State to adopt legislative or administrative measures laying down the detailed rules for such transcription, in accordance with the prescriptions of any international conventions relating to civil status to which it is a party. Such rules are to be regarded as incompatible with Article 52 of the Treaty only in so far as their application causes a Greek national such a degree of inconvenience as in fact to interfere with his freedom to exercise the right of establishment enshrined in that article. Such interference occurs if a Greek national is obliged by the legislation of the State in which he is established to use, in the pursuit of his occupation, a spelling of his name derived from the transliteration used in the registers of civil status if that spelling is such as to modify its pronunciation, with the risk that potential clients may confuse him with other persons.

Citations:

C-168/91, [1993] EUECJ C-168/91

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160731

Cebag v Commission: ECJ 11 Feb 1993

ECJ (Judgment) 1. Pursuant to Regulation No 3972/86 on food-aid policy and food-aid management, such aid is supplied on the basis of contractual undertakings between the Commission and the successful tenderers. The relationship between successful tenderers and the Commission cannot be held to be governed entirely by regulatory provisions, particularly in view of the fact that the price of the supplies is a function of the tenderer’ s bid and its acceptance by the Commission. Since the regulations forming the basis for a tendering procedure provide for supplies to be effected pursuant to Regulation No 2200/87 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid, a clause referred to in Article 23 of that regulation, whereby the Court is competent to judge any dispute resulting from the carrying out, or the failure to carry out, or from the interpretation of provisions concerning supply operations pursuant to the said regulation, forms an integral part of supply contracts and must therefore be regarded as an arbitration clause within the meaning of Article 181 of the Treaty.
2. Regulation No 2200/87 laying down general rules on the mobilization in the Community of products to be supplied as Community food aid does not allow the Commission to make deductions for late delivery from payment for the supply of food aid. The fact that, prior to the Court declaring such practice illegal, a tenderer did not object to the deductions made by the Commission may not serve as justification, in the absence of waiver or time-limitation, for a refusal to refund the deductions and pay interest as provided for in the said regulation.

Citations:

C-142/91, [1993] EUECJ C-142/91

Links:

Bailii

Statutes:

Regulation No 3972/86

European

Updated: 01 June 2022; Ref: scu.160713

Katsikas and others v Konstantinidis and others: ECJ 16 Dec 1992

ECJ Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings is to be interpreted as not precluding an employee of the transferor on the date of the transfer of the undertaking, within the meaning of Article 1(1) of the directive, from objecting to the transfer of his contract of employment or employment relationship to the transferee. The directive does not, however, require Member States to provide that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, the contract or relationship should be maintained with the transferor. Neither does the directive preclude this. In such a case, it is for the Member States to determine what the fate of the contract of employment or employment relationship with the transferor should be.
The expression ‘laws, regulations or administrative provisions’ within the meaning of Article 7 of Council Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings must be understood as meaning the laws, regulations or administrative provisions of a Member State as they are interpreted by the courts of that State.
The claimant employees objected to becoming employees of the transferee, an attitude which the transferor (who then dismissed them) argued was not open to them in the light of the Directive.
Held: The Directive did not have the purpose or effect of compulsorily transferring an employee’s employment contract or relationship against his or her will, but that, in such a case, it was for the law of the relevant Member State to determine whether the contract or relationship was to be regarded as terminated by the transferor or transferee or to be maintained with the transferor.

Citations:

C-132/91, [1992] EUECJ C-132/91, [1992] ECR I – 6577, [1993] IRLR 179, C-138/91, C-139/91

Links:

Bailii

Cited by:

Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Cited – Senior Heat Treatment Ltd v Bell and others EAT 20-Jun-1997
The employer appealed a finding as to the period of continuous employment of the claimants. Before a transfer of the undertaking to the employer, the former emloyer had paid redundancy payments to several employees, some whom in practice left to . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 01 June 2022; Ref: scu.160708

Neath v Steeper: ECJ 22 Dec 1993

The use of differing actuarial factors by sex, is not a breach of the EC directive.
Europa 1. Social policy – Male and female workers andordm; Equal pay Applicability to private occupational pension schemes andordm; Finding in the judgment of 17 May 1990 in Case C-262/88 Barber andordm; Effects limited to benefits payable in respect of periods of service subsequent to the date of that judgment andordm; Limitation also covering the value of transfer benefits and lump-sum options (EEC Treaty, Art. 119) 2. Social policy andordm; Male and female workers andordm; Equal pay andordm; Pay andordm; Concept andordm; Employers’ contributions paid under funded defined-benefit occupational pension schemes andordm; Excluded (EEC Treaty, Art. 119)

Citations:

Times 21-Jan-1994, C-152/91, [1993] EUECJ C-152/91

Links:

