Category: European

Arend van de Poll KG v Hauptzollamt Trier (Judgment): ECJ 14 Dec 1972

Europa 1. Common customs tariff – tariff classification – heading 23.07 -interpretation (regulations nos 19/62 and 55/62) 2. Common customs tariff – tariff classification – criteria – application -jurisdiction of the national court
1. Heading 23.07 of the common customs tariff, to which reference is made in article 1 (d) of and the annex to regulation no 19 of 4 April 1962 and in article 12 of regulation no 55 of 30 June 1962 must be interpreted as meaning that it is concerned exclusively with cereal-based animal food preparations which are specifically intended for use as forage, provided that they are not, at the same time, fit for human consumption. 2. Practical considerations arising in individual cases from the application of criteria laid down by the common customs tariff are a matter for the national courts.
In case 38/72 reference to the court under article 177 of the EEC treaty by the finanzgericht rheinland-pfalz (finance court of the rhineland-palatinate) for a preliminary ruling in the action pending before that court between arend van de poll kg, having its registered office in cologne, and hauptzollamt trier (head customs office, trier)
on the interpretation of article 1 (d) of and of the annex to regulation no 19 of the council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals, of article 12 of regulation no 55 of the council of 30 June 1962 on the system governing processed cereal products and of regulation no 178/64 of the commission of 12 November 1964 on the amount of and conditions governing premiums on denaturing of wheat and rye,
1 by order of 3 may 1972, registered at the court of 28 June 1972, the finanzgericht rheinland-pfalz (finance court of the rhineland – palatinate) referred, in pursuance of article 177 of the EEC treaty, a number of questions on the interpretation of heading 23.07 of the common customs tariff – in the version in force at the time when the event occurred -referred to in article 1 (d) of and the annex to regulation no 19 of the council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals (jo 1962, p. 933) and article 12 of regulation no 55 of the council of 30 June 1962 on the system governing processed cereal products (jo 1962, p. 1583). It is clear from the order making the reference that these questions were put in the context of a dispute concerning the classification, with a view to the application of intra-community levies, of a product composed mainly of common wheat, mixed with barley and oats and containing a small additional amount of cod liver oil. 2 according to the plaintiff in the main action this product falls under heading 23.07 (‘ preparations of a kind used in animal feeding ‘), whereas the customs administration, the defendant in the main action, claims that it should be classified under heading 10.01 of the customs tariff (‘ wheat and meslin ‘). 3 the essential purpose of the questions put to the court is to ascertain : – whether, provided that the correct proportions are used, such a mixture of itself constitutes a preparation of a kind used in animal feeding, within the meaning of heading 23.07 (questions 1 and 2); if not – whether such a ‘ preparation ‘ is obtained when the product contains, in addition to a mixture of cereals, other ingredients which may be considered as animal food materials (questions 3 and 4); if not – whether a mixture of cereals such as that in question in the present dispute may be considered to be a preparation of a kind used in animal feeding where a denaturing agent has been added in sufficient quantity, either to the mixture as a whole or to its principal ingredient, and if cod liver oil or fish oil can be used for this purpose (questions 5 and 8). 4 the terms of heading 23.07, with which this dispute is concerned, read as follows in the annex to regulation no 19 : ‘ animal food preparations including sweetened forage; other preparations used in animal feeding (additives etc.): b. Containing cereals or containing products covered by the present regulation ‘. This heading, in the context of the customs tariff, constitutes a specific category, relating not to random combinations of cereals, with or without the addition of other substances, but to forage produced for use in animal feeding. 5 this explanation is supported by the explanatory notes to the Brussels nomenclature relating to heading 23.07, in which it is stated that ‘ this heading excludes :… (B) simple mixtures of cereal grains… (C) preparations which, when account is taken, in particular, of the nature, purity and proportions of the components, the hygiene requirements complied with during manufacture and, where appropriate, the indications given on the packaging or any other information concerning their use, can be used indifferently for feeding animals or as human food ‘. These notes permit two distinct criteria to be deduced : first, from the particular use to which the product is to be put as forage and, secondly, from the impossibility of using the same product for human consumption. 6 in particular, it appears from the above that the addition of a denaturing agent to a mixture of cereals does not bring the product within the classification of heading 23.07 if, on the other hand, the product is not capable of being used specifically as forage for cattle. 7 practical considerations arising in individual cases from the application of criteria laid down by the customs tariff are a matter for the national courts. That is true, in fact, of all matters concerning the composition of cereal mixtures and the proportions of different cereals used, the nature and proportion of other additional nutrients and the nature of and method of applying the products used to render foods unfit for human consumption. 8 accordingly, in reply to the questions referred, heading 23.07 must be interpreted as meaning that it is concerned exclusively with cereal-based animal food preparations which are specifically intended for use as forage, provided that they are not, at the same time, fit for human consumption.

Citations:

C-38/72

European, Customs and Excise

Updated: 10 April 2022; Ref: scu.132096

Heinze v Landesversicherungsanstalt Rheinprovinz: ECJ 16 Nov 1972

ECJ The court has power to provide the national court with factors of interpretation depending on community law which might be useful to it in evaluating the effects of a provision of national law.
article 2(1) of regulation no 3 also refers to prophylactic or remedial measures.
the social security benefits which, although not related to the ‘earning capacity’ of the insured person, are also awarded to the member of his family and are principally intended to aid the recovery of the invalid and to protect those who are in contact with him must be regarded as sickness benefits within the meaning of article 2 (1) (a) of regulation no 3.
for the purposes of acquiring a right to such benefits, the aggregation of the affiliation periods completed in the various member states is governed by article 16 et seq. Of regulation no 3.

Citations:

C-14/72

European

Updated: 10 April 2022; Ref: scu.132077

Land Niedersachsen v Landesversicherungsanstalt Hannover (Judgment): ECJ 16 Nov 1972

Europa The court has power to provide the national court with factors of interpretation depending on community law which might be useful to it in evaluating the effects of a provision of national law.
Article 2 (1) of regulation no 3 also refers to prophylactic or remedial measures.
The social security benefits which, although not related to the ‘ earning capacity ‘ of the insured person, are also awarded to the members of his family and are principally intended to aid the recovery of the invalid and to protect those who are in contact with him must be regarded as sickness benefits within meaning of article 2(1)(a) for the purpose of acquiring a right to such benefits the aggregation of the affiliation periods completed in the various member states is governed by article 16 et seq. Of regulation no 3.

Citations:

C-15/72

European

Updated: 10 April 2022; Ref: scu.132078

Ortskrankenkasse Hamburg v Landesversicherungsanstalt Schleswig-Holstein (Judgment): ECJ 16 Nov 1972

Europa The court has power to provide the national court with factors of interpretation depending on community law which might be useful to it in evaluating the effects of a provision of national law.
Article 2(1) of regulation no 3 also refers to prophylactic or remedial measures.
The social security benefits which, although not related to the ‘earning capacity’ of the insured person, are also awarded to the members of his family and are principally intended to aid the recovery of the invalid and to protect those who are in contact with him must be regarded as sickness benefits within the meaning of article 2(1)(a) of regulation no 3. For the purposes of acquiring a right to such benefits the aggregation of the affiliation periods completed in the various member states is governed by article 16 et seq. Of regulation no 3.
For the purpose of acquiring a right to social security benefits, social security organizations in the member states are not bound to take into account affiliation periods completed in third countries.

Citations:

C-16/72

European

Updated: 10 April 2022; Ref: scu.132079

Caisse de maladie des C F L “Entr’aide medicale” and Societe nationale des chemins de fer luxembourgeois v Compagnie belge d’assurances generales sur la vie et contre les accidents (Judgment): ECJ 12 Nov 1969

Europa 1. Social security for migrant workers – community rules – persons entitled to benefit – concept (regulation no 3, article 4) 2. Social security for migrant workers – benefit payable under the legislation of one member state for an injury sustained in the territory of another state – subrogation of the institution liable for payment of benefit – connection between the injury sustained by the worker and his professional or trade activity not required (regulation no 3, article 52) 3. Social security for migrant workers – benefit payable under the legislation of one member state for injury sustained in the territory of another state – subrogation of the institution liable for payment of benefit – legal proceedings before the national court of that institution – conformity with the application of article 52 of regulation no 3. 4. Social security for migrant workers – benefit payable under the legislation of one member state in respect of an injury sustained in the territory of another state – purpose of article 52 of regulation no 3 – direct application of the first paragraph of that article – bilateral agreements within the meaning of the second paragraph of article 52 – function. 1. Regulation no 3 is applicable to any wage – earner or assimilated worker who finds himself in one of the situations involving international elements as provided for in the said regulation, as well as to his survivors. 2. The provisions of article 52 of regulation no 3 are applicable even when the injury sustained by the worker has no connection with his professional or trade activity. 3. Article 52 of regulation no 3 of the council of the EEC is also applicable to cases in which the institution liable for payment of benefit commences proceedings before its national court. 4. The object of article 52 is to secure the recognition by each member state of any right of action pursued by the others in favour of the institution liable for payment of benefit acting against the third party liable, either by means of subrogation or any other legal method. The provisions of the first paragraph of article 52 are worded in peremptory terms and are capable of direct application. The sole function of bilateral agreements as referred to in the second paragraph of that article is to provide for their implementation, where necessary, without however rendering the direct effect of the provision in question subordinate to them.

