Criminal Proceedings Against Zwartveld and Others: ECJ 13 Jul 1990

Europa European Communities – Institutions – Obligations – Duty to cooperate with national authorities acting to ensure respect for Community law – Implementation – Disclosure of documents and authorization of officials to give evidence – Legitimate grounds of refusal – Review by the Court
The Community institutions’ duty of sincere cooperation with the judicial authorities of the Member States which are responsible for ensuring that Community law is applied and respected in the national legal system does not preclude a refusal to disclose documents or to authorize officials to give evidence where there are legitimate grounds relating to the protection of the rights of third parties or where there may be interference with the functioning and independence of the Communities. In the case of such refusal the institution concerned must provide the Court with the information required to allow it to decide whether the refusal is justified.

Citations:

C-2/88, [1990] EUECJ C-2/88I, [1990] ECR I-3365

Links:

Bailii, Bailii

Cited by:

CitedCommission v Council (Police And Judicial Cooperation In Criminal Matters) ECJ 13-Sep-2005
The Commission sought anullment of Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law. The framework decision laid down a number of environmental offences, in respect of which the Member States are . .
CitedBarron and Others v Collins QBD 16-May-2016
The defendant MEP sought an order staying the defamation action brought against her by four MPs from the Rotherham area. She said that as an MEP she had a procedural immunity. She had informed the European Commission that she sought the protection . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 23 May 2022; Ref: scu.134782

Ice Mountain Ibiza v EUIPO – Marbella Atlantic Ocean Club (Ocean Ibiza): ECFI 25 May 2016

ECJ (Judgment) Brand of the European Union – Opposition proceedings – trade mark of the figurative EU ibiza ocean – Earlier national figurative marks OC and OC ocean club ocean club Ibiza – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8, paragraph 1 b) of Regulation (EC) No 207/2009

Citations:

T-6/15, [2016] EUECJ T-6/15, ECLI: EU: T: 2016 310

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009

Jurisdiction:

European

Intellectual Property

Updated: 23 May 2022; Ref: scu.564882

Ranocchia v ERCEA: ECFI 5 Feb 2018

Judgment – Research and technological development – Calls for proposals and related activities under the 2015 Work Program of the ERC – Framework Program for Research and Innovation (2014-2020) – Horizon 2020 – ERCEA Decision declaring it ineligible Applicant’s proposal – Project concerning the identification of mathematical algorithms to facilitate the reading and analysis of certain ancient manuscripts – Misuse of powers – Error of fact – Error of law – Manifest error of assessment

Citations:

ECLI: EU: T: 2018: 68, [2018] EUECJ T-208/16

Links:

Bailii

Jurisdiction:

European

European

Updated: 23 May 2022; Ref: scu.604736

Commission v Italy C-73/79: ECJ 21 May 1980

ECJ (Judgment) A measure carried out by means of discriminatory taxation, which may be considered at the same time as forming part of an aid within the meaning of article 92 of the EEC treaty, is governed both by the provisions of the first paragraph of article 95 and by those applicable to aids granted by states. It follows that discriminatory tax practices are not exempted from the application of article 95 by reason of the fact that they may at the same time be described as a means of financing a state aid.
2. If the Commission charges a member state with practices which constitute an infringement of article 95 of the EEC treaty and if on that basis it has initiated the procedure under article 169 that procedure does not lose its purpose because the commission takes the view that the same practices form part of a system of aids incompatible with the common market and initiates the procedure provided for in article 93.
3. Authorization under article 38 of regulation ( EEC ) no 3330/74 to grant the aids provided for therein cannot be taken to mean that any method of financing such aids, whatever its character or conditions, is compatible with community law. On the contrary, the financing of the aid granted, the national authorities remain in particular subject to the obligations arising under the EEC treaty.
4. In an interpretation of the concept ‘internal taxation’ for the purposes of article 95 of the EEC treaty it may be necessary to take into account the purpose to which the revenue from the charge is put. In fact, if the revenue from such a charge is intended to finance activities for the special advantage of the taxed domestic products it may follow that the charge imposed on the basis of the same criteria on domestic and imported products nevertheless constitutes discriminatory taxation in so far as the fiscal burden on domestic products is neutralized by the advantages which the charge is used to finance whilst the charge on the imported products constitutes a net burden.
It follows that internal taxation is of such a nature as indirectly to impose a heavier burden on products from other member states than on domestic products if it is used exclusively or principally to finance aids for the sole benefit of domestic products.
5. The fact that the financial burdens arising from the imposition of a charge are passed on to the consumers does not alter the legal nature of the charge in question as regards article 95 of the EEC treaty.

