Category: European

Commission v Greece: ECJ 18 Apr 1991

Judgment – A Member State is in breach of its obligations under Article 95 of the EEC Treaty if, in connection with value added tax, it applies to spirits a system of differentiated rates arranged so that all products produced domestically fall within the most favourable tax category, whereas imported products, in respect of which there is no national production, fall, with a few exceptions, under the most heavily taxed category.
With regard to Article 95, there is either a similarity between, or sufficiently marked characteristics common to, spirits such as to enable it to be said that they are at least partly or potentially in competition.
As far as the possible degree of substitution between beverages is concerned, it is immaterial that those benefiting from the favourable rate are regarded as traditional national drinks and consumed extensively in the country concerned, whereas those taxed more heavily are regarded by the consumer as luxury products. For the purpose of measuring the possible degree of substitution it is impossible to restrict oneself to consumer habits in a Member State or in a given region. Those habits, which are essentially variable in time and space, cannot be considered to be immutable; the tax policy of a Member State must not therefore serve to crystallize given consumer habits with a view to consolidating an advantage acquired by national industries concerned to comply with them.

Citations:

C-230/89, [1991] EUECJ C-230/89

Links:

Bailii

Statutes:

EEC Treaty 95

European, VAT

Updated: 01 June 2022; Ref: scu.160311

Foster and others v British Gas plc: ECJ 12 Jul 1990

The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. The statutory objective set was the development and maintenance of an efficient, co-ordinated and economical supply of gas for Great Britain. In conjunction with the Secretary of State it was to settle a research programme into matters which affected the supply of gas. Additionally, the Secretary of State had power to require BGC to report to him and comply with any directions he might give. The court asked whether British Gas was part of the State before it was privatised?
Held:

  • [A Directive] may be relied upon in a claim for damages against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relation to individuals
  • ECJ has jurisdiction in proceedings for a preliminary ruling to determine the categories of person against whom the provisions of a directive may be relied on. It is for the national courts . . to decide whether a party to proceedings before them falls within one of the categories so defined.
  • must provide a public service pursuant to a measure adopted by the State
  • must be a public service under the control of the State
  • must have for that purpose special powers beyond those which result from the normal rules applicable in relation to individuals All criteria were satisfied in this case. All criteria were important.
    The HL had held the British Gas Corporation (before privatisation) met the criteria of the ECJ for defining an emanation of state and that British Gas was bound by vertical direct effect.
    It had been held in a series of cases that provisions of a European directive could be relied on against organisations and bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals. Reference was made to a number of its decisions to illustrate this point.
    Held: ‘It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.’
    ECJ 1. Unconditional and sufficiently precise provisions of a directive may be relied upon against organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable in relations between individuals. They may in any event be relied upon against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.
    2. Article 5(1 ) of Directive 76/207 on equal treatment for men and women as regards access to employment and working conditions is a provision which is unconditional and sufficiently precise to be relied on by an individual and to be applied by the national courts.

    • Judges:

    Sir Gordon Slynn, P

    Citations:

    [1991] 2 WLR 258, [1990] 2 CMLR 833, 2 CMLR 833 ECJ, C-188/89, [1990] ECR I-3313, [1990] EUECJ C-188/89, [1990] IRLR 353, [1990] 3 All ER 897, [1991] 1 QB 405, [1991] ICR 84

    Links:

    Bailii

    Statutes:

    Directive 1976 EEC/76/207 5(1)

    Cited by:

    Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
    Parish Councils are Hybrid Public Authorities
    The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
    Cited – Cameron and others v Network Rail Infrastructure Ltd QBD 18-May-2006
    The claimant sought damages from the defendant after the death of her father in the Potters Bar rail crash. The defendant applied for summary judgment saying that English law did not recognise a claim by a family member of a deceased save through . .
    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 . .
    At ECJ – Foster v British Gas plc HL 1991
    The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised . .
    Lists of cited by and citing cases may be incomplete.