Citations:

C-27/69

European

Updated: 10 April 2022; Ref: scu.132005

Gervais-Danone AG v Hauptzollamt Munchen-Schwanthalerstrasse: ECJ 15 Dec 1971

Europa Common customs tariff – description of goods – interpretation – absence of community provisions – authority of explanatory notes and classification opinions of the convention on the Brussels nomenclature. Common customs tariff – description of goods – classification of a product under tariff heading 21.07 – regulation no 241/70 of the commission – legislative nature – no retroactive effect. Common customs tariff – description of goods – classification of a product under tariff heading 21.04 – criteria – discretion of the national court (regulation no 950/68 of the council). Common customs tariff – entry into force – no effect on the binding customs tariff notices within the meaning of article 23 of the German Zollgesetz (regulation no 950/68 of the council, article 1)

Citations:

C-77/71

European, Customs and Excise

Updated: 10 April 2022; Ref: scu.132052

Erich Stauder v City of Ulm – Sozialamt (Judgment): ECJ 12 Nov 1969

Europa 1. Measures adopted by an institution – decision addressed to all member states – interpretation – criteria – consideration of different language versions of the measure in question (EEC treaty, article 189) 2. Community law – general principles – fundamental human rights included – respect for these ensured by the court. 1. When a single decision is addressed to all the member states the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve, and in the light in particular of the versions in all four languages. 2. The provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of community law and protected by the court.

Citations:

C-29/69

European

Updated: 10 April 2022; Ref: scu.132007

Reinaldus Renckens v Commission of the European Communities (Judgment): ECJ 2 Jul 1969

Europa 1. Officials – rationalization of departments after the merger treaty – powers of the commission (regulation no 259/68 of the council, article 4) 2. Officials – decision adversely affecting – statement of reasons – scope (staff regulations of officials of the ECSC, article 25) 3. Officials – decisions concerning officials – review by the court – limits. 1. In conferring on the commission power to take measures, in particular pursuant to article 4 of regulation no 259/68, terminating the service of individuals consequent upon the rationalization and the reduction of staff, the council did not delegate legislative powers to the commission but entrusted it with the practical implementation of the rules which it laid down in that regulation within the limits of the jurisdiction conferred on it by the treaty. 2. The duty to state the reasons for a decision adversely affecting an official is fulfilled when the reasons on which the measure in question is based are shown clearly and unambiguously. The administration cannot be expected to go further and give particulars of its assessment of him in comparison with each of the other officials of equal rank who are not the subject of the same measure. 3. Although the court may not substitute its own valued judgment for that of the commission, it may nevertheless check whether the decision terminating an official’s service was taken having regard to the criteria laid down in article 4 of regulation no 259/68 and with the object of rationalizing its departments.

Citations:

C-27/68

European

Updated: 10 April 2022; Ref: scu.131977

Franz Volk v S P R L Ets J Vervaecke (Judgment): ECJ 9 Jul 1969

Europa 1. Procedure – preliminary ruling – jurisdiction of the court of justice – limits (EEC treaty, article 177) 2. Policy of the EEC – rules on competition between undertakings – agreements which may affect trade between member state – concept (EEC treaty, article 85) 3. Policy of the EEC – rules on competition between undertakings – exclusive dealing arrangements with absolute territorial protection – prohibition – possibility of avoiding such prohibition by reason of the weak position of the parties concerned on the market in the products in question (EEC treaty, article 85). 1. The court is not entitled within the framework of article 177 to apply the treaty to a particular case. It may however derive from the wording of the decision referring the matter the questions which relate exclusively to the interpretation of the treaty. 2. If an agreement is to be capable of affecting trade between member states it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or of fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between member states, in such a way that it might hinder the realization of the objectives of a single market between states. 3. An exclusive dealing agreement, even with absolute territorial protection, may, having regard to the weak position of the persons concerned on the market in the products in question in the area covered by the absolute protection, escape the prohibition laid down in article 85(1).

Citations:

C-5/69

European

Updated: 10 April 2022; Ref: scu.131989

Caisse regionale de securite sociale du nord de la France v Achille Torrekens (Judgment): ECJ 7 May 1969

Europa 1. Procedure – questions referred for preliminary ruling – jurisdiction of the court – limits (EEC treaty, article 177) 2. Social security for migrant workers – old-age and death pensions – aggregation – application of legislation mentioned in annex b to regulation no 3 including non-contributory schemes (regulation no 3, article 27, annex b) 3. Social security for migrant workers – regulation no 3 of the council concerning social security for migrant workers – conventions referred to in article 6(2)(e) and in annex d – scope of regulation no 3 – interpretation of the said conventions. 1. The considerations which may have led the national court to choose the questions referred to the court for a preliminary ruling as well as the relevance which it attaches to them in the proceedings pending before it cannot be examined by the court. Article 177, which is based on a clear separation of functions between the national courts or tribunals and the court of justice, does not enable the latter to rule on the application of the provisions of community law. 2. The system of aggregation provided for by article 27(1) of regulation no 3 of the council of the EEC concerning social security for migrant workers also applies to the legislation mentioned in annex b, whether it establishes a contributory or non-contributory scheme. 3. It is clear from article 6(2)(e) that regulation no 3 is not intended to detract from the provisions of the conventions concluded before it entered into force. The regulation continues to apply to the extent to which these conventions do not impede its application. It is for the national court to decide what effect the conventions listed in annex d have.

Citations:

C-28/68

European

Updated: 10 April 2022; Ref: scu.131979

Commission of the European Communities v French Republic (Judgment): ECJ 10 Dec 1969