Citations:

C-73/79, [1980] EUECJ C-73/79, [1980] ECR 1533

Links:

Bailii

Jurisdiction:

European

Cited by:

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

European

Updated: 21 May 2022; Ref: scu.132864

Hoffmann-La Roche v Commission: ECJ 13 Feb 1979

ECJ Observance of the right to be heard is required in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed as a fundamental principle of community law. It must be respected even if the proceedings in question are administrative proceedings.
In the matter of competition and in the context of proceedings for a finding of infringements of articles 85 or 86 of the treaty, observance of the right to be heard requires that the undertakings concerned must have been afforded the opportunity to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the commission in support of its claim that there has been an infringement.
The obligation on the commission under article 20 (2) of regulation no 17 to observe professional secrecy must be reconciled with the right to be heard. By providing undertakings from whom information has been obtained with a guarantee that their interests, which are closely connected with observance of professional secrecy, are not jeopardized, that provision enables the commission to collect on the widest possible scale the requisite data for the fulfilment of its task of supervision without the undertakings being able to prevent it from doing so ; the commission may not however use, to the detriment of an undertaking in proceedings for a finding of an infringement of the rules on competition, facts or documents which it cannot in its view disclose if such a refusal of disclosure adversely affects that undertaking’s opportunity to make known effectively its views on the truth or implications of those facts or documents or again on the conclusions drawn by the commission from them.
Europa
If a product could be used for different purposes and if these different uses are in accordance with economic needs, which are themselves also different, there are good grounds for accepting that this product may, according to the circumstances, belong to separate markets which may present specific features which differ from the standpoint both of the structure and of the conditions of competition. However this finding does not justify the conclusion that such a product together with all the other products which can replace it as far as concerns the various uses to which it may be put and with which it may compete, forms one single market. The concept of the relevant market in fact implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.
The dominant position referred to in article 86 of the treaty relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers. Such a position does not preclude some competition, which it does where there is a monopoly or a quasimonopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment.
Very large market shares are highly significant evidence of the existence of a dominant position. Other relevant factors are the relationship between the market shares of the undertaking concerned and of its competitors, especially those of the next largest, the technological lead of the undertaking over its competitors, the existence of a highly developed sales network and the absence of potential competition.

Europa The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position within the meaning of article 86 of the treaty, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the said undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position.
Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny other producers access to the market.

Europa The abuse of a dominant position and the restriction of competition as attributes of the contracts in question are not avoided by the so-called” english” clause contained in them whereby the purchasers undertake to notify the undertaking in a dominant position of any more favourable offer made to them by competitors and are free, if that undertaking does not adjust its prices to the said offer, to obtain their supplies from competitors. In these circumstances a clause of this kind is such as to enable the undertaking in a dominant position to realize an abuse of that dominant position.
The effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply.

Citations:

C-85/76, [1979] EUECJ C-85/76, [1979] ECR 461

Links:

Bailii

Cited by:

CitedAttheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
CitedChester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Lists of cited by and citing cases may be incomplete.

European, Commercial, Natural Justice

Updated: 21 May 2022; Ref: scu.132487

Ruckdeschel and Others v Hauptzollamt Hamburg-St Annen: ECJ 19 Oct 1977

Europa The wording of the second subparagraph of article 40(3) of the Treaty does not refer in clear terms to the relationship between different industrial or trade sectors in the sphere of processed agricultural products . This does not alter the fact that the prohibition of discrimination laid down in the aforesaid provision is merely a specific enunciation of a general principle of equality which is one of the fundamental principles of community law. This principle requires that similar situations shall not be treated differently unless differentiation is objectively justified.
The provisions of article 11 of regulation no 120/67/eec of the council of 13 june 1967, as worded with effect from 1 august 1974 following the amendment made by article 5 of regulation ( eec ) no 1125/74 of the council of 29 april 1974, and repeated in subsequent regulations, are incompatible with the principle of equality in so far as they provide for quellmehl and pre-gelatinized starch to receive different treatment in respect of production refunds for maize used in the manufacture of these two products.
In the particular circumstances of the case, this finding of illegality does not inevitably involve a declaration that a provision of regulation (eec) no 1125/74 is invalid. The illegality of article 5 of regulation ( eec ) no 1125/74 cannot be removed merely by the fact that the court , in proceedings under article 177, rules that the contested provision was in part or in whole invalid . As the situation created, in law, by article 5 of regulation (eec) no 1125/74 is incompatible with the principle of equality, it is for the competent institutions of the community to adopt the measures necessary to correct this incompatibility.

