Category: European

Johnson v Chief Adjudication Officer: ECJ 11 Jul 1991

ECJ 1. Article 2 of Council Directive 79/7/EEC, on the progressive implementation of the principle of equal treatment for men and women in matters of social security, must be interpreted as meaning that the directive does not apply to a person who has interrupted his or her occupational activity in order to attend to the upbringing of his or her children and who is prevented by illness from returning to employment unless that person was seeking employment and his or her search was interrupted by the materialization of one of the risks specified in Article 3(1)(a) of the directive, it being unnecessary to make a distinction according to the reason for which that person left previous employment. It is for the national court to determine that the person relying on Directive 79/7 was actually seeking employment at the time when one of the risks specified in Article 3(1)(a) of the directive materialized.
2. Since the expiry of the period for the transposition of Directive 79/7 it has been possible to rely on Article 4 of the directive in order to have set aside national legislation which makes entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which has been abolished and which entailed a condition discriminating against female workers. In the absence of appropriate measures for implementing Article 4 of Directive 79/7, women placed at a disadvantage by the maintenance of the discrimination are entitled to be treated in the same manner and to have the same rules applied to them as men who are in the same situation, since, where the directive has not been implemented correctly, those rules remain the only valid point of reference.

Judges:

JC Moitinho de Almeida, P

Citations:

[1991] ECR I-3723, C-31/90, [1991] EUECJ C-31/90

Links:

Bailii

Cited by:

See Also – Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen ECJ 27-Oct-1993
Europa Community law does not preclude the application of a national rule of law according to which benefits for incapacity for work are payable no more than one year before the date of claim, in the case where . .
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 01 June 2022; Ref: scu.160431

Hauptzollamt Hamburg-Jonas v Werner Faust: ECJ 16 Oct 1991

Europa Agriculture – Common organization of the markets – Products processed from fruit and vegetables – Protective measures applicable to imports of preserved mushrooms – Levy of an additional amount – Products subject to the levy – Products released into free circulation without a valid import licence – Included – Common organization of the markets – Products processed from fruit and vegetables – Protective measures applicable to imports of preserved mushrooms – Levy of an additional amount – Fixed at a flat rate based on the cost of grade 1 preserved mushrooms produced in the Community – Disproportionate financial charge for importers of lower-grade products – Breach of the principle of proportionality – Unlawful

Citations:

C-24/90, [1991] EUECJ C-24/90

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160425

Masgio v Bundesknappschaft: ECJ 7 Mar 1991

ECJ Articles 48 to 51 of the Treaty and the legislation adopted in implementation thereof, which includes Article 3 of Regulation No 1408/71, prevent a worker from losing, as a consequence of the exercise of his right to freedom of movement, the advantages in the field of social security guaranteed to him by the laws of a single Member State, since such a consequence could deter workers from exercising that right and would therefore constitute an obstacle to that freedom. Those provisions must therefore be interpreted as meaning that a migrant worker who is receiving an old-age pension under the legislation of one Member State and accident insurance benefits paid by an insurance institution of another Member State may not be put in a worse position, for the purpose of calculating the portion of the benefit to be suspended pursuant to the legislation of the first State, than a worker who has not exercised his right of free movement and is receiving both benefits under the legislation of a single Member State. No justification for such inequality of treatment can be afforded by any practical difficulties which social security institutions may encounter when calculating entitlement to benefits.

Citations:

[1991] ECR I-1119, C-10/90, [1991] EUECJ C-10/90

Links:

Bailii

European, Benefits, Employment

Updated: 01 June 2022; Ref: scu.160415

Giagounidis v Reutlingen: ECJ 5 Mar 1991

Since an identity card serves only to prove the identity and nationality of its holder, Article 4(1) of Directive 68/360 must be interpreted as meaning that a Member State is required to recognize the right of residence within its territory of the workers referred to in Article 1 of that directive when they produce a valid identity card, even if that card does not authorize its holder to leave the territory of the Member State in which it was issued.
The fact that the identity card was issued before the accession to the Communities of the Member State which issued it, that it does not mention that its validity is limited to the national territory and, finally, that its holder was admitted to the host Member State upon production of his passport alone does not alter the situation.