Europa 1. Member states of the European communities – exclusive powers – exercise derogating from the provisions of the treaties – conditions imposed by the treaties 2. Member states of the EEC – failure to fulfil an obligation arising from the treaty – finding by the commission – allegation that the commission has intervened in a sphere reserved to the member state concerned – lack of a legal basis for a binding measure – review by the court (EEC treaty, article 169) 3. Aids granted by states – rate of preferential rediscount for exports – granted for national products exported – nature of the aid (EEC treaty, article 92) 4. Member states of the EEC – unilateral actions authorized by the treaty as a precaution – necessity for rapid intervention by the community institutions. 5. Economic policy – balance of payments – sudden crisis – protective measures – nature of unilateral action – obligations of the member state concerned (EEC treaty, article 109) 6. Member states of the EEC – failure to fulfil an obligation arising from the treaty – reasoned opinion addressed by the commission to the member state concerned – submission based on the illegality of this opinion – inadmissibility (EEC treaty, article 109) 7. Adverse effect upon the conditions of competition – action by a member state of the ECSC – damaging effect – aid to undertakings in the coal and steel sector – concept – authorization by the commission – rate of preferential rediscount for exports – nature of aid within the meaning of article 67(2) of the ECSC treaty 8. Member states of the ECSC – failure to fulfil obligation arising from the treaty – finding by the commission – subject-matter (ECSC treaty, article 88) 9. Member states of the ECSC – failure to fulfil an obligation arising from the treaty – finding by the commission – action by the member state concerned – subject-matter – different from that of action for annulment under article 33 of the ECSC treaty (ECSC treaty, article 88). 1. In the exercise of their reserved powers, member states can derogate from the obligation imposed on them by the provisions of the European treaties only on the conditions laid down in the treaties themselves. 2. If in proceedings for failure by a state to fulfil an obligation, the state alleges that the decision which it has not honoured has been taken in a sphere which belongs exclusively to its own jurisdiction, the court must investigate this allegation even if the decision has become definitive. Such an investigation accords with a fundamental requirement of the legal system for should the allegation prove correct the decision would lack all legal basis in the community system. 3. A preferential rediscount rate for exports, granted by a state in favour only of national products exported and for the purpose of helping them to compete in other member states with products originating in the latter, constitutes an aid within the meaning of article 92 the observance of which it is the commission’s task to ensure. 4. In the event of unilateral action by a state derogating from the provisions of the treaty but authorized by the treaty as a precaution, intervention by the community institutions as soon as possible meets a fundamental requirement for the functioning of the common market. 5. A state which takes advantage of the exceptional power contained in article 109(1) of the EEC treaty takes a unilateral measure of an exceptional and temporary nature which derogates from the provisions of the treaty. It follows from the very nature of such a measure that it involves for that state the obligation of informing the commission and the other member states immediately – or not later than when such measures enter into force – and of making express reference to this provision. 6. The reasoned opinion sent by the commission to a member state when it considers that this state has failed to fulfil an obligation under the treaty, constitutes the pre-litigious stage of a procedure which may lead to an action before the court of justice. The assessment of the validity of the action itself which the commission may bring before the court of justice under article 169. It is not therefore possible to plead only the illegality of the opinion. 7. The second subparagraph of article 67(2) of the ECSC treaty in providing for situations enabling the commission to authorize member states, in derogation from article 4, to grant aid, does not distinguish between aid specific to the coal and steel sector and aid which applies to it as the result of a general measure. A preferential rediscount rate for exports therefore constitutes aid which, within the meaning of article 67, must be authorized by the commission in so far as it concerns the coal and steel sector. 8. The sole objective of the commission’s reasoned decision under article 88 of the ECSC treaty is to record the state’s failure to fulfil a pre-existing obligation and to set a final time limit for it to comply therewith. 9. Although a state which is accused of failure to fulfil an obligation is entitled to dispute by means of the procedure of article 88 the new conditions of implementation which the decision has set it, such power cannot result in re-opening the question of the legality of the measure, which the state has not complied with, after the expiry of the period for bringing proceedings for annulment.

Citations:

C-6/69

European

Updated: 10 April 2022; Ref: scu.131990

Claude Sayag and S A Zurich v Jean-Pierre Leduc, Denise Thonnon and S A La Concorde (Judgment): ECJ 10 Jul 1969

Europa EAEC – non-contractual liability – compensation for damage caused by servants of the community in the performance of their duties – driving of a private car by a servant while on duty – activity in principle not included in the performance of the duties of such servant. (EAEC treaty, article 188). The performance of the duties of a servant of the community, within the meaning of the second paragraph of article 188 of the EAEC treaty, does not in principle include the use of his private car while on duty except in the case of force majeure or exceptional circumstances of such overriding importance that without the servant’s using private means of transport the community would have been unable to carry out the tasks entrusted to it.

Citations:

C-9/69

European

Updated: 10 April 2022; Ref: scu.131993

S A Portelange v S A Smith Corona Marchant International and others (Judgment): ECJ 9 Jul 1969

Europa 1. Procedure – preliminary questions – jurisdiction of the court – limits – task of the national courts (EEC treaty, article 177) 2. Policy of the EEC – rules on competition – agreements – notification – prohibition of an agreement notified – condition of prohibition (EEC treaty, article 85; regulation no 17/62 of the council) 3. Policy of the EEC – rules on competition – agreements – notification – validity of agreements notified – effects of this validity (EEC treaty, article 85; regulation no 17/62 of the council, article 15(6)). 1. Article 177 of the treaty, based on a clear separation of functions between national courts and the court of justice, does not permit the latter to take cognizance of the facts of the case or to pass judgment on the reasons for requests for interpretation. The question whether the provisions or concepts of community law, whose interpretation is requested, are in fact applicable to the case in question, lies outside the jurisdiction of the court of justice and falls within the jurisdiction of the national court. Where a court or tribunal requests the interpretation of a community provision or of a legal concept connected with it, it must be assumed that that court or tribunal considers such interpretation necessary to the solution of the dispute before it. 2. The question whether an agreement notified in accordance with regulation no 17 is in fact prohibited depends upon the appraisal of economic and legal factors which cannot be assumed to be present in the absence of an explicit finding that the individual agreement in question not only contains all the factors mentioned in article 85(1), but does not qualify for the exemption provided by article 85(3). So long as such a finding has not been made, every agreement duly notified must be considered valid. 3. It would be contrary to the general principle of legal certainty to conclude that, because agreements notified are not finally valid so long as the commission has made no decision on them under article 85(3) of the treaty, they are not completely efficacious. Where, however, article 15(6) of regulation no 17/62 has been applied, any parties who proceed with the implementation of such agreements do so at their own risk.

Citations:

C-10/69

European

Updated: 10 April 2022; Ref: scu.131994

Norddeutsches Vieh- Und Fleischkontor v Hauptzollamt Hamburg St Annen: ECJ 11 Feb 1971

Europa The uniform application of community provisions allows no recourse to national rules except to the extent necessary to carry out the regulations. Where community rules introducing a special system for imports lay down all the conditions for the applicability of the system as well as the arrangements for security and supervision designed to prevent fraud, national authorities may not subject the importers to whom the special system applies to additional requirementsarising under national law, in particular where such requirements are incompatible with the criteria on which the community rules are based; the position is the same where the applicability of such a special system is made dependent upon a subjective assessment on the part of the national authority.

Citations:

C-39/70

European

Updated: 10 April 2022; Ref: scu.131933

Firma Fink-Frucht GmbH v Hauptzollamt Munchen-Landsbergerstrasse: ECJ 4 Apr 1968

Europa 1. Policy of the EEC – common rules – tax provisions – internal taxation imposed by one member state on products from other member states – absence of similar domestic products or other products capable of being protected – permissibility (EEC treaty, article 95) 2. Quantitative restrictions and taxes – different nature – joint application of provisions thereon to the same case – not permissible (EEC treaty, articles 30, 95) 3. Policy of the EEC – common rules – tax provisions – internal taxation imposed by one member state on products from other member states – similarity between such products – concept (EEC treaty, first paragraph of article 95) 4. Policy of the EEC – common rules – tax provisions – internal taxation imposed by one member state on products from other member states – taxation of such a nature as to afford indirect protection to products other than similar products – prohibition – individual rights – protection of such rights by national courts (EEC treaty, first paragraph of article 95) 5. Policy of the EEC – common rules – tax provisions – internal taxation imposed by one member state on products from other member states – taxation of such a nature as to afford indirect protection to products other than similar products – prohibition – nature of the prohibition – conditions of application – powers of national courts (EEC treaty, second paragraph of article 95). 1. The provisions of article 95 of the EEC treaty do not prohibit member states from imposing internal taxation on products imported from other member states when there are no similar domestic products or other domestic products capable of being protected. 2. Internal taxation imposed under the conditions referred to in paragraph 1 above on products imported from other member states does not come within the prohibition on quantitative restrictions and measures having equivalent effect, within the meaning of article 30 of the EEC treaty. One and the same tax cannot be both a measure having an effect equivalent to a quantitative restriction and internal taxation. 3. Similarity between products within the meaning of the first paragraph of article 95 exists when the products in question are normally to be considered as coming within the same fiscal, customs or statistical classification, as the case may be. 4. The second paragraph of article 95 of the treaty is capable of producing direct effects and creating individual rights which national courts must protect. 5. The second paragraph of article 95 is complementary to the first. It prohibits the imposition of any internal taxation which imposes a higher charge on an imported than on a domestic product which competes with the imported product, although it is not similar to it within the meaning of the first paragraph of article 95. The prohibition also applies in the absence of direct competition where the internal taxation subjects the imported product to a specific fiscal charge in such a way as to protect certain activities distinct from those used in the manufacture of the imported product. However, the said second paragraph is only applicable when the various economic relationships envisaged by it are not merely fortuitous, but lasting and characteristic. The effects of a tax on the economic relationships referred to in the second paragraph of article 95 must be assessed in the light of the objectives of article 95, which are to ensure normal conditions of competition and to remove all restrictions of the fiscal nature capable of hindering the free movement of goods within the common market. The treaty does not prevent national courts from deciding, where necessary, the level below which the tax in question would cease to have the protective effects prohibited by the treaty and from drawing all appropriate conclusions therefrom.