Citations:

C-117/76, R-117/76, [1977] EUECJ R-117/76

Links:

Bailii

European

Updated: 21 May 2022; Ref: scu.132514

Silvana Di Paolo v Office national de l’emploi: ECJ 17 Feb 1977

ECJ The concept of the member state in which the worker resides, appearing in article 71(1)(b)(ii) of regulation no 1408/71, must be limited to the state where the worker, although occupied in another member state, continues habitually to reside and where the habitual centre of his interests is also situated. The addition of the words ‘or who returns to that territory’ implies merely that the concept of residence in a state does not necessarily exclude non-habitual residence in another member state. For the purposes of applying article 71(1)(b)(ii), account should be taken of the length and continuity of residence before the person concerned moved, the length and purpose of his absence, the nature of the occupation found in the other member state and the intention of the person concerned as it appears from all the circumstances.

Citations:

R-76/76, [1977] EUECJ R-76/76, C-76/76

Links:

Bailii

Jurisdiction:

European

European

Updated: 21 May 2022; Ref: scu.132479

Commission v McBride And Others: ECJ 14 Jun 2016

ECJ (Judgment) Appeal – Resource conservation measures and restructuring of the fisheries sector – Requests for increased safety tonnage – Annulment by the European Union judicature of the decision initially rejecting those requests – Article 266 TFEU – Repeal of the legal basis on which that initial decision was founded – Competence and legal basis to adopt new decisions – Annulment by the General Court of new decisions rejecting the requests – Principle of legal certainty

Citations:

ECLI:EU:C:2016:434, [2016] EUECJ C-361/14

Links:

Bailii

Statutes:

TFEU 266

Jurisdiction:

European

Agriculture

Updated: 20 May 2022; Ref: scu.565600

Kuhne + Nagel International And Others v Commission: ECFI 29 Feb 2016

ECJ (Judgment) Competition – Cartels – International air transit services – Decision finding an infringement of Article 101 TFEU – Extra charges and pricing mechanisms that affect the final price – Effect on trade between Member States – Assessment errors – Duration of offense – amount of the fine – Paragraph 13 of the guidelines for calculating the amount of fines 2006 – sales value – mitigating circumstances – Proportionality – Rights of the defense

Citations:

T-254/12, [2016] EUECJ T-254/12, ECLI:EU:T:2016:113

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560485

EGL And Others v Commission (Judgment): ECFI 29 Feb 2016

ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Definition of the market – Effect on trade between Member States – Cooperation – Partial immunity from a fine

Citations:

T-251/12, [2016] EUECJ T-251/12, ECLI:EU:T:2016:114

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560481

Commission v Portugal C-200/15: ECJ 16 Jun 2016

ECJ (Judgment) Failure to fulfill obligations – Article 110 TFEU – Internal taxation – Discriminatory taxation – used motor vehicles imported from other Member States – Determination of taxable value – Depreciation Rates

Citations:

ECLI: EU: C: 2016 453, C-200/15, [2016] EUECJ C-200/15

Links:

Bailii

Jurisdiction:

European

Taxes – Other

Updated: 20 May 2022; Ref: scu.565601

Brandgroup v OHMI – Brauerei S Riegele, Inh. Riegele (Spezoomix): ECFI 1 Mar 2016

ECJ (Judgment) Community trade mark – Opposition proceedings – Application for Community word mark SPEZOOMIX – Earlier Community word mark Spezi – Relative ground for refusal – Likelihood of confusion – Article 8, paragraph 1 b) of Regulation (EC) No 207 / 2009

Citations:

T-557/14, [2016] EUECJ T-557/14, ECLI:EU:T:2016:116

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009

Jurisdiction:

European

Intellectual Property

Updated: 20 May 2022; Ref: scu.560500

Commission v Netherlands C-22/15: ECJ 25 Feb 2016

ECJ (Judgment) Failure to fulfill obligations – Tax on value added – Directive 2006/112 / EC – Exemptions – Article 132, paragraph 1, sub m) – Services closely associated with sport or physical education – exemption for the leasing of berths and sites for storage of boats for water sports association members through navigation or recreation activities that can not be equated with sport or physical education – exemption from income limited to members of watersports associations that do not employ staff for the provision of services – Excluded – Article 133, first paragraph d)

Citations:

ECLI:EU:C:2016:118, [2016] EUECJ C-22/15

Links:

Bailii

Statutes:

Directive 2006/112/EC 132

Jurisdiction:

European

European, VAT

Updated: 20 May 2022; Ref: scu.560478

Deutsche Bahn And Others v Commission (Judgment): ECFI 29 Feb 2016

ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Evidence contained in an application for immunity – Protection of the confidentiality of communications between lawyers and clients – Code of Conduct rules on the duty of loyalty and prohibition on double representation – Fiduciary duties – Whether unlawful conduct can be attributed – Choice of companies – Fines – Proportionality – Gravity of the infringement – Mitigating circumstances – Equal treatment – Cooperation – Partial immunity from a fine – Unlimited jurisdiction – Settlement – 2006 Guidelines on the method of setting fines