    European, Utilities, Employment, Company

    Updated: 01 June 2022; Ref: scu.160286

    Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Judgment): ECJ 9 Jul 1991

    Europa 1. Regulation No 170/83 represents a carefully achieved balance between the system of exclusive access to coastal waters for national fishermen, a system which, in derogation from the principle of equal access, is allowed by the regulation both to continue and to be extended to the zones situated within the 12-mile limit, and the protection of certain activities of fishermen from other Member States within the areas listed in Annex I. That equilibrium, as it results from Article 6, could be compromised if the zones in which the fishing activities defined and authorized therein are carried out were to be shifted and included in areas in which the fishing grounds, natural conditions and density of maritime traffic were to prove very different. It follows that the scope of Annex I to the regulation cannot be altered by the unilateral action of a Member State in shifting its baselines. It is for that reason that the combined provisions of Article 6(2) and Annex I to the above regulation must be understood as referring to baselines as they existed on 25 January 1983, the date on which the regulation was adopted, and that Member States are consequently precluded from applying in certain areas, for the purposes of the fisheries arrangements laid down for their coastal waters in those provisions, new baselines which are shifted further out to sea than those in force on that date. 2. A Member State cannot justify its failure to fulfil obligations under the Treaty by pointing to the fact that other Member States have also failed, and continue to fail, to fulfil their own obligations. Under the legal order established by the Treaty, the implementation of Community law by Member States cannot be made subject to a condition of reciprocity. Articles 169 and 170 of the Treaty provide suitable means of redress for dealing with the failure by Member States to fulfil their obligations under the Treaty. 3. The exemplary conduct of a Member State which, after adopting measures contested by the Commission and other Member States and ultimately held by the Court, under Article 169 of the Treaty, to constitute a failure to fulfil obligations, voluntarily suspended their application, thereby rendering unnecessary an application to the Court for interim measures, constitutes an exceptional circumstance within the meaning of Article 69(3) of the Rules of Procedure such as to justify an order that each party bear its own costs.

    Citations:

    C-146/89, [1991] EUECJ C-146/89

    Links:

    Bailii

    Statutes:

    Regulation No 170/83

    European, Agriculture

    Updated: 01 June 2022; Ref: scu.160265

    Commission v Luxembourg: ECJ 26 Jun 1991

    ECJ Tax provisions – Domestic taxation – System of taxation of beer – Levying of excise duty on the hot wort, regardless of wastage incurred in preparing the finished product – Flat-rate adjustment of excise duty on imports and refunds on exports – Compatibility with the first paragraph of Article 95 and Article 96 of the Treaty – Conditions – Application of a wastage rate higher than that of certain domestic producers – Not permissible.

    Citations:

    C-152/89, [1991] EUECJ C-152/89, [1991] ECR I-3141

    Links:

    Bailii

    Cited by:

    Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
    The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
    Lists of cited by and citing cases may be incomplete.

    European

    Updated: 01 June 2022; Ref: scu.160266

    Commission v Belgium: ECJ 26 Jun 1991

    ECJ Tax provisions – Domestic taxation – System of taxation of beer – Levying of excise duty on the hot wort, regardless of wastage incurred in preparing the finished product – Flat-rate adjustment of excise duty on imports and refunds on exports – Compatibility with the first paragraph of Article 95 and Article 96 of the Treaty – Conditions – Application of a wastage rate higher than that of certain domestic producers – Not permissible – (EEC Treaty, Arts 95, first para., and 96)

    Citations:

    C-153/89, [1991] EUECJ C-153/89, [1991] ECR I-3171

    Links:

    Bailii

    Cited by:

    Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
    The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
    Lists of cited by and citing cases may be incomplete.

    European

    Updated: 01 June 2022; Ref: scu.160267

    BayWa v Hauptzollamt Weiden: ECJ 7 Mar 1991

    ECJ For the purposes of determining the customs value of harvest seed produced from basic seed supplied by the buyer, there should be added to the price paid or payable, in accordance with Article 8(1)(b)(i) of Council Regulation No 1224/80, licence fees which the buyer has to pay to the breeder of the basic seed in respect of the propagation of that seed, even where the breeder’s service has been performed within the customs territory of the Community.
    In the first place, such licence fees must be attributed to the purchase of the basic seed, and form part of the price payable for that seed, which is then incorporated in the imported goods; in the second place there is no general principle which excludes from customs valuation services provided and goods produced within the customs territory of the Community.

    Citations:

    C-116/89, [1991] EUECJ C-116/89

    Links:

    Bailii

    European, Customs and Excise

    Updated: 01 June 2022; Ref: scu.160259

    Commission v Italy (Judgment): ECJ 12 Jul 1990

    The Italian Government was held to have infringed Article 30 by closing all inland frontier posts at which imported grape fruit could be inspected and allowing importation only through certain seaports.