Citations:

C-27/67

European

Updated: 10 April 2022; Ref: scu.131856

Firma Schwarzwaldmilch GmbH v Einfuhr- und Vorratsstelle fur Fettee (Judgment): ECJ 11 Jul 1968

Europa 1. Agriculture – common organization of the markets – milk – imports subject to the production of a licence – importation impossible during the term of validity of such licence – case of force majeure – ‘ engine failure ‘ within the meaning of article 6(3) of regulation no 136/64/eec of the commission – concept 2. Force majeure – concept 3. Agriculture – common organization of the markets – milk – importation subject to the production of a licence – importation impossible during the term of validity of such licence – case of force majeure relied on by the importer – evidence to be adduced (regulation no 136/64/eec, article 6(2)) 4. Agriculture – common organization of the markets – milk – importation subject to the production of a licence – importation impossible during the term of validity of such licence – case of force majeure – national courts – jurisdiction in cases not referred to in article 6(3) or not recognized by the national authorities in accordance with article 6(4) of regulation no 136/64/eec 1. The concept of ‘ engine failure ‘ referred to in article 6(3) of regulation no 136/64/eec does not include failures which occur in machinery intended for the production of goods. 2. As the concept of force majeure is not identical in the different branches of law and the various fields of application, the significance of this concept must be determined on the basis of the legal framework within which it is intended to take effect. Recognition of a case of force majeure presupposes that the consequences of the unusual event to which this concept relates cannot be avoided. 3. Within the meaning of regulation no 136/64/eec, when an importer relies on force majeure he must show that he was unable to effect the importation within the period laid down as a result of unusual circumstances outside his control, the consequences of which, in spite of the exercise of all due care on his part, he could not have avoided except at the cost of excessive sacrifice. 4. The courts of member states may, within the limits of their own jurisdiction, recognize the existence of a case of force majeure not only when the situation relied on is included in those enumerated in article 6(3) or when it has been recognized by the national authorities in accordance with paragraph (4), but also in other specific cases which justify the application of the exemption referred to in article 6(2).

Citations:

C-4/68

European, Agriculture

Updated: 10 April 2022; Ref: scu.131867

Firma Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn: ECJ 3 Apr 1968

Europa 1. European economic community – nature – natural or legal persons having rights and obligations – individuals – provisions of the treaty having direct effect – concept 2. Policy of the EEC – common rules – tax provisions – internal taxation imposed by one member state on products from other member states – prohibition on discrimination as compared with the tax burden on the domestic products of that state – nature and consequences of this rule – rights of individuals – protection of such rights by national courts (EEC treaty, article 95) 3. Policy of the EEC – common rules – tax provisions – internal taxation imposed by one member state on products from other member states – prohibition on discrimination as compared with charges on the domestic products of that state – a ‘ direct or indirect ‘ tax to be widely interpreted – taxation imposed on similar domestic products – concept (EEC treaty, article 95) 4. Policy of the EEC – common rules – tax provisions – cumulative multi-stage tax – average rates for imported products or groups of imported products within the meaning of the first paragraph of article 97 – no individual rights 5. Policy of the EEC – common rules – tax provisions – cumulative multi-stage tax – average rates for imported products or groups of imported products – establishment by member states – validity (EEC treaty, article 97). 1. The community constitutes a new legal order, for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the member states but also their nationals. Independently of the legislation of member states, community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community. In this connection, it is necessary and sufficient that the very nature of the provision of the treaty in question should make it ideally adapted to produce direct effects on the legal relationship between member states and those subject to their jurisdiction. Cf. Paragraph 3, summary, case 26/62 (1963) ECR 2. 2. The first paragraph of article 95 produces direct effects and creates individual rights which national courts must protect. Nevertheless, article 95 does not restrict the powers of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting individual rights conferred by community law. In particular when internal taxation is incompatible with the first paragraph of article 95 only beyond a certain amount, it is for the national court to decide, according to the rules of its national law, whether this illegality affects the taxation as a whole or only so much of it as exceeds that amount. Cf. Paragraph 2, summary, case 57/65, (1966) ECR 294. 3. The terms ‘ directly or indirectly ‘ appearing in the first paragraph of article 95 of the EEC treaty must be widely interpreted. By internal taxation imposed directly or indirectly on similar domestic products, this provision refers to all taxation which is actually and specifically imposed on the domestic product at all earlier stages of its manufacture and marketing or which correspond to the stage at which the product is imported from other member states. 4. The first paragraph of article 97, which applies where member states operating a turnover tax according to a cumulative multi – stage tax system have actually exercised the right therein granted to them, does not, in the present state of community law, create individual rights which national courts must protect. It is therefore not for national courts to appraise whether average rates established by member states conform to the principles of article 95. 5. In states which have exercised the power made available to them by article 97, rates are considered as ‘ average rates ‘ if they are established as such by the states in question, without prejudice to the operation of the second paragraph of that article.

Citations:

C-28/67

Cited by:

Cited – HM Revenue and Customs v Epson Telford Ltd ChD 4-May-2007
The parties disputed whether inkjet printer cartridges were to be classsified on import as parts of printers, and free of duty, or as ink and subject to duty.
Held: ‘I can see no reason why the advances in design and technology incorporated . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 10 April 2022; Ref: scu.131857

Firma Max Neumann v Hauptzollamt Hof/Saale (Judgment): ECJ 13 Dec 1967

Europa 1. Member states – sovereignty – limitation in favour of community institutions – fiscal sovereignty involved 2. Agriculture – common organization of the markets – levy – concept 3. Agriculture – common organization of the markets – levy – legality – validity of rules not affected by the nature of the levy 4. Agriculture – poultry meat – common organization of the markets – sluice-gate price – internal free-at-frontier price – levy – increase by the importing member state – legality (regulation no 22 of the council, article 6(3) and (4)) 5. Agriculture – poultry meat – common organization of the markets – imports from third countries – sluice-gate price – internal free-at-frontier price – levy – increase – individual offer prices not to be taken into consideration (regulation no 22 of the council, article 6(3); regulation nos 109/62 and 135/62 of the commission) 6. Institutions of the EEC – common provisions – regulations – entry into force – date – power of the institutions to fix that date – review by the court (EEC treaty, article 191) 1. When the member states conferred powers on the community institutions, they agreed to a corresponding limitation in their sovereign rights. In accordance with the treaty the fiscal sphere is not automatically excluded from those limitations. 2. The agricultural levy, which is based on community law, and not on national law, constitutes a change regulating external trade and is connected with a common price policy, whatever similarities it may have to a tax or a customs duty. 3. The treaty establishing the EEC conferred on the institutions of that community the right to establish systems of levy directly applicable in the member states in order to set up a common organization of agricultural markets; consequently the validity of the said regulation cannot be affected by the character of the levy thus established as either a customs duty or a tax. 4. Pursuant to article 6(3) and (4) of regulation no 22, the general methods of fixing the amounts additional to the levy are to be determined by the commission or, if necessary, by the council; the same provisions authorize the importing member state to fix the amount additional to the levy, whilst it falls within the powers of the commission or, if necessary, of the council according to the procedure laid down in article 17, when a decision has been taken to formulate a measure jointly. 5. The validity of regulation no 135/62 of the commission with regard to regulation no 22 of the council and regulation no 109/62 of the commission is not affected by the fact that it did not take into account the individual offer price in fixing the additional levy. 6. The liberty granted by the treaty to the authors of a regulation to fix the date of its entry into force cannot be considered as excluding any review by the court, particularly with regard to any retroactive effect.

Citations:

C-17/67

European

Updated: 10 April 2022; Ref: scu.131847

Societe ‘Eridania’ Zuccherifici Nazionali and others v Commission of the European Communities supported by Co Pro B – Cooperativa Produttori (Judgment): ECJ 10 Dec 1969

Europa 1. Measures adopted by an institution – application by an individual against a decision addressed to another person – decision of individual concern to him – criteria (EEC treaty, article 173) 2. Procedure – action for failure to act – measures referred to by article 173 of the EEC treaty – inadmissibility
1. The mere fact that a measure may exercise an influence on the competitive relationships existing on a particular market cannot suffice to allow any trader in any competitive relationship whatever with the addressee of the measure to be regarded as directly and individually concerned by that measure. Only the existence of specific circumstances may enable a person subject to community law and claiming that the measure affects his position on the market to bring proceedings under article 173. 2. The treaty provides, particularly in article 173, methods of recourse by which an allegedly illegal community measure may be disputed and if necessary annulled on the application of a duly qualified party. The party concerned who has requested the institution adopting the measure to revoke it cannot if the institution fails to act, bring such an omission before the court as being an illegal omission to deal with the matter. Such proceedings would amount to providing those concerned with a method of recourse parallel to that of article 173, which would not be subject to the conditions laid down by the treaty.