Citations:

T-267/12, [2016] EUECJ T-267/12

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560480

Netherlands v Commission C-59/70: ECJ 6 Jul 1971

ECJ 1. It follows from the common purpose of articles 33 and 35 that the requirements of legal certainty and of the continuity of community action underlying the time-limits for bringing proceedings laid down in article 33 must also be taken into account – having regard to the special difficulties which the silence of the competent authorities may involve for the interested parties – in the exercise of the rights conferred by article 35. Where the commission fails to act the interested parties are therefore bound to raise the matter with the commission within a reasonable period. This is so a fortiori once it is clear that the commission has decided to take no action.
2. The duty of cooperation imposed on member states by articles 86 must prompt a member state which considers that a measure adopted by another member state is contrary to the treaty to resort to the procedures or means of legal action placed at its disposal by the treaty in sufficient time to ensure that effective intervention is still possible and that the position of third parties is not needlessly called in issue.

Citations:

[1971] EUECJ C-59/70

Links:

Bailii

Jurisdiction:

European

European

Updated: 20 May 2022; Ref: scu.131948

SpA Salgoil v Italian Ministry of Foreign Trade: ECJ 19 Dec 1968

ECJ 1. Procedure – preliminary ruling – jurisdiction of the court – limits (EEC treaty, article 177) 2. Procedure – preliminary ruling – reference to the court by a national court or tribunal – applicability of the provision referred for interpretation – express statement not obligatory (EEC treaty, article 177) 3. Quantitative restrictions – abolition – creation of new restrictions and intensifying of existing restrictions prohibited – individual rights – protection of the same – detailed rules for application – variation according to national legal systems (EEC treaty, first paragraph of article 31; first paragraph of article 32) 4. Quantitative restrictions – global quotas – calculation – discretion of member states – no individual rights (EEC treaty, article 32, article 33) 5. Member states – protective measures – strict interpretation (EEC treaty, article 36, article 224, article 226) 1. The court has no jurisdiction when dealing with a reference under article 177 either to take cognizance of the facts of the case or to criticize the reasons for the reference. In particular, it has no jurisdiction to decide whether one or other of the provisions referred for an interpretation is applicable to the case at issue. There is therefore a valid reference to the court in so far as the quotation of the provision in question is not incorrect on the face of it. 2. A national court or tribunal which refers a question to the court under article 177 of the EEC treaty is not required to state expressly that the provision which appears to it to call for an interpretation is applicable. 3. (A) once the lists of liberalized products have been supplied, or at the latest once the time-limit laid down in the second paragraph of article 31 of the EEC treaty for the supply of these lists has expired, article 31 produces direct effects on the relationships between a member state and those subject to its jurisdiction, and creates rights in favour of the latter which national courts must protect. (B) the first paragraph of article 32 produces the same effects and creates the same rights. (C) the abovementioned provisions require the authorities, and in particular the relevant courts of the member states, to protect the interests of those persons subject to their jurisdiction who may be affected by any possible infringement of the said provisions, by ensuring for them direct and immediate protection of their interests. However, it is for the national legal system to determine which court of tribunal has jurisdiction to give this protection and, for this purpose, to decide how the individual position thus protected is to be classified. 4. As regards the data for and the methods of calculating ‘ global quotas ‘, ‘ total value ‘ and ‘ national production ‘ within the meaning of paragraph (1) and the first subparagraph of paragraph (2) of article 33 of the EEC treaty, several solutions may be envisaged. Therefore the member states are left with some discretion concerning their obligations relating to these concepts. Accordingly, the abovementioned provisions and the last sentence of article 32 of the EEC treaty do not apply in a sufficiently precise way to be capable of producing direct effects on the relationships between the member states and those subject to its jurisdiction. 5. The provisions of articles 36, 224 and 226 of the EEC treaty deal with exceptional cases which are clearly defined and which do not lend themselves to any wide interpretation. They cannot therefore be relied upon so as to deny that article 31 of the treaty is directly applicable in its effects.

Citations:

[1968] ECR 453, [1969] CMLR 181, C-13/68, R-13/68, [1968] EUECJ R-13/68

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131874

Feram v Commission (Judgment): ECJ 16 Mar 1971

1. The recommendations drawn up by the council upon the giving of an assent cannot have the effect of restricting or modifying the express powers conferred by the decision which is the subject of that assent.
The legality of decisions taken in implementation of a general decision which has been the subject of an assent can therefore be examined only on the basis of the actual provisions of that general decision.
2. The inevitable and inherent disadvantages in the equalization scheme which, of its nature, necessitates a posteriori calculations for the fixing of the rate do not constitute damage giving a right to compensation.
3. The existence of frauds does not alone suffice to prove that the administration has failed in its duty of supervision and consequently is guilty of a wrongful act or omission.