    Citations:

    C-128/89, [1990] ECR 1-3239, [1990] EUECJ C-128/89

    Links:

    Bailii

    Statutes:

    EC Teaty 30

    Cited by:

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

    European

    Updated: 01 June 2022; Ref: scu.160263

    Corsica Ferries France v Direction generale des douanes (Judgment): ECJ 13 Dec 1989

    Europa Before the entry into force of Regulation No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries, adopted by the Council on the basis of Article 84(2 ) of the Treaty, the EEC Treaty, in particular Articles 59, 61, 62 and 84, did not prevent a Member State from levying, in connection with the use by a ship of harbour installations situated in its island territory, charges on the embarkation and disembarkation of passengers arriving from or going to a port situated in another Member State, whilst in the case of travel between two ports situated within national territory those charges were levied only on embarkation at the island port.

    Citations:

    C-49/89, [1989] EUECJ C-49/89

    Links:

    Bailii

    European

    Updated: 01 June 2022; Ref: scu.160216

    United Kingdom of Great Britain and Northern Ireland, French Republic and the Federal Republic of Germany v Council of the European Communities (Judgment): ECJ 11 Jun 1991

    Europa 1. It follows from the very wording of Article 235 of the Treaty that its use as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question. 2. Article 128 of the Treaty must be interpreted as conferring on the Council the power to adopt legal measures which provide for Community action in the sphere of vocational training and impose corresponding obligations of cooperation on the Member States. 3. Under the scheme of the Treaty, the conditions under which legislative powers and budgetary powers are exercised are not the same. Consequently, the requirements of the budgetary procedure laid down for making available the appropriations needed for the implementation of a legislative measure cannot have any implications regarding the procedural requirements for the adoption of the measure in question. 4. The programme on cooperation between universities and industry regarding training in the field of technology (‘Comett II’ – second phase) seeks to ensure intra-Community cooperation between universities and industry regarding initial and continuing training in technology, in particular advanced technology, the development of highly skilled human resources and hence the competitiveness of European industry. From this it follows that the programme at issue is directed at vocational training and is founded, so far as its legal basis is concerned, on Article 128 of the Treaty alone. This conclusion is not undermined by the fact that such vocational training is envisaged as a means of facilitating both the exploitation of the results of scientific research and technological development within the Community, even though it has had the result of imposing an obligation on the Commission to ensure that the programme is consistent with other Community research and development projects. Nor is it undermined by the fact that the activities covered by the grants allocated to promote transnational exchanges, which are expressly singled out as training activities, may have a connection, even a close one, with scientific research and technological development. 5. According to its wording, Article 128 is directed at a common vocational training policy and does not draw any distinction between initial training and continuing training. Consequently, the latter type of training cannot be excluded from the concept of vocational training without restricting that concept in an arbitrary manner.

    Citations:

    C-51/89, [1991] EUECJ C-51/89

    Links:

    Bailii

    European

    Updated: 01 June 2022; Ref: scu.160217

    Commission v Germany (Order) (Judgment): ECJ 28 Feb 1991

    Europa (Order) APPLICATION for interim measures to suspend temporarily the construction work being carried out under a coastal protection project in the area of the Leybucht, pursuant to a decision of 25 September 1985 granting planning permission, in a protection area covered by Article 4(1 ) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds
    Although the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas pursuant to Article 4(4) of Directive 79/409 on the conservation of wild birds, they do not have the same discretion to modify or reduce the extent of such areas, which contain the most suitable environments for the species listed in Annex I, and thus unilaterally escape from the obligations imposed on them by Article 4(4) of the directive.
    The power of the member States to reduce the extent of special protection areas can be justified only on exceptional grounds corresponding to a general interest which is superior to the general interest represented by the ecological objective of the directive. In that context the economic and recreational requirements referred to in Article 2 of the directive do not enter into consideration, since that provision does not constitute an autonomous derogation from the system of protection established by the directive

    Citations:

    C-57/89, [1991] ECR I-883, [1991] EUECJ C-57/89

    Links:

    Bailii

    Cited by:

    Cited – Bown v Secretary of State for Transport CA 31-Jul-2003
    The appeal concerned the environmental effect of the erection of a bridge being part of a bypass. It was claimed that the area should have been designated as a Special Protection Area for Birds (SPA), and that if so it should be treated as such for . .
    Lists of cited by and citing cases may be incomplete.

    European, Environment

    Updated: 01 June 2022; Ref: scu.160219