Citations:

C-10/68

Statutes:

EEC Treaty 173

European

Updated: 10 April 2022; Ref: scu.131871

Argia Pagotto (nee Cossutta) v Office National des Pensions pour Ouvriers (Judgment): ECJ 30 Nov 1967

Europa 1. Free movement of persons – migrant workers – old-age and death (pensions) insurance – calculation of benefits – application of the system provided for by articles 27 and 28 of regulation no 3 – the beneficiary’s objective situation to be considered
2. Free movement of persons – migrant workers – old-age and death (pensions) insurance – system based on insurance periods – amount of retirement pension varying solely according to insurance periods completed – rights to a pension acquired by claimant without aggregation of completed periods – articles 27 and 28 of regulation no 3 not applicable
3. Free movement of persons – migrant workers – old-age and death (pensions) insurance – simultaneous determination of pensions not obligatory (regulation no 3, article 28)
4. Free movement of persons – migrant workers – old-age and death (pensions) insurance – application of the system established by regulation no 3 – guarantee for persons concerned of benefits acquired by virtue of the legislative systems of member states – options granted by such legislation – waiver not required – time for exercising options determined by national legislation (regulation no 3, articles 27 and 28)

Citations:

C-18/67

European, Benefits

Updated: 10 April 2022; Ref: scu.131848

Bestuur der Sociale Verzekeringsbank v J H van der Vecht (Rec 1967,P 445) (Nl67-432 D 67-462 I 67-408 En67-345 Dk67-411 Gr67-617 P 67-683) (Judgment): ECJ 5 Dec 1967

Europa 1. Community law – uniform interpretation – versions existing in the four community languages to be taken into consideration 2. Free movement of persons – workers – social security – legislation applicable – employment and residence of beneficiaries in the territory of different member states – conveyance between the country of residence and country of employment – social security subject to the legislation in force in country of employment (regulation no 3, article 12) 3. Free movement of persons – workers – social security – legislation of member states other than that in which the workers are employed – legislation involving an increase in charges borne by workers without any corresponding advantage – inapplicability (regulation no 3, article 12) 4. Free movement of persons – workers – social security – administrative commission within the meaning of article 43 of regulation no 3 – courts and tribunals not bound by its decisions taken in pursuance of article 43 (a) of regulation no 3 5. Free movement of persons – workers – social security – legislation applicable – beneficiaries under article 13(a) of regulation no 3 (in the wording existing prior to the introduction of regulation no 24/64) 6. Free movement of persons – workers – social security – legislation applicable – residence of beneficiaries and registered office of undertaking by which they are employed in the territory of a member state other than that in which the work is carried out – probable duration of this employment within the meaning of article 13(a) of regulation no 3 (in the wording existing prior to the introduction of regulation no 24/64) 1. The need for a uniform interpretation of community regulations prevents the text of a provision from being considered in isolation, but in cases of doubt requires it to be interpreted and applied in the light of the versions existing in the other three languages. 2. A worker who is employed in the territory of one member state but who resides in the territory of another member state and who is conveyed at his employer’s expense between his place of residence and his place of employment remains subject to the legislation of the former state by virtue of article 12 of regulation no 3, even as regards that part of the journey which takes place in the territory of the state in which he resides and in which the undertaking is established. 3. Article 12 of regulation no 3 prohibits a member state other than that in whose territory a worker is employed from applying its social security legislation to such worker where to do so would lead to an increase in the charges borne by wage-earners or their employers, without any corresponding supplementary protection by way of social security. 4. Decisions taken by the administrative commission in pursuance of article 43(a) of regulation no 3 are not binding on national courts or tribunals. 5. Article 13(a) of regulation no 3, as worded prior to the introduction of regulation no 24/64, applies to a worker who is engaged solely for employment in the territory of a member state other than that in which the establishment to which he is normally attached is situated, in so far as the probable duration of his employment in the territory of the former state does not exceed twelve months. 6. The expression ‘ the probable duration of their employment ‘ used in article 13(a), as worded prior to the introduction of regulation no 24/64, refers to the duration of the employment of each individual worker.

Citations:

C-19/67

European, Benefits

Updated: 10 April 2022; Ref: scu.131849

Firma August Stier v Hauptzollamt Hamburg-Ericus (Judgment): ECJ 4 Apr 1968

Europa 1. Policy of the EEC – common rules – tax provisions – taxation – taxation forming part of a general tax applying without distinction to domestic and imported products – nature of internal taxation (EEC treaty, article 95) 2. Policy of the EEC – common rules – tax provisions – internal taxation imposed by a member state on products from member states – absence of similar domestic products or other products capable of being protected – permissibility – limits of right of a member state to impose taxation (EEC treaty, article 95). 1. Taxation levied within the framework of legislation relating to the turnover tax applying without distinction to all categories of products, whether domestic or imported, does not constitute a specific tax on imported products even if charged at the moment of importation. Cf. Paragraph 4, summary, judgment in case 25/67 (1968) ECR 207. 2. The provisions of article 95 of the EEC treaty do not prohibit member states from imposing internal taxation on imported products from other member states when there is no similar domestic product or other domestic product capable of being protected. Nevertheless it would not be permissible for member states to impose on such products charges of such an amount that the free movement of goods within the common market would be impeded as far as those products were concerned. Such a restraint on the free movement of goods cannot however be presumed to exist when the rate of taxation remains within the general framework of the national system of taxation of which the tax in question is an integral part. Cf. Paragraph 1, summary, judgment in case 27/67.

Citations:

C-31/67

European

Updated: 10 April 2022; Ref: scu.131860

Firma Kunstmuhle Tivoli v Hauptzollamt Wurzburg (Judgment): ECJ 4 Apr 1968

Europa 1. Policy of the EEC – common rules – tax provisions – imports from third countries – inapplicability of article 95 of the EEC treaty 2. Agriculture – common agricultural policy – common organization of the markets – turnover equalization tax – not a charge having an effect equivalent to that of custom duties (regulation no 19 of the council of the EEC on the progressive establishment of the market in cereals, article 20(1)). 1. Since the provisions of article 95 of the treaty establishing the European economic community relate only to products originating in member states, they cannot be applied to imports from a third country. 2. A tax which is levied within the framework of turnover tax legislation and is designed to place all categories of products, whatever their origin, in a comparable fiscal situation does not, in the absence of any protective intention, constitute a charge having an effect equivalent to a customs duty within the meaning of article 20(1) of regulation no 19 on the progressive establishment of a common organization of the market in cereals. Cf. Paragraph 1, summary, case 7/67. Cf. Paragraph 5, summary, case 57/65, (1966) ECR 295.

Citations:

C-20/67

European

Updated: 10 April 2022; Ref: scu.131850

I G F Van Leeuwen v City of Rotterdam (Judgment): ECJ 8 Feb 1968

Europa 1. EEC officials – privileges and immunities – exemption from national taxes and levying of a community tax – complementary nature of the provisions relating thereto – scope of the exemption from national taxes (protocol on privileges and immunities of the EEC, article 12) 2. EEC officials – privileges and immunities – charge or due representing the consideration for a service rendered by public authorities – exemption not justified (protocol on the privileges and immunities of the EEC, article 12). 1. It is as a result of the first paragraph of article 12 of the protocol on the privileges and immunities of the EEC, which provides for the payment of a tax on salaries, wages and emoluments of officials and other servants of the community for the benefit of the community, that the second paragraph of article 12 exempts salaries, wages and emoluments from national taxes, so that article 12 taken as a whole ensures a uniform treatment of the said salaries, wages and emoluments for all the officials and servants of the community, preventing, first and chiefly, their effective remuneration from differing according to their nationality or fiscal domicile as a result of the assessment of different national taxes, and secondly preventing this remuneration from being inordinately taxed as a result of double taxation. It appears from this context that the second paragraph of article 12 refers, like the first paragraph, to national taxes on salaries, no matter what form such taxes take or whatever they are called. Cf. Paragraph 6, summary, case 6/60, (1960) ECR 1129. 2. A charge or due representing the consideration for a given service rendered by the public authorities is not a tax within the meaning of the second paragraph of article 12 of the protocol on the privileges and immunities of the community annexed to the EEC treaty, even if this charge or due is calculated on the basis of the salary paid by the community to the person liable.