Citations:

C-70/69, [1971] EUECJ C-70/69

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131890

Zuckerfabrik Watenstedt GmbH v Council of the European Communities (Judgment): ECJ 11 Jul 1968

Europa Measures adopted by an institution – regulation – concept (EEC treaty, article 189). A measure which is applicable to objectively determined situations and which involves legal consequences for categories of persons viewed in a general and abstract manner constitutes a regulation. Cf. Paragraph 3, summary, joined cases 16 and 17/62, (1962) ECR 471. A measure which abrogates a provision of general application or places a time-limit on its applicability partakes of the general nature of the latter provision. Cf. Paragraph 2, summary, joined cases 36 to 38, 40 and 41/58, (1958-1959) ECR 335. A measure does not lose its character as a regulation simply because it may be possible to ascertain with a greater or lesser degree of accuracy the number or even the identity of the persons to which it applies at any given time as long as there is no doubt that the measure is applicable as the result of an objective situation of law or of fact which it specifies and which is in harmony with its ultimate objective. The fact that a legal provision may have different practical effects on the different persons to whom it applies in no way contradicts its nature as a regulation provided that the situation to which it refers is objectively determined.

Citations:

C-6/68, [1968] EUECJ C-6/68

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131869

Commission of the European Communities v Italian Republic: ECJ 10 Dec 1968

ECJ 1. Obligations of member states – failure to fulfil – action by the commission before the court of justice – bringing the action – timing – discretion of the commission (EEC treaty, article 169) 2. Free movement of goods – goods – concept – article possessing artistic or historic value (EEC treaty, article 9) 3. Free movement of goods – articles possessing artistic or historic value – charges on exports – charge having an effect equivalent to a customs duty (EEC treaty, article 16) 4. Free movement of goods – customs duties and quantitative restrictions – nature of each – difference – prohibitions and restrictions for the protection of national treasures – special nature – strict construction (EEC treaty, articles 16 and 36) 5. Free movement of goods – prohibitions and restrictions for the protection of national treasures – limits to be observed by member states regarding the object and nature of the means adopted – incompatibility with the treaty of a charge on the export of articles of artistic or historic value (EEC treaty, article 36) 1. It is for the commission, under article 169 of the treaty, to judge at what time it shall bring an action before the court; and the considerations which determine its choice of time cannot affect the admissibility of the action, which follows only objective rules. 2. By goods, within the meaning of article 9 of the EEC treaty, there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. The rules of the common market apply to articles possessing artistic or historic value subject only to the exceptions expressly provided by the treaty. 3. Any charge which, by altering the price of an article exported, has the same restrictive effect on the free circulation of that article as a customs duty is deemed to be a charge having an effect equivalent to a customs duty within the meaning of article 16 of the EEC treaty. A tax levied on the exportation of articles possessing artistic or historic value falls within the prohibition contained in article 16 by reason of the fact that export trade in the goods in question is hindered by the pecuniary burden which it imposes on the price of the exported articles. 4. The prohibitions or restrictions on imports and exports referred to in article 36 of the EEC treaty are by nature clearly distinguished from customs duties and assimilated charges whereby the economic conditions of importation or exportation are affected without restricting the freedom of decision of those involved in commercial transactions. Because such measures constitute an exception to the fundamental principle of the elimination of all obstacles to the free movement of goods between member states, they must be strictly construed. 5. The prohibitions and restrictions referred to in article 36 of the EEC treaty cannot justify the retention of measures, such as customs duties or charges having equivalent effect, which fall outside the scope of the prohibitions referred to in the chapter relating to the elimination of quantitative restrictions between member states. In order to avail themselves of article 36, member states must observe the limitations imposed by that provision both as regards the objective to be obtained and as regards the nature of the means used to attain it. The levy of a tax on the exportation of goods possessing artistic or historic value is incompatible with the provisions of the treaty.

Citations:

C-7/68, [1968] EUECJ C-7/68

Links:

Bailii

European, Commercial, Customs and Excise

Updated: 20 May 2022; Ref: scu.131870

X v Audit Board (Judgment): ECJ 7 May 1969

Europa A mistake made by the applicant in designating the relevant provision cannot lead to the inadmissibility of the submission put forward. The disciplinary authority does not prejudice the rights of the defence by imposing a disciplinary sanction in the absence of the official concerned, when that absence is attributable exclusively to the behaviour of the latter.