Citations:

C-376/89, [1991] EUECJ C-376/89

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160402

Cotter and others v Minister for Social Welfare: ECJ 13 Mar 1991

Europa Article 4(1) of Council Directive 79/7/EEC, on the prohibition of all discrimination on grounds of sex in matters of social security, must be interpreted as meaning that if, after the expiry of the period allowed for implementation of the directive, married men have automatically received increases in social security benefits in respect of a spouse and children deemed to be dependants without having to prove actual dependency, married women without actual dependants are entitled to the same increases even if in some circumstances that will result in double payment of the increases to the same family.
Article 4(1) of Council Directive 79/7 must be interpreted as meaning that where a Member State has included in the legislation intended to implement that article, adopted after the expiry of the period allowed by the directive, a transitional provision providing for compensatory payments to married men who have lost their entitlement to an increase in their social security benefits in respect of a spouse deemed to be dependent because actual dependency cannot be shown to exist, married women in the same family circumstances are entitled to the same payments even if that infringes the prohibition on unjust enrichment laid down by national law.

Citations:

C-377/89, [1991] EUECJ C-377/89, [1991] ECR I-1155

Links:

Bailii

Cited by:

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

European, Discrimination

Updated: 01 June 2022; Ref: scu.160403

Criminal proceedings against Richardt: ECJ 4 Oct 1991

The existence, as a consequence of the Customs Union, of a general principle of freedom of transit of goods within the Community does not, as Article 10 of Regulation No 222/77 affirms, have the effect of precluding the Member States from verifying the nature of goods in transit, pursuant to the Treaty, in particular Article 36. That article authorizes the Member States to impose restrictions on the transit of goods on grounds of public security, which covers both a Member State’ s internal security and its external security, of which the latter manifestly requires to be taken into consideration in the case of goods capable of being used for strategic purposes.
Accordingly, the aforementioned regulation does not preclude the legislation of a Member State from requiring, on external security grounds, that special authorization must be obtained for the transit through its territory of goods described as strategic material, irrespective of the Community transit document issued by another Member State. However, the measures adopted by the Member State as a consequence of the failure to comply with that requirement must not be disproportionate to the objective pursued.

Citations:

[1991] ECR I-4621, C-367/89, [1991] EUECJ C-367/89

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, Customs and Excise

Updated: 01 June 2022; Ref: scu.160392

Piageme v Peeters: ECJ 18 Jun 1991

ECJ Article 14 of Directive 79/112 on labelling and presentation of foodstuffs, which requires Member States to prohibit the sale of such products within their territories if certain particulars ‘do not appear in a language easily understood by purchasers, unless other measures have been taken to ensure that the purchaser is informed’, requires only the prohibition of trade in products whose labelling is not easily comprehensible for the consumer, without imposing the obligation to use a particular language.
National legislation which, on the one hand, imposes a stricter obligation than the use of a language easily understood, such as, for example, exclusive use of a language of the linguistic region where the goods are marketed and, on the other hand, fails to acknowledge the possibility of ensuring that the consumer is informed by other means, goes beyond the requirements of that provision.
The obligation to use exclusively the language of the linguistic region is a measure having equivalent effect to a quantitative restriction on imports, prohibited by Article 30 of the Treaty.

