Category: European

Sermide Spa v Cassa Conguaglio Zucchero and Others: ECJ 13 Dec 1984

ECJ 1. Agriculture – common organization of the markets – discrimination between producers or consumers – prohibition – scope – measures differentiated according to regions of the community – whether permissible -objective criteria (EEC treaty, arts 7 and 40 (3), second subparagraph) 2. Agriculture – common organization of the markets – sugar – production levy – calculation – consideration of losses resulting from disposal -concept of disposal (regulation (EEC) no 3330/74 of the council, art. 27 (2); regulation (EEC) no 700/73 of the commission, art. 7 (2); commission regulation EEC) no 3358/81, art. 1)

  1. Under the principle of non-discrimination between community producers or consumers, which is enshrined in the second subparagraph of article 40 (3) of the EEC treaty and which includes the prohibition of discrimination on grounds of nationality laid down in the first paragraph of article 7 of the EEC treaty, comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. It follows that the various elements in the common organization of the markets, such as protective measures, subsidies, aid and so on, may not be differentiated according to region or according to other factors affecting production or consumption except by reference to objective criteria which ensure a proportionate division of the advantages and disadvantages for those concerned without distinction between the territories of the member states.
  2. The factors taken into account in the calculation of the sugar production levy for a given marketing year include the losses resulting from disposal of b quota sugar on the world market. Since neither regulation no 3330/74 nor regulation no 700/73 defines the concept of disposal, it was permissible for the commission, when fixing the amount of the levy in regulation no 3358/81, to quantify the volume of exports on the basis of the information derived from export licences, which impose an obligation on the licensees to carry out the operations in question, subject to the provision of security, rather than actual exports, which are difficult to bring into account owing to the practices pursued by the national authorities.

Citations:

C-106/83, R-106/83, [1984] EUECJ R-106/83

Links:

Bailii

European, Agriculture

Updated: 22 May 2022; Ref: scu.133651

Commission v Denmark (Rec 1985,P 427) (Sv85-31 Fi85-31) (Judgment): ECJ 30 Jan 1985

Citations:

C-143/83, [1985] EUECJ C-143/83

Links:

Bailii

Cited by:

Cited – Morton v South Ayrshire Council IHCS 14-Feb-2002
The applicants were head teachers employed in junior schools. They alleged sex discrimination, and sought to use as comparators head teachers from different local authorities. The comparators had been put forward on the basis that the teacher in . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 22 May 2022; Ref: scu.133680

Commission v Italy (Rec 1984,P 2849) (Judgment): ECJ 11 Jul 1984

Europa Aid granted by states – commission decision declaring aid incompatible with the common market – obligation of the member state concerned (EEC treaty, arts 92 and 93)
Where a formal decision has been adopted by the commission declaring aid granted by a state to be incompatible with the common market, the member state concerned is under an obligation to give effect to the decision within the prescribed period, by taking the measures necessary to ensure the formal repeal of the provisions found by the commission to be contrary to the requirements of article 92 of the EEC treaty.

Citations:

C-130/83, [1984] EUECJ C-130/83

Links:

Bailii

European

Updated: 22 May 2022; Ref: scu.133675

Partenreederei Ms Tilly Russ and Ernest Russ v NV Haven- and Vervoerbedrijf Nova and NV Goeminne Hout: ECJ 19 Jun 1984

Europa Convention on jurisdiction and the enforcement of judgments – jurisdiction agreement – jurisdiction clause in a bill of lading – validity – conditions (convention of 27 September 1968, art. 17)
a jurisdiction clause contained in the printed conditions on a bill of lading satisfies the conditions laid down by article 17 of the convention : if the agreement of both parties to the conditions containing that clause has been expressed in writing; or if the jurisdiction clause has been the subject-matter of a prior oral agreement between the parties expressly relating to that clause, in which case the bill of lading, signed by the carrier, must be regarded as confirmation in writing of the oral agreement; or if the bill of lading comes within the framework of a continuing business relationship between the parties, in so far as it is thereby established that the relationship is governed by general conditions containing the jurisdiction clause. As regards the relationship between the carrier and a third party holding the bill of lading, the conditions laid down by article 17 of the convention are satisfied if the jurisdiction clause has been adjudged valid as between the carrier and the shipper and if, by virtue of the relevant national law, the third party, upon acquiring the bill of lading, succeeded to the shipper ‘ s rights and obligations.