Citations:

C-12/68, [1969] EUECJ C-12/68, [1970] EUECJ C-12/68

Links:

Bailii, Bailii

European

Updated: 20 May 2022; Ref: scu.131872

Plaumann v Commission EEC (Order): ECJ 31 Aug 1962

ECJ (Order) The applicant bases its application on the claim that, even if in the main action the court were to annul the refusal of the commission to grant to the federal republic of germany an import quota for clementines for 1962 at the rate of 10% instead of the normal rate of 13%, this decision would come too late to prevent imports, in particular those to be made in the last quarter of that year, from being charged in the meantime with customs duty at 13%. The applicant maintains that on these grounds and because it is afraid that, even if it were successful in the main action, it would be unable according to german customs practice to recover the amounts overpaid, it has a compelling interest in the federal government’s being authorized, pending judgment on the main issue, to levy a customs duty of only 10% on the importation of clementines and to accept security for the remaining 3%, this to be forfeited if the application be dismissed, with the result that the customs duty would then be paid at the rate of 13%.
the applicant is thus asking for more than a mere suspension of the operation of the decision which it is contesting. It seeks rather to prejudge the results by assuming beyond doubt that these will lead to a decision in its favour in the main action, that is to say, that the commission will then be required in each case to grant the contested authorization and moreover that the federal government will avail itself of this authorization and, indeed, with retroactive effect.
it is true that article 186 of the eec treaty does not clearly exclude such measures; nevertheless so far-reaching an interim measure could be justified only by wholly exceptional circumstances and if there were very good reasons for thinking that the party concerned would otherwise suffer serious and irreparable damage.
it may be assumed, and it is not disputed by the applicant, that the latter, even if the present application were accepted, would have to take account, in fixing the prices to be paid by its customers, of the risk of an unfavourable decision in the main action. It therefore matters little whether the interim measure asked for is adopted or not because it can have no influence on the fixing of prices. On these grounds alone it is in no way proved that failure to repay the customs duties overpaid would, in any event, cause damage to the applicant. On the other hand it is very possible that the repayment would redound to its especial advantage.
moreover it is by no means certain that the customs duties overpaid would not be repaid to the applicant in whole or in part if the applicant succeeded in the main action. Even if it must be admitted that the tax regulations in force in the federal republic of germany give the applicant no unconditional right to repayment, the competent administrative authorities would be at liberty to use their discretion in making such repayment. If the federal republic were to avail itself for 1962 of an authorization resulting from the applicants’ possible success in the main action it is not improbable that the authorities would act on those lines, especially as the federal government, according to the applicant’s own statement, views its arguments favourably.
moreover it must not be overlooked that the applicant would have the opportunity to act directly by availing itself of the methods of recourse provided under german law against decisions of the german customs authorities imposing on it duties amounting to 13%.
for these reasons the urgency of and the necessity for the measure requested have not been sufficiently established.
in these circumstances it is not necessary to examine the other arguments set out by the defendant on the admissibility and validity of the application for the adoption of an interim measure and of the application in the main action.

Citations:

(1963) ECR 95, C-25/62, [1962] EUECJ C-25/62R

Links:

Bailii

Cited by:

DoubtedJego-Quere et Cie SA v Commission of the European Communities ECFI 3-May-2002
The applicant complained that he had been individually affect by a European Instrument. The commission objected that he did not have sufficient standing to challenge the instrument.
Held: The former law that an individual had to be affected in . .
OrderPlaumann v Commission EEC ECJ 21-Dec-1962
ECJ The declaration of the federal minister of finance set out above and produced by the applicant in fact removes the foundation from the statement in the second paragraph of the grounds of the order of 31 . .
OrderPlaumann v Commission EEC ECJ 15-Jul-1963
ECJ (Judgment) 1. A measure must be considered as a decision if it refers to a particular person and binds that person alone.
2. The words and the natural meaning of the second paragraph of article 173 of . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 20 May 2022; Ref: scu.131660

The Polo/Lauren Co LP v PT Dwidua Langgeng Pratama International Freight Forwarders Case: ECJ 14 Apr 2000

Council regulations empowered customs officers of member states to seize goods suspected of being counterfeit or pirated and in breach of Trade Mark and other laws This applied even to goods which were merely seized in transit through a member state, from a non-EU source to a non-EU destination. The validity of the regulation was not capable of doubt, and no factor had been identified which could challenge its validity. The wording of the regulation expressly envisaged such action.

Citations:

Times 14-Apr-2000, C-383/98, [2000] EUECJ C-383/98

Links:

Bailii

Cited by:

CitedNokia Corporation v Revenue and Customs ChD 27-Jul-2009
Nokia sought judicial review of a decision of the Commissioners to release a consignment of goods which it said were infringing counterfeits of its own models. The Commissioners said that in the absence of evidence that they were intended for . .
Lists of cited by and citing cases may be incomplete.