Citations:

C-369/89, [1991] EUECJ C-369/89

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160394

Criminal proceedings against Di Pinto: ECJ 14 Mar 1991

ECJ 1. A trader canvassed with a view to the conclusion of an advertising contract concerning the sale of his business is not to be regarded as a consumer protected by Council Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises.
It follows from Article 2 of that directive that the criterion for the application of protection lies in the connection between the transactions which are the subject of the canvassing and the professional activity of the trader: the latter may claim that the directive is applicable only if the transaction in respect of which he has been canvassed lies outside his trade or profession. Acts which are preparatory to the sale of a business are connected with the professional activity of the trader; although such acts may bring the running of the business to an end, they are managerial acts performed for the purpose of satisfying requirements other than the family or personal requirements of the trader.
2. Directive 85/577 does not preclude national legislation on canvassing from extending the protection which it affords to cover traders acting with a view to the sale of their business.
Article 8 of that directive, which leaves Member States free to adopt or maintain more favourable provisions to protect consumers in the field covered by the directive, cannot be interpreted as precluding those States from adopting measures in an area with which it is not concerned, such as that of the protection of traders.

Citations:

C-361/89, [1991] EUECJ C-361/89, [1991] ECR I-1189

Links:

Bailii

European, Contract, Consumer

Updated: 01 June 2022; Ref: scu.160386

Giuseppe d’Urso, Adriana Ventadori and others v Ercole Marelli Elettromeccanica Generale SpA: ECJ 25 Jul 1991

Europa 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, businesses or parts of businesses is to be interpreted as meaning that all contracts of employment or employment relationships existing on the date of the transfer of an undertaking between the transferor and the workers employed in the undertaking transferred are automatically transferred to the transferee by the mere fact of the transfer. That transfer is binding on both the transferor and the transferee and on the employees’ representatives, who may not agree different arrangements in an agreement with the transferor or the transferee and on the employees themselves, save that the employees may freely decide not to continue the employment relationship with the new employer after the transfer.
Article 1(1) of Council Directive 77/187 does not apply to transfers of undertakings made as part of a creditors’ arrangement procedure of the kind provided for in the Italian legislation on compulsory administrative liquidation to which the Law of 3 April 1979 on special administration for large undertakings in critical difficulties refers. However, that provision of that directive does apply when, in accordance with a body of legislation such as that governing special administration for large undertakings in critical difficulties, it has been decided that the undertaking is to continue trading for as long as that decision remains in force.

Citations:

C-362/89, [1991] EUECJ C-362/89, [1992] ECR I-4105

Links:

Bailii

Statutes:

Directive 77/187 3(1)

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 – 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.160387

Newton v Chief Adjudication Officer: ECJ 20 Jun 1991

ECJ 1. In the case of persons who are or have been subject as employed or self-employed persons to the legislation of a Member State, an allowance provided for under the legislation of that Member State which is granted on the basis of objective criteria to persons suffering from physical disablement affecting their mobility and to the grant of which the persons concerned have a legally protected right must be treated as an invalidity benefit within the meaning of Article 4(1)(b) of Regulation No 1408/71.
2. Where an allowance for handicapped persons constitutes an invalidity benefit within the meaning of Article 4(1)(b) of Regulation No 1408/71, Article 10 of that regulation precludes the withdrawal of that benefit on the sole ground that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated.

Judges:

Mancini P

Citations:

C-356/89, [1991] EUECJ C-356/89

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160379

Mecanarte-Metalurgica da Lagoa v Alfandega do Porto: ECJ 27 Jun 1991

ECJ 1. The first subparagraph of Article 5(2) of Council Regulation No 1697/79 provides that the competent authorities may refrain from taking action for the post-clearance recovery of import or export duties which have not been collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter for his part having acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned.
The first part of that provision must be interpreted as meaning that it confers on the competent national authorities a non-discretionary power as regards the decision not to carry out post-clearance recovery of import duties when the abovementioned conditions have been fulfilled.
The errors referred to comprise all errors of interpretation or application of the provisions on import duties and export duties which could not reasonably have been detected by the person liable, in so far as they are the consequence of acts of either the authorities responsible for post-clearance recovery or the authorities of the exporting Member State, which excludes errors caused by incorrect declarations by the person liable, except in cases where their incorrectness is merely the consequence of incorrect information given by the competent authorities which is binding upon them.
The last part of the same provision must be interpreted as meaning that it applies to circumstances in which the person liable has fulfilled all the requirements laid down by both the Community rules on customs declarations and any national rules which supplement or implement them, even if he supplied, in good faith, incorrect or incomplete information to the competent national authorities, provided that that information is the only information which he could reasonably have knowledge of or obtain.
2. The power conferred on the Commission by Article 4 of Commission Regulation (EEC) No 1573/80 laying down provisions for the implementation of Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties does not cover decisions to effect post-clearance recovery. It is limited to decisions to refrain from carrying out post-clearance recovery where the amount of the duties involved is equal to or greater than ECU 2 000, even where a person liable has submitted a reasoned request directed against a decision to recover duties taken by the competent national authorities.
It follows that when the person liable submits a request that action for post-clearance recovery of import duties or export duties should not be taken, it is for the national authorities to take a decision on that request and it is not incumbent upon them to refer the case for consideration by the Commission unless they intend not to recover an amount of duties equal to or greater than ECU 2 000.
3. A national court which in a case concerning Community law declares a provision of national law unconstitutional does not lose the right or escape the obligation under Article 177 of the EEC Treaty to refer questions to the Court of Justice on the interpretation or validity of Community law by reason of the fact that such a declaration is subject to a mandatory reference to the constitutional court.
4. It is for the national court, pursuant to the second paragraph of Article 177 of the EEC Treaty, to decide whether the questions of law raised by the case before it are relevant, whether a preliminary ruling is necessary for it to be able to give judgment and at which stage of the proceedings a question must be referred to the Court for a preliminary ruling.

Citations:

C-348/89, [1991] EUECJ C-348/89

Links:

Bailii

Statutes:

Council Regulation No 1697/79 5(2), Commission Regulation (EEC) No 1573/80

European

Updated: 01 June 2022; Ref: scu.160373

Vlassopoulou v Ministerium fur Justiz, Bundes- u Europaangelegenheiten Baden-Wurttemberg: ECJ 7 May 1991

The authorities of a Member State when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a comparison between the qualifications certified by his diplomas, certificates and other formal qualifications and the professional qualifications required by the national rules for the exercise of the profession in question.

Citations:

C-340/89, [1991] ECR I-2357, [1991] EUECJ C-340/89

Links:

Bailii

Cited by:

Cited – Dr A Lambiris v The Specialist Training Authority of the Medical Royal Colleges and the General Medical Council, the Secretary of State for Health – Interested Parties CA 8-May-2003
The applicant challenged the failure to register him properly to reflect his specialism for which he had been qualified in Greece.
Held: The Directive set out principles for the recognition of medical qualifications within the Union. The Order . .
Cited – Dr A Lambiris v The Specialist Training Authority of the Medical Royal Colleges and the General Medical Council, the Secretary of State for Health – Interested Parties CA 8-May-2003
The applicant challenged the failure to register him properly to reflect his specialism for which he had been qualified in Greece.
Held: The Directive set out principles for the recognition of medical qualifications within the Union. The Order . .
Cited – Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano ECJ 30-Nov-1995
Practice by lawyers in other European jurisdictions were governed by the general principles of freedom of establishment under the Treaty: ‘National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by . .
Lists of cited by and citing cases may be incomplete.