Bailii

Statutes:

EEC Treaty 119

Discrimination, European

Updated: 01 June 2022; Ref: scu.160720

Criminal proceedings against Aguirre Borrell and others (Rec 1992,p I-3003) (Judgment): ECJ 7 May 1992

Europa Articles 52 and 57 of the Treaty must be interpreted as meaning that: – in the absence of a directive on the mutual recognition of diplomas, certificates or other evidence of formal qualifications relating to the profession of estate agent, the authorities of a Member State, in response to a request for permission to practice that profession from a national of another Member State who holds a diploma or qualification relating to the pursuit of that profession in his State of origin, must assess the extent to which the knowledge and skills certified by the diplomas or professional qualifications obtained by the person concerned in his State of origin correspond to those required by the rules of the host State; – where there is only partial equivalence between the diplomas or qualifications, the authorities of the host State are entitled to require the person concerned to show that he has acquired the knowledge and skills which are lacking by requiring him to pass an examination if necessary; – the decision to deny a national of another Member State recognition or equivalent treatment of the diploma or professional qualification awarded to him by the Member State of which he is a national must be capable of being the subject of judicial proceedings in which its legality under Community law can be reviewed and the person concerned must be able to ascertain the reasons for the decision taken.
Subject to the obligation on the part of the authorities of the host State, in the absence of a directive on the mutual recognition of diplomas, certificates or other evidence of formal qualifications relating to a regulated profession, to examine whether the diploma or professional qualification awarded by another Member State to a Community national is equivalent to the diploma or qualification required by the legislation of the first State, and to the requirement that the examination procedure must fulfil certain conditions with regard, in particular, to the statement of reasons for an adverse decision and the remedies available against such a decision, Articles 52 and 57 of the Treaty do not preclude a Member State from imposing criminal penalties in respect of the pursuit of that regulated profession by a national of another Member State who does not fulfil the conditions laid down by the legislation of the host Member State.

Citations:

C-104/91, [1992] EUECJ C-104/91

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European

Updated: 01 June 2022; Ref: scu.160686

ENU v Commission: ECJ 16 Feb 1993

ECJ 1. Under the second paragraph of Article 53 of the EAEC Treaty, any implied or express act adopted by the Supply Agency established by that Treaty, in the exercise of its right of option or its exclusive right to conclude contracts for the supply of ores and nuclear fuels, may be referred by any concerned party to the Commission, which must take a decision within a period of one month.
Even though addressed to the Agency, such a decision is of direct and individual concern, within the meaning of the second paragraph of Article 146 of the Treaty, to the person who has referred it to the Commission, with the result that if the Commission fails to take a decision, the person concerned must be given judicial protection for the right he has, under the second paragraph of Article 53, to bring the matter before the Court by way of an action under Article 148 of the Treaty for failure to act.
The request for action which that provision requires may be addressed to the Commission at the same time as the decision of the Agency is referred to it under the second paragraph of Article 53.
2. Where a uranium-producing undertaking which has problems in disposing of its production has requested the Supply Agency established by the EAEC Treaty to exercise its right of option under Article 57 of the Treaty and has received no reply other than an assurance that efforts will be made to find a solution to its problem, this must be treated as an implied refusal on the part of the Agency. Once that refusal had been referred to it under the second paragraph of Article 53 of the Treaty, the Commission was under an obligation to take a decision within a period of one month. Having failed to do so, it was in breach of that provision.

Citations:

C-107/91, [1993] EUECJ C-107/91

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European

Updated: 01 June 2022; Ref: scu.160689

Licensing Authority South Eastern Traffic Area v British Gas plc: ECJ 25 Jun 1992

Europa The derogation from the requirement to install and use a tachograph in vehicles registered in a Member State which are used for the carriage of passengers or goods by road, laid down for vehicles used in connection with the gas service under Article 3(1) of Regulation No 3821/85 on recording equipment in road transport in conjunction with Article 4(6) of Regulation No 3820/85 on the harmonization of certain social legislation relating to road transport, applies solely to vehicles used, at the relevant time, for carriage wholly and exclusively in connection with the production, transport or distribution of gas, or the maintenance of the necessary installations for that purpose. However, that derogation does not apply to vehicles wholly or partly used at the relevant time in connection with the carriage of domestic gas appliances.
‘In that respect it is apparent from the list in Article 4(6) that the services envisaged by that provision are all general services performed in the public interest.’ and ‘The derogation from the requirement to install and use a tachograph . . . applies solely to vehicles used, at the relevant time, for carriage wholly and exclusively in connection with the production, transport or distribution of gas, or the maintenance of the necessary installations for that purpose. However, that derogation does not apply to vehicles wholly or partly used at the relevant time in connection with the carriage of domestic gas appliances.’