Citations:

C-71/83, R-71/83, [1984] EUECJ R-71/83, [1984] ECR 2417

Links:

Bailii

Cited by:

Cited – Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Lists of cited by and citing cases may be incomplete.

European, Transport, Jurisdiction

Updated: 22 May 2022; Ref: scu.133626

Knud Wendelboe and Others v LJ Music Aps, In Liquidation: ECJ 7 Feb 1985

Europa Council directive no 77/187 does not require the member states to enact provisions under which the transferee of an undertaking becomes liable in respect of obligations concerning holiday pay and compensation to employees who were not employed in the undertaking on the date of the transfer.
The existence or otherwise of a contract of employment or an employment relationship on the date of the transfer, within the meaning of article 3(1) of directive no 77/187, must be established on the basis of the rules of national law, subject however to observance of the mandatory provisions of the directive and, more particularly, article 4(1) thereof, concerning the protection of employees against dismissal by the transferor or the transferee by reason of the transfer.
Only those employed on the date of transfer can claim the benefit of Article 3 of the Directive. Whether a contract of employment or an employment relationship existed at such date: ‘must be established on the basis of the rules of national law, subject however to observance of the mandatory provisions of the directive and, more particularly, Article 4(1) thereof, concerning the protection of employees against dismissal by the transferor or the transferee by reason of the transfer.’ The Advocate General further expressed the opinion that: ‘Whether the remedy for such unlawful dismissal consists in a court order declaring that dismissal to be a nullity or the award of damages or some other effective remedy is for the Member States to determine.’

Citations:

C-19/83, R-19/83, [1985] EUECJ R-19/83

Links:

Bailii

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

Updated: 22 May 2022; Ref: scu.133589

Intermills v Commission: ECJ 14 Nov 1984

ECJ 1. In connection with state aid and for the purposes of the application of article 92 of the eec treaty. A pre-existing company and three companies newly constituted. Under the restructuring plan financed by the aid in question. To operate the first company’s plant. May be regarded as a single group. Where it is established that the first has an interest in the other three and all four are controlled by the same public authority.

2. For the purposes of article 93(2) of the EEC Treaty. Which provides that the commission is to take a decision in relation to aid granted ‘after giving notice to the parties concerned to submit their comments’. The ‘parties concerned’ are not only the undertaking or undertakings receiving aid but equally the persons. Undertakings or associations whose interests might be affected by the grant of aid. In particular competing undertakings and trade associations. In other words. There is an indeterminate group of persons to whom notice must be given.
It follows that article 93(2) does not require individual notice to be given to particular persons. Its sole purpose is to oblige the commission to take steps to ensure that all persons who may be concerned are notified and given an opportunity of putting forward their arguments. Under those circumstances. The publication of a notice in the official journal is an appropriate means of informing all the parties concerned that a procedure has been initiated.

3. The treaty applies to aid granted by a state or through state resources ‘in any form whatsoever’. It follows that no distinction can be drawn between aid granted in the form of loans and aid granted in the form of a holding acquired in the capital of an undertaking. Aid taking either form falls within the prohibition laid down in article 92 where the conditions set out in that provision are fulfilled.

The granting of aid. Especially in the form of capital holdings acquired by the state or by public authorities. Cannot be regarded as being automatically contrary to the provisions of the treaty. Thus. Irrespective of the form in which aid is granted. It is the commission’s task to examine whether it is contrary to article 92(1) and, if so,. To assess whether there is any possibility of its being exempt under article 92(3), giving the grounds on which its decision is based accordingly.