Citations:

C-32/67

European

Updated: 10 April 2022; Ref: scu.131861

Caisse Regionale De Securite Sociale Du Nord v Goffart (Judgment): ECJ 30 Nov 1967

Europa 1. Free movement of persons – migrant workers – insurance – benefit – aggregation and calculation pro rata – calculation of a pension the right to which is conferred in several member states but which is paid in one state only (regulation no 3, article 28(1)(b) and (f)) 1. Article 51 is intended to confer on a migrant worker the benefit arising from the community regulations without however diminishing the rights which he would have had if those regulations had not been applied. This objective would be disregarded if the worker were obliged, in order to avail himself of the freedom of movement which is guaranteed to him, as a result of the entry into force of the community regulations, to suffer the loss of rights already acquired in one of the member states under that state’s own legislation. 2. Article 28(1)(f) of regulation no 3 of the EEC applies both to cases in which the person concerned does not satisfy the conditions required for the payment of benefit and to cases in which he does not satisfy the conditions for conferment of the right to such benefit. A migrant worker whose rights to an old-age pension have been calculated in accordance with the legislation of two member states under the provisions of article 28(1)(a) and (b) of regulation no 3 of the council of the EEC concerning social security for migrant workers but to whom payment of the fraction of the pension payable by one of them has been suspended, is entitled to obtain from the social security institution of the other member state an amount of pension calculated solely in accordance with the legislation of that state and taking account of the insurance periods completed under that legislation.

Citations:

C-22/67

European, Benefits

Updated: 10 April 2022; Ref: scu.131851

Claude Moise Sayag and S A Zurich v Jean-Pierre Leduc, Denise Thonnon, spouse of Leduc, and S A La Concorde (Judgment): ECJ 11 Jul 1968

Europa 1. Official of the EAEC – privileges and immunities – immunity from legal proceedings – object (protocol on the privileges and immunities of the European communities, article 12(a)) 2. Official of the EAEC – privileges and immunities – immunity from legal proceedings – extent – driving of a motor vehicle (protocol on the privileges and immunities of the European communities, article 12(a)) 1. The immunity from legal proceedings referred to in article 12(a) of the protocol on the privileges and immunities of the European communities (article 11(a) of the protocol on the privileges and immunities of the EAEC) is intended to ensure that the official activity of the community and of its servants is shielded from examination in the light of any criteria based on the domestic law of member states so that the community may accomplish its task in complete independence. 2. (A) the immunity from legal proceedings only covers acts which, by their nature, represent a participation of the person entitled to the immunity in the performance of the tasks of the institution to which he belongs; in this respect there is no necessity to distinguish between the actual exercise of normal duties or those prescribed under the staff regulations and an act performed on the occasion of the exercise of those duties if the position is that the act in question serves directly for the accomplishment of a community task. (B) driving a motor vehicle cannot be covered by immunity from legal proceedings save in the exceptional cases in which this activity cannot be carried out otherwise than under the authority of the community and by its own servants.

Citations:

C-5/68

Jurisdiction:

European

European

Updated: 10 April 2022; Ref: scu.131868

Firma Gebruder Luck v Hauptzollamt Koln-Rheinau (Judgment): ECJ 4 Apr 1968

Europa 1. Policy of the EEC – common rules – tax provisions – cumulative multi-stage tax – average rates for imported products or groups of imported products within the meaning of the first paragraph of article 97 – no individual rights 2. Policy of the EEC – common rules – tax provisions – taxation imposed on domestic products – concept (EEC treaty, article 95) 3. Policy of the EEC – common rules – tax provisions – rights conferred on individuals by community law – powers of national courts for the purpose of protecting such rights (EEC treaty, article 95). 1. Cf. Paragraph 4, summary, case 28/67. (1968) ECR 143. The first paragraph of article 97, which applies where member states operating a turnover tax according to a cumulative multi-stage tax system have actually exercised the right therein granted to them, does not, in the present state of community law, create individual rights which national courts must protect. It is therefore not for national courts to appraise whether average rates established by member states conform to the principles of article 95. */ 667j0028 /*. 2. The concept of taxation imposed on a domestic product within the meaning of article 95 of the treaty means the tax burden which results from the application of the rate of tax fixed by law. 3. Article 95 of the treaty has the effect of excluding the application of any national measure incompatible with it. However, the article does not restrict the powers of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting the individual rights conferred by community law. Particularly when an internal tax is incompatible with the first paragraph of article 95 only beyond a certain amount, it is for the national court to decide, according to the rules of its national law, whether the illegality affects the whole tax or only so much of it as exceeds that amount. It is also for that court to decide whether the rules of national law which conflict with the said provision must be repealed or whether they are void as from 1 January 1962, or to select any other solution. Cf. Paragraph 2, summary, case 28/67.

Citations:

C-34/67

European

Updated: 10 April 2022; Ref: scu.131863

Firma Milch-, Fett- und Eierkontor GmbH v Hauptzollamt Saarbrucken (Judgment): ECJ 4 Apr 1968

Europa 1. Policy of the EEC – common rules – tax provisions – cumulative multi-stage tax – average rates for imported products within the meaning of the first paragraph of article 97 – no individual rights 2. Policy of the EEC – common rules – tax provisions – cumulative multi-stage tax – average rates for imported products or groups of imported products – establishment by member states – validity (EEC treaty, article 97) 3. Customs duties and internal taxation – joint applicability to the same case of provisions relating thereto – impossibility of such joint application (EEC treaty, articles 12, 13 and 95) 4. Policy of the EEC – common rules – tax provisions – taxation intended to put national products and imported products in a comparable tax position – nature of internal taxation (EEC treaty, article 95). 1. Cf. Paragraph 4, summary, case 28/67. (1968) ECR 143. The first paragraph of article 97, which applies where member states operating a turnover tax according to a cumulative multi-stage tax system have actually exercised the right therein granted to them, does not, in the present state of community law, create individual rights which national courts must protect. It is therefore not for national courts to appraise whether average rates established by member states conform to the principles of article 95. */ 667j0028 /*. 2. Cf. Paragraph 5, summary, case 28/67. (1968) ECR 143. In states which have exercised the power made available to them by article 97, rates are considered as ‘average rates’ if they are established as such by the states in question, without prejudice to the operation of the second paragraph of that article. */ 667j0028 /*. 3. Cf. Paragraph 4, summary, case 57/65, (1966) ECR 205. Articles 12 and 13, on the one hand, and article 95 on the other cannot be applied jointly to one and the same case. */ 665j0057 /*. 4. A tax which is levied within the framework of turnover tax legislation and is designed to place all categories of products both domestic and imported in a comparable tax situation constitutes ‘ internal taxation ‘ within the meaning of article 95.

Citations:

C-25/67

European, Customs and Excise

Updated: 10 April 2022; Ref: scu.131854

Firma E Kampffmeyer and others v Commission of the EEC (Judgment): ECJ 14 Jul 1967