Citations:

C-116/91, [1992] ECR I-4071, [1992] EUECJ C-116/91

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Cited – Vehicle Inspectorate v Bruce Cook Road Planing Ltd and Another HL 8-Jul-1999
The transport of motorway maintenance vehicles and plant to and from sites on the back of a low loader is not sufficiently closely connected with the use of such machines on the motorways, to attract exemption as for such use from the general . .
Lists of cited by and citing cases may be incomplete.

European, Road Traffic

Updated: 01 June 2022; Ref: scu.160695

Herbrink v Minister van Landbouw, Natuurbeheer en Visserij: ECJ 27 Jan 1994

ECJ 1. In construing a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaty and the general principles of Community law.
2. Under Article 3a(1) of Regulation No 1546/88, as inserted by Regulation No 1033/89, the grant pursuant to Article 3a(1) of Regulation No 857/84, as amended by Regulation No 764/89, of a special reference quantity to a producer bound, during the reference year, by a non-marketing undertaking given pursuant to Regulation No 1078/77 presupposes that he is able to prove that he is still operating, in whole or in part, the same holding as that which he operated at the time of the grant to him of the premium to which he was entitled by reason of the aforementioned undertaking. The intention underlying the imposition of that condition by Article 3a(1) of Regulation No 1546/88 was to enshrine, with regard to the allocation of special reference quantities, the general principle that every reference quantity is to remain attached to the land in respect of which it is allocated; that principle is also put into effect by Article 3a(1)(a) of Regulation No 857/84.
However, its application does not exclude that of Article 7(4) of Regulation No 857/84, nor that of subparagraph (4) of the first paragraph of Article 7 of Regulation No 1546/88, by virtue of which Member States are authorized, by way of exception to the general principle set out above, to put a reference quantity at the disposal of a lessee who intends to continue milk production following the expiry of a non-renewable lease, so that the legitimate expectations of producers having the status of lessees who have entered into a non-marketing undertaking cannot be said to be prejudiced.
3. Article 3a of Regulation No 857/84, relating to the grant of special reference quantities to producers bound, during the reference year, by a non-marketing undertaking given pursuant to Regulation No 1078/77, is to be interpreted as meaning that it does not preclude the allocation of a special reference quantity following the reletting of a holding to the former producer, who was the initial lessee, in collaboration with other persons, and that that association or group of persons is to be regarded as a producer within the meaning of Articles 3a and 12(c) of Regulation No 857/84 and thus as the person entitled to the special reference quantity.
4. Notwithstanding that Regulation No 857/84, in the version resulting from Regulation No 764/89, does not provide for the retroactive remission of the additional levy on milk in favour of producers who are bound, during the reference year, by a non-marketing undertaking given pursuant to Regulation No 1078/77 and who no longer fulfil the conditions for the grant of a special reference quantity at the time of lodging their request, that regulation does not constitute a breach of the principle of the protection of legitimate expectations, nor of the prohibition against discrimination laid down by Article 40(3) of the Treaty.
First, the principle of the protection of legitimate expectations does not preclude the Community rules from imposing conditions which are inherent in any scheme which seeks to limit agricultural production by establishing a system of quotas, in so far as that scheme does not specifically affect a class of producers by reason of the non-marketing undertakings given by them. A producer could not legitimately expect to resume production on the expiry of the non-marketing period without being liable to a levy under the scheme previously introduced by Regulation No 856/84, as long as he had not obtained a reference quantity exempt from that levy. Consequently, a producer who did not ultimately fulfil the conditions for the allocation of a reference quantity at the time when he resumed production could not expect to be exempted retroactively from the additional levy.
Secondly, the difference in the treatment of the producers concerned, who are unable to benefit from a retroactive remission of the additional levy, is justified, because Regulation No 764/89 seeks, by removing the burden of the past constituted by levies due or already paid, to facilitate the resumption of production by producers who are effectively entitled to claim the grant of a special reference quantity. That objective has no relevance in the case of producers excluded from the allocation of a special quantity.

Citations:

[1994] ECR I-223, [1994] EUECJ C-98/91

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European

Updated: 01 June 2022; Ref: scu.160683

Bosman v Commission: ECJ 27 Jun 1991

ECJ Although the issue of the admissibility of the main application should not, in principle, be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case, none the less, if the the manifest inadmissibility of the main application is pleaded, it is for the judge hearing the application for interim measures to establish that the main application reveals prima facie grounds for concluding that there is a certain probability that it is admissible.

Citations:

C-117/91, [1991] EUECJ C-117/91R

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European

Updated: 01 June 2022; Ref: scu.160696