European, Health Professions

Updated: 01 June 2022; Ref: scu.160365

Regina v Immigration Appeal Tribunal, ex parte Antonissen: ECJ 26 Feb 1991

ECJ The free movement of workers enshrined in Article 48 of the Treaty entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment. The period of time for which the person seeking employment may stay may be limited, but, in order for the effectiveness of Article 48 to be secured, persons concerned must be given a reasonable time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged. In the absence of a Community provision prescribing the amount of time, it is not contrary to Community law for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged. 2. A declaration recorded in the Council minutes at the time of the adoption of a provision of secondary legislation cannot be used for the purpose of interpreting that provision where no reference is made to the content of the declaration in the wording of the provision in question and the declaration therefore has no legal significance.
The Secretary of State had ordered that A, who had been convicted of drug offences, be deported pursuant to section 3(5)(b) of the Immigration Act 1971 having deemed his deportation to be conducive to the public good. Under paragraph 143 of H.C. 169 the Immigration Appeals Tribunal ruled that he could no longer be treated as a community worker, and rely on Council Directive (64/221/E.E.C.) of 25 February 1964 (relative to the movement and residence of foreign nationals restricted on grounds of public policy, public security or public health,) since he had not entered employment by the end of the six-month period. A had challenged this ruling before the Divisional Court which then asked the European Court whether for the purpose of determining whether a national of a Member State is to be treated as a ‘worker’ when seeking employment so as to be immune from deportation (save in accordance with Council Directive 64/221 E.E.C.) ‘the legislature of the second Member State may provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?’
Held: A person seeking employment was to be regarded as a ‘worker’ but it was not contrary to community law ‘for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory (subject to appeal) if he has not found employment there after six months, unless the person concerned provided evidence that he is continuing to seek employment and that he has genuine chances of being engaged.’

Citations:

[1991] ECR I-745, C-292/89, [1991] EUECJ C-292/89, [1991] 2 CMLR 373

Links:

Bailii

Statutes:

Immigration Act 1971 3(5)(b), Council Directive (64/221/E.E.C.) of 25 February 1964

Cited by:

Cited – Chief Adjudication Officer v Wolke; Remelien v Secretary of State for Social Security HL 13-Nov-1997
The claimant was an EC national who had become resident here but was not seeking work, since she cared for her children. The Secretary of State said that since she was not seeking work, she was not entitled to remain and should make arrangements to . .
Cited – Ali v Secretary of State for the Home Department CA 3-May-2006
The applicants sought asylum. Their child had a right of residence as a European citizen.
Held: The applicants could not rely upon their child’s right of residence to establish one for themselves. . .
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 01 June 2022; Ref: scu.160341

Dona Alfonso v Consorzio per lo sviluppo industriale del Comune di Monfalcone (Rec 1991,p I-2967,Summ pub ) (Judgment): ECJ 18 Jun 1991

Europa Article 29(5) of Council Directive 71/305, from which the Member States may not depart to any material extent when implementing it, prohibits Member States from introducing provisions which require the automatic disqualification from the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the directive, giving the tenderer an opportunity to furnish explanations.
The Member States may require that tenders be examined when those tenders appear to be abnormally low, and not only when they are obviously abnormally low.
(In this judgment the Court’ s ruling is in the same terms as those of the judgment in Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR I-1839, in which the questions referred to it were essentially the same.)

Citations:

C-295/89, [1991] EUECJ C-295/89

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160344

Commission of the European Communities v Italian Republic (Rec 1990,p I-4853) (Judgment): ECJ 13 Dec 1990

Europa Member States – Obligations – Implementation of directives – Failure – Justification – Not acceptable (EEC Treaty, Art. 169) A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in Community directives.

Citations:

C-240/89, [1990] EUECJ C-240/89

Links:

Bailii

Statutes:

EEC Treaty 169

European

Updated: 01 June 2022; Ref: scu.160316

Commission v Denmark: ECJ 22 Jun 1993

Opinion – Tesauro AG said: ‘where a public contract falls to be awarded, it is precisely because the procedure is a competition that it must be ensured that all those who take part have an equal chance; otherwise, it would no longer be a public tendering procedure but private bargaining. In sum, equal treatment underlies any set of rules governing procedures for the award of public contracts since it is the very essence of such procedures.’

Judges:

Advocate-General Tesauro

Citations:

C-243/89, [1993] ECR I-3553, [1993] EUECJ C-243/89

Links:

Bailii

Cited by:

Cited – Harmon CFEM Facades (UK) Limited v The Corporate Officer of The House of Commons TCC 28-Oct-1999
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering. . .
Lists of cited by and citing cases may be incomplete.

European, Administrative

Updated: 01 June 2022; Ref: scu.160318