Europa 1. Procedure – proceedings in matters arising from non-contractual liability – period for bringing proceedings – limitation (statute of the court of justice of the EEC, article 43) 2. Procedure – proceedings in matters arising from non-contractual liability for reparation for the same damage brought both against the EEC and a member state – necessity for a decision of the national court before a decision by the court of justice 3. Non-contractual liability – damage resulting from an act illegal under community law and the law of a member state – existence of a right to reparation against the EEC dependent upon proof of the prior exhaustion of all methods of recourse under national law (EEC treaty, article 215) 4. Non-contractual liability – injury suffered owing to the reliance of a person subject to the jurisdiction of the EEC on the apparent legality of an administrative act held to be illegal – compensation (EEC treaty, article 215) 5. Non-contractual liability – injury resulting from loss of profit – necessity for the performance of the transaction envisaged to have been at least commenced (EEC treaty, article 215) 6. Agriculture – common organization of the markets – cereals – protective measures taken by member states – examination by the commission (regulation no 19, article 22) 7. Agriculture – common organization of the markets – cereals – regulation no 19 – sphere of application – general interests concerned – possibility of protection of individual interests 1. It follows from the actual wording of the second and third sentences of article 43 of the statute of the court of justice of the EEC that these provisions are not intended to shorten the period of limitation of five years but that they are intended to protect those concerned by preventing certain periods from being taken into account in the calculation of the said period. Consequently the aim of the third sentence of article 43 is merely to postpone the expiration of the period of five years when proceedings instituted or a prior application made within this period start time to run in respect of the periods provided for in articles 173 or 175. 2. If, for the purposes of obtaining compensation for the same damage, two actions are brought, one against a member state before a national court and one against the EEC before the court of justice, it is necessary to avoid the applicant’s being insufficiently or excessively compensated because of the different assessment of two different courts applying different rules of law. For that reason the final judgment of the court cannot be given before the decision of the national court on the matter. 3. When there is damage resulting from an act illegal according to community law and the law of a member state, it is appropriate to ask the applicant to prove that he has exhausted all methods of recourse, both administrative and judicial, under the national law applicable for obtaining repayment of sums improperly paid. Only after production of such proof is it appropriate to consider whether any damage exists which the community should make good. 4. Damage suffered by a person subject to the jurisdiction of the EEC by reason of the fact that he has relied on the legality of an unlawful administrative act must be made good. 5. Compensation for loss of profit following a wrongful act or omission presupposes that the performance of the commercial transaction in question has at least been commenced. 6. In exercising the powers conferred upon it by article 22 of regulation no 19, the commission is required in respect of each protective measure notified to it to conduct as exhaustive an examination as that required to be made by the member states and bears independent responsibility for the retention of protective measures. 7. Even though in essence they refer to interests of a general nature, the provisions of regulation no 19 may also ensure the protection of individual interests such as those of the producers of member states and of persons subject to the jurisdiction of the EEC participating in intra-community trade.

Citations:

C-5/66

European, Limitation

Updated: 10 April 2022; Ref: scu.131823

Federal Republic of Germany v Commission of the EEC (Judgment): ECJ 16 Jun 1966

Europa Customs duties – charges having equivalent effect – concept (EEC treaty, article 13) Customs duties – charges having equivalent effect – elimination – obligations of member states – nature (EEC treaty, article 13) Customs duties – charges having equivalent effect – elimination – time-table – detailed rules of progression – powers of the commission (EEC treaty, articles 13 and 14) European economic community – legal system of the community – community institution – failure to fulfil its obligations – member state – retaliatory measures – prohibition

Citations:

C-52/65

European, Customs and Excise

Updated: 10 April 2022; Ref: scu.131812

Max Gutmann v Commission of the EAEC (Judgment): ECJ 5 May 1966

Europa 1. Officials – disciplinary measures – statement of reasons for – cannot be supplemented by oral communication of the grounds of complaint alleged against the official concerned – inadequacy of statement of reasons not justified by concern to protect the reputation of the official concerned (EAEC staff regulations, articles 25, 86 and 88) 2. Officials – transfer – discretionary powers of the administration – transfer otherwise than in the interests of the service may constitute misuse of powers (EAEC staff regulations, articles 25 and 29) 3. Misuse of powers – proof 1. For disciplinary measures the grounds of complaint based on the conduct of the official concerned must be indicated, at least in brief, to enable the court to exercise its power of review, in particular with regard to the seriousness of the offence. Oral communication to the official concerned of the complaints alleged against him cannot be deemed to supplement the statement of reasons for a disciplinary measure since the court cannot take it into account in assessing the considerations by which the administration was guided in its actions. Any concern on the part of the administration to safeguard the reputation of an official who has been subjected to a disciplinary measure cannot be invoked to justify the inadequacy of the statement of reasons thereof, since the measure must remain confidential. 2. Transfer of an official in the interests of the service cannot constitute an act adversely affecting him and falls within the discretionary powers of the administration, which may arrange its departments and move its staff as required for the performance of the tasks assigned to it. However, a transfer may amount to a misuse of powers if it appears, on the basis of objective, relevant and consistent facts, to have been undertaken for purposes other than those stated. 3. Misuse of powers must be proved on the basis of objective, relevant and consistent sources of information.

Citations:

C-18/65

European

Updated: 10 April 2022; Ref: scu.131790

Societe anonyme Cimenteries C B R Cementsbedrijven N V and others v Commission of the European Economic Community (Judgment): ECJ 15 Mar 1967

Europa Measures adopted by an institution – decision – concept (EEC treaty, article 189) 2. Policy of the EEC – rules on competition applicable to undertakings – infringements – fines – exemption – refusal by the commission – procedure to be followed before giving a refusal – statement of reasons (EEC treaty, articles 85, 86; regulation no 17 of the council of the EEC, article 15, paragraphs 5 and 6) 1. When a community institution unequivocally adopts a measure the legal effects of which are binding on those to whom it is addressed and affect their interests, this measure by its very nature constitutes a decision. 2. The commission must proceed by way of a decision when it excludes an agreement from the benefit of an exemption from a fine under article 15(5) of regulation no 17 and declares on the basis of article 15(6) of the said regulation that article 85(1) of the treaty applies, and that application of article 85(3) is not justified. The commission must consider the facts of the case, and apply to them the terms of article 85(1)(3). It must expressly find that the agreement in question contains all the constituent elements prescribed by article 85(1) and that application of article 85(3) is not justified. The commission must give reasons for this decision with sufficient clarity to allow the court and all parties concerned to ascertain whether the provisions mentioned above have been applied correctly.

Citations:

C-8/66

European

Updated: 10 April 2022; Ref: scu.131824

Max Gutmann v Commission of the EAEC (Judgment): ECJ 15 Mar 1967

Europa Officials – disciplinary measures – disciplinary proceedings – criteria for initiating such proceedings (staff regulations of officials of the European Communities, article 86) – disciplinary proceedings must be based not on general complaints capable of referring to an indeterminate and unverifiable number of reprehensible matters, but rather on facts which are sufficiently clearly defined to make it possible to distinguish them from other grounds of complaint.

Citations:

C-18/65

European

Updated: 10 April 2022; Ref: scu.131791

Italian Republic v Council of the European Economic Community and Commission of the European Economic Community (Judgment): ECJ 13 Jul 1966

Europa 1. Policy of the EEC – rules on competition applicable to undertakings – regulations to be adopted by the council – discretionary powers of the latter – scope (EEC treaty, article 87) 2. Policy of the EEC – rules on competition applicable to undertakings – agreements – prohibition – exemption for categories of agreements – no pre-conceived judgment thereby passed on these agreements (EEC treaty, article 85) 3. Policy of the EEC – rules on competition applicable to undertakings – articles 85 and 86 of the EEC treaty – no distinction in these provisions based on the levels of the undertakings in the economy 4. Policy of the EEC – rules of competition applicable to undertakings – competition – concept (EEC treaty, article 85) 5. Policy of the EEC – rules of competition applicable to undertakings – exclusive dealing agreements – prohibition under article 85(1) of the EEC treaty possible 6. Regulations of the EEC – plea of inapplicability – may only be raised when the regulation in question is applicable to the issue with which the application is concerned (EEC treaty, article 184) 1. On questions of competition the council of the EEC may decide whether a particular regulation is appropriate and adopt it on the basis of a specific principle contained in articles 85 and 86 of the EEC treaty. There is no obligation on it to deal exhaustively with all the principles set out in these articles nor is it required to adopt rules simultaneously for applying the other provisions of the said articles. 2. To define a category of agreements is only to make a classification, and means only that the agreements which come within it may be prohibited by article 85(1). Therefore to grant exemptions under article 85(3) by categories of agreements cannot amount, even by implication, to passing any pre-conceived judgment on any agreement considered individually. 3. Neither the wording of article 85 nor that of article 86 justifies interpreting either of these articles with reference to the level in the economy at which undertakings carry on business. 4. The competition mentioned in article 85(1) means not only any possible competition between the parties to the agreement, but also any possible competition between one of them and third parties. 5. Even if it does not involve an abuse of a dominant position, an exclusive dealing agreement may affect trade between member states and at the same time have as its object or effect the prevention, restriction or distortion of competition, and thus fall under the prohibition in article 85(1). 6. The intention of article 184 of the EEC treaty is not to allow a party to contest at will the applicability of any regulations in support of any application. The regulation of which the legality is called in question must be applicable, directly or indirectly, to the issue with which the application is concerned.