Citations:

C-323/82, [1984] EUECJ C-323/82

Links:

Bailii

Statutes:

EEC Treaty 93(2)

European

Updated: 21 May 2022; Ref: scu.133554

Timex v Council and Commission: ECJ 20 Mar 1985

Europa A regulation introducing an anti-dumping duty constitutes a decision of direct and individual concern, within the meaning of the second paragraph of article 173 of the EEC Treaty, to an undertaking if it is established that the objections of that undertaking, being the only manufacturer of the product in question in one member state and the leading manufacturer in the community, lay at the origin of the complaint made by an association of which it is a member which led to the opening of the investigation procedure, that the under taking’s views were heard during that procedure and that the anti-dumping duty was fixed in the light of the injury caused to it.
That undertaking is therefore entitled to put before the court any matters which would facilitate a review as to whether the commission has observed the procedural guarantees granted to complainants by regulation no 3017/79 and whether or not it has committed manifest errors in its assessment of the facts, has omitted to take any essential matters into consideration or has based the reasons for its decision on considerations amounting to a misuse of powers. In that respect, the court is required to exercise its normal powers of review over a discretion granted to a public authority, even though it has no jurisdiction to intervene in the exercise of the discretion reserved to the community authorities by the aforementioned regulation.
The aim of article 7(4)(a) of regulation no 3017/79 regarding the disclosure of information obtained by the commission during a dumping investigation is to ensure that the traders or manufacturers concerned may effectively put forward their points of view.
The expression ‘ any party to an investigation ‘ contained in that provision must therefore be interpreted as meaning not only the parties which are the subject of the investigation but also the parties whose information has been used to calculate the normal value of the relevant products, since such information is just as relevant to the defence of complainants ‘ interests as the information supplied by the undertakings carrying out the dumping. Consequently, all non-confidential information, whether supplied by a community undertaking or an undertaking in a non-member country, which has been used by the commission during its investigation and which has had a decisive influence on its decision regarding the anti-dumping duty must be made available to the complainant requesting it.
The community institutions are bound by Article 214 of the eec treaty to respect the principle of confidential treatment of information about undertakings, particularly about undertakings in non-member countries which have expressed their readiness to cooperate with the commission in dumping investigations, even if no express request for such treatment is received under Article 8 of regulation no 3017/79. That obligation, however, must be interpreted in such a way that the rights provided by Article 7(4)(a) of that regulation are not deprived of their substance.

Citations:

C-264/82, [1985] EUECJ C-264/82

Links:

Bailii

European

Updated: 21 May 2022; Ref: scu.133514

Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro: ECJ 31 Jan 1984

The freedom to provide services includes the freedom, for the recipients of services, to go to another member state in order to receive a service there, without being obstructed by restrictions, even in relation to payments. Tourists, persons receiving medical treatment and persons travelling for the purposes of education or business are to be regarded as recipients of services.
The general scheme of the treaty shows, and a comparison between articles 67 and 106 confirms, that the current payments covered by article 106 are transfers of foreign exchange which constitute the consideration within the context of an underlying transaction, whilst the movements of capital covered by article 67 are financial operations essentially concerned with the investment of the funds in question rather than remuneration for a service. For that reason movements of capital may themselves give rise to current payments, as is implied by articles 67(2) and 106(1). The physical transfer of bank notes may not therefore be classified as a movement of capital where the transfer in question corresponds to an obligation to pay arising from a transaction involving the movement of goods or services.
Article 106 compels member states to authorize the payments referred to in that provision in the currency of the member state in which the creditor or beneficiary resides. Payments made in the currency of a third country are not therefore covered by that provision.
Article 106 of the Treaty must be interpreted as meaning that: transfers in connection with tourism or travel for the purposes of business, education or medical treatment constitute payments and not movements of capital, even where they are effected by means of the physical transfer of bank notes; any restrictions on such payments are abolished as from the end of the transitional period; member states retain the power to verify that transfers of foreign currency purportedly intended for liberalized payments are not in reality used for unauthorized movements of capital; controls introduced for that purpose may not have the effect of limiting payments and transfers in connection with the provision of services to a specific amount for each transaction or for a given period, or of rendering illusory the freedoms recognized by the treaty or of subjecting the exercise thereof to the discretion of the administrative authorities; such controls may involve the fixing of flat-rate limits below which no verification is carried out, whereas in the case of expenditure exceeding those limits proof is required that the amounts transferred have actually been used in connection with the provision of services, provided however that the flat-rate limits so determined are not such as to affect the normal pattern of the provision of services.

Citations:

C-286/82, [1984] ECR 377, R-286/82, [1984] EUECJ R-286/82

Links:

Bailii

Cited by:

Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Lists of cited by and citing cases may be incomplete.

European, Health

Updated: 21 May 2022; Ref: scu.133529