Citations:

C-32/65

European

Updated: 10 April 2022; Ref: scu.131802

Teresa Guerra, widow of Pietro Pace v Institut national d’assurance maladie-invalidite (Judgment): ECJ 5 Jul 1967

Europa Free movement of persons – migrant workers – insurance – languages – authorities of member states within the meaning of article 45(4) of regulation no 3 – national courts to be included therein – the courts of a member state having jurisdiction in social security matters are included amongst the authorities within the meaning of article 45(4) of regulation no 3, which may not reject claims, or other documents submitted to them, on the grounds that they are written in an official language of another member state.

Citations:

C-6/67

European

Updated: 10 April 2022; Ref: scu.131836

Societe Technique Miniere (L T M ) v Maschinenbau Ulm GmbH (M B U ) (Judgment): ECJ 30 Jun 1966

Europa 1. Procedure – preliminary ruling – jurisdiction of the court – limits (EEC treaty, article 177) 2. Procedure – preliminary ruling – jurisdiction of the court – interpretation (EEC treaty, article 177) 3. Policy of the EEC – rules on competition applicable to undertakings – cartels – prohibition based on economic assessment – category of agreements as determined by their legal nature – no advance judgment with regard to such category (EEC treaty, article 85) 4. Policy of the EEC – rules on competition applicable to undertakings – notification of agreements to the commission – failure to notify – effects (EEC treaty, article 85, regulation no 17/62, article 4, and regulation no 153/62) 5. Policy of the EEC – rules on competition applicable to undertakings – cartels – prohibition – conditions (EEC treaty, article 85) 6. Policy of the EEC – rules on competition applicable to undertakings – articles 85 and 86 of the EEC treaty – no distinction in these provisions based on the levels of the undertakings in the economy 7. Policy of the EEC – rules on competition applicable to undertakings – agreements which may affect trade between member states – concept (EEC treaty, article 85) 8. Policy of the EEC – rules on competition applicable to undertakings – agreements interfering with competition – criteria (EEC treaty, article 85) 9. Policy of the EEC – rules on competition applicable to undertakings – automatic nullity within the meaning of article 85(2) of the EEC treaty – void contractual provisions – consequence for the remainder of the agreement 10. Policy of the EEC – rules on competition applicable to undertakings – exclusive dealing agreements falling under the prohibition contained in article 85(1) 1. Cf. Para. 2, summary, case 6/64 (1964) ECR 585f. Article 177 is based upon a clear separation of functions between national courts and the court of justice and cannot empower the latter either to investigate the facts of the case or to criticize the grounds and purpose of the request for interpretation. */ 664j0006 /*. 2. Cf. Para. 1, summary, case 6/64 (1964) ECR 585f. In the context of requests for preliminary rulings, the court has no jurisdiction either to apply the treaty to a specific case or to decide upon the validity of a provision of domestic law in relation to the treaty, as it would be possible for it to do under article 169. Nevertheless, the court has power to extract from a question imperfectly formulated by the national court those questions which alone pertain to the interpretation of the treaty. */ 664j0006 /*. 3. Article 85(1) of the EEC treaty is based on an economic assessment of the effects of an agreement and cannot therefore be interpreted as introducing any kind of advance judgment with regard to a category of agreements determined by their legal nature. 4. The fact that an agreement is not notified to the commission pursuant to regulations nos 17/62 and 153/62 cannot make an agreement automatically void. It can only have an effect as regards exemption under article 83(3) if it is later established that this agreement is one which falls within the prohibition laid down in article 85(1). 5. The prohibition of an agreement depends on one question alone, namely whether, taking into account the circumstances of the case, the agreement, objectively considered, contains the elements constituting the said prohibition, set out in article 85(1). 6. Cf. Para. 3, summary, case 32/65 (1966) ECR 389. Neither the wording of article 85 nor that of article 86 justifies interpreting either of these articles with reference to the level in the economy at which undertakings carry on business. */ 665j0032 /*. 7. In order that an agreement may affect trade between member states it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or of fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between member states. The influence thus foreseeable must give rise to a fear that the realization of a single market between member states might be impeded. In this respect, it is necessary to consider in particular whether the agreement is capable of bringing about a partitioning of the market in certain products between member states. 8. In considering whether an agreement has as its object the interference with competition within the common market it is necessary first to consider the precise purpose of the agreement in the economic context in which it is to be applied. The interference with competition referred to in article 85(1) must result from all or some of the clauses of the agreement itself. Where an analysis of the said clauses does not reveal the effect on competition to be sufficiently deleterious, the consequences of the agreement should then be considered, and for it to be caught by the prohibition it is then necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent. The competition must be understood within the actual context in which it would occur in the absence of the agreement in dispute. 9. The automatic nullity of an agreement within the meaning of article 85(2) of the EEC treaty only applies to those parts of the agreement affected by the prohibition, or to the agreement as a whole if it appears that those parts are not severable from the agreement itself. Any other contractual provisions which are not affected by the prohibition fall outside community law. 10. An exclusive dealing agreement may fall under the prohibition in article 85(1) by reason of a particular factual situation or of the severity of the clauses protecting the exclusive dealership. Cf. Para. 5, summary, case 32/65 (1966) ECR 389.

Citations:

C-56/65

European

Updated: 10 April 2022; Ref: scu.131815

Hans Dieter Mosthaf v Commission EAEC (Judgment): ECJ 15 Dec 1966

Europa Measures adopted by an institution – definitive nature – criteria 2. Procedure – judgment granting annulment – legal effects – limited to the parties and to the persons directly concerned by the measure annulled – judgment constituting a new factor – concept 3. Measures adopted by an institution – annulment dependent on a new factor – criteria – principle of legal certainty to be taken into consideration 1. A measure containing a specific decision made without any reservations must be regarded as final in the absence of material factors clearly and consistently indicating the contrary. 2. Cf. Para. 4, summary, case 43/64, (1965) ECR 385. Apart from the actual parties in proceedings before the court, the only persons concerned by the legal effects of a judgment of the court annulling a measure are, the persons directly affected by the measure which is annulled. Such a judgment can only constitute a new factor as regards those persons. */ 664j0043 /*. 3. Protection of the certainty of legal positions and relationships implies that the existence of decisions of community authorities governing such positions and relationships cannot for ever be called in question.

Citations:

C-34/65

European

Updated: 10 April 2022; Ref: scu.131804

Alfons Lutticke GmbH v Hauptzollamt Sarrelouis (Judgment): ECJ 16 Jun 1966

Europa Member states of the EEC – absolute obligation under the treaty – concept – rights of individuals – protection of such rights by national courts Policy of the EEC – common rules – tax provisions – internal taxation of one member state imposed on the products of other member states – prohibition of discrimination as compared with charges on the domestic products of that state – entry into force of this rule – its nature and consequences – rights of individuals – protection of such rights by national courts (EEC treaty, article 95) Customs duties and internal taxation – joint applicability to the same case of provisions relating thereto – impossibility of such joint application (EEC treaty, articles 12, 13, 95) Policy of the EEC – common rules – tax provisions – internal taxation – charges intended to offset its effect – nature of internal taxation (EEC treaty, article 95)

Citations:

C-57/65

European

Updated: 10 April 2022; Ref: scu.131816

Office national des pensions pour ouvriers v Marcel Couture (Judgment): ECJ 12 Dec 1967

Europa Free movement of persons – migrant workers – old-age and death (pensions) insurance – calculation of benefits – application of the system provided for by articles 27 and 28 of regulation no 3 – the beneficiary’s objective situation to be considered. Free movement of persons – migrant workers – old-age and death (pensions) insurance – system based on insurance periods – amount of retirement pension varying solely according to insurance periods completed – rights to a pension acquired by claimant without aggregation of completed periods – articles 27 and 28 of regulation no 3 not applicable. Free movement of persons – migrant workers – old-age and death (pensions) insurance – simultaneous determination of pensions not obligatory (regulation no 3, article 28). Free movement of persons – migrant workers – old-age and death (pensions) insurance – application of the system established by regulation no 3 – guarantee for persons concerned of benefits acquired by virtue of the legislative systems of member states – options granted by such legislation – waiver not required – time for exercising options determined by national legislation (regulation no 3, articles 27 and 28).

Citations:

C-11/67

European, Benefits

Updated: 10 April 2022; Ref: scu.131840