European, Customs and Excise, Intellectual Property

Updated: 20 May 2022; Ref: scu.89840

Shanning International Ltd v Lloyds TSB Bank plc; Lloyds TSB Bank plc v Rasheed Bank and another: ComC 17 Dec 1999

The parties were linked together by a series of bonds, deposits, and guarantees and indemnities which had been designed to enable trade with a customer in Iraq. The Regulation operated to prevent any claim being made under the bond, and therefore the bank could not resist an action for the repayment of a deposit on the basis that it might be called upon under its own bond.

Judges:

Langley J

Citations:

Times 19-Jan-2000, [1999] EWHC 280 (Comm)

Links:

Bailii

Statutes:

Regulation (EEC) No 3541/92

Cited by:

Appeal fromShanning International Limited (In Liquidation) v Lloyds TSB Bank Plc (Formerly Lloyds Bank Plc) Part 20 and Rasheed Bank and Sbg Holdings Limited Part 20 CA 25-May-2000
. .
At first instanceShanning International Ltd (in liquidation) v Lloyds Bank plc Lloyds Bank plc v Rasheed Bank HL 2-Jul-2001
Under a series of cross guarantees, equipment was supplied to Iraq. Final payment was due on delivery of the final equipment. Before it could be delivered, the prohibitions came into effect against satisfying or making any claims in connection with . .
Lists of cited by and citing cases may be incomplete.

Banking, European

Updated: 20 May 2022; Ref: scu.89188

Societe Generale Des Grandes Sources D’Eaux Minerales Francaises v Bundesant Fur Finanzen: ECJ 9 Sep 1998

Where original VAT invoice was lost a duplicate should be accepted for refund claim even though from other member state where there was no doubt about the transaction, and the loss was not the fault of the taxpayer, and no risk of double reclaim of VAT duty.

Citations:

Gazette 09-Sep-1998, C-361/96, Ecj/Cfi Bulletin 15/98, 7, [1998] EUECJ C-361/96

Links:

Bailii

Jurisdiction:

European

VAT, European

Updated: 20 May 2022; Ref: scu.89369

Sa Chaussure Bally v Ministry of Finance Belgium: ECJ 20 Sep 1993

The Vatable amount is based on what a purchaser pays ignoring any commissions.

Citations:

Ind Summary 20-Sep-1993, Times 22-Jul-1993, C-18/92, C-18/92, [1993] EUECJ C-18/92

Links:

Bailii

Cited by:

CitedRevenue and Customs v Debenhams Retail Plc CA 18-Jul-2005
The store introduced a system whereby when a customer paid by credit card, the charges made to them for card handling were expressed as a separate amount on the receipt. The store then said that VAT was payable only on the net amount allocated to . .
Lists of cited by and citing cases may be incomplete.

VAT, Consumer, European, VAT

Updated: 20 May 2022; Ref: scu.88964

O’Brien v Ministry of Justice: SC 12 Jul 2017

The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a retirement pension falls due for payment. The directive applies ratione temporis where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directive’s entry into force, the directive applies to the future effects of that situation.’
Case referred to the ECJ: ‘Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non-discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part-time worker, if they would be taken into account when calculating the pension of a comparable full-time worker?’

Judges:

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC

Citations:

[2017] UKSC 46, [2017] WLR(D) 478, [2017] IRLR 939, [2017] ICR 1101

Links:

Bailii, Bailii Summary, WLRD

Statutes:

Council Directive 97/81/EC, Judicial Pensions Act 1981, Judicial Pensions and Retirement Act 1993, Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Citing:

See AlsoDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
See AlsoO’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At ECJO’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC(1)O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
At EATThe Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Appeal fromO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
CitedIstituto nazionale della previdenza sociale (INPS) v Lotti, Matteucci (Social Policy) ECJ 10-Jun-2010
EU Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
CitedIstituto nazionale della previdenza sociale (INPS) v Bruno, Pettini (Social Policy) ECJ 10-Jun-2010
Europa Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
CitedCommission v Moravia Gas Storage ECJ 26-Mar-2015
Judgment – Appeals – Internal market in natural gas – Obligation of natural gas undertakings – Organisation of a system of negotiated third party access to gas storage facilities – Decision of the Czech authorities – Temporary exemption for future . .
CitedTen Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .

Cited by:

Reference to ECJMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 20 May 2022; Ref: scu.589261

Rockfon A/S v Specialarbejderforbunde I Danmark Acting for Nielsen and Others: ECJ 17 Jan 1996

The term ‘establishment’ for the purpose of consultation on contemplated redundancies meant the work unit to which the relevant workers were assigned: ‘The term ‘establishment’ appearing in Article 1(1)(a) of Directive (75/129/EEC) must therefore be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an ‘establishment’, for the unit in question to be endowed with a management which can independently effect collective redundancies.
That interpretation is supported by the fact that the Commission’s initial proposal for a Directive uses the term ‘undertaking’ and that that term was defined in the last sub-paragraph of Article 1(1) of the proposal as ‘local employment unit’. It appears, however, that the Council decided to replace the term ‘undertaking’ by the term ‘establishment’, which meant that the definition originally contained in the proposal and considered to be superfluous was deleted.
The answer to the second part of the preliminary question must therefore be that the term ‘establishment’ appearing in Article 1(1)(a) . . must be understood as meaning, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an ‘establishment’ for the unit in question to be endowed with a management which can independently effect collective redundancies.’

Citations:

Times 17-Jan-1996, C-449/93, [1995] EUECJ C-449/93, [1996] IRLR 168, [1996] ICR 673, [1996] CEC 224, [1995] ECR I-4291

Links:

Bailii

Statutes:

Directive 79/129/EEC L48/29

Cited by:

CitedMSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
CitedBrookes and 334 Others v Borough Care Services and CLS Care Services Ltd EAT 4-Aug-1998
Where a transfer of a business had been arranged by way of a transfer of shares rather than of the business and particularly in order to avoid the Regulations, the transfer of shares took effect as a transfer of the undertaking and so the . .
CitedAthinaiki Chartopoiia AE v L Panagiotidis and Others, third party: Geniki Sinomospondia Ergaton Elladas (GSEE) ECJ 15-Feb-2007
ECJ Free Movement of Persons – Collective redundancies – Council Directive 98/59/EC Article 1(1)(a) – Termination of the establishment’s activities of the employer’s own volition – Concept of ‘establishment’.
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88831

Rotsart de Hertaing v Benoidt and IGC Housing Service (In Liquidation) and Another: ECJ 14 Nov 1996

ECJ Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses – Transfer to the transferee of the rights and obligations arising from a contract of employment – Date of transfer.

Citations:

Times 25-Nov-1996, [1997] IRLR 127, C-305/94, [1996] EUECJ C-305/94

Links:

Bailii

Statutes:

EC Directive 77/187/EEC

Cited by:

CitedNorth Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88875

Regina v Customs and Excise Commissioners, Ex Parte EMU Tabac Sarl and Others (Imperial Tobacco Ltd, Intervener): ECJ 9 Apr 1998

Excise duty is payable on cigarettes imported as if personal imports but by use of agent in Luxembourg organising he imports as a commercial enterprise.

Citations:

Times 09-Apr-1998, C-296/95, [1998] EUECJ C-296/95

Links:

Bailii

Customs and Excise, European

Updated: 19 May 2022; Ref: scu.88432

Regina v Secretary of State for Trade and Industry ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union: ECJ 26 Jun 2001

The rule in United Kingdom law under which the entitlement to be paid annual leave arose only after an employee had been continuously employed for 13 weeks, did not satisfy European law. Members of the applicant trade union were typically employed on short term repeating contracts and did not receive paid annual holidays. The Directive sought to improve working conditions for employees. There were certain derogations, but not from Article 7, the particular applicable condition. The right was a social right directly conferred on each worker, and the UK regulations were incompatible with that right.

Citations:

Times 28-Jun-2001, C-173/99, [2001] EUECJ C-173/99

Links:

Bailii

Statutes:

Council Directive 93/104/EC concerning certain aspects of the organisation of working time, Working Time Regulations 1998 (1998 No 1833) 13(7)

Cited by:

CitedMunro v M P B Structures Ltd IHCS 1-Apr-2003
The respondent firm paid their staff holiday pay by adding a proportion to each wage packet. The employee complained that this was in breach of the regulations.
Held: The Regulations gave effect to the directive. The directive treated holiday . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88660

Regina v Ministry of Agriculture Fisheries and Food Ex Parte Hedley Lomas (Ireland) Ltd: ECJ 23 May 1996

The wrongful prevention by a state of the lawful export of animals gave rise to a right to claim for damages.
LMA The UK had refused to grant licences for the export of live sheep to Spain, on the grounds that the slaughterhouses were not complying with the terms of an EC Directive requiring the stunning of animals before slaughter. The UK conceded they were in breach of the Treaty provision on export restrictions but argued that it was justified on the grounds of animal welfare.
Held: This was a sufficiently serious breach, on the basis of

  • Lack of discretion left to MS
  • Clarity of the Treaty provision breached
  • Absence of an established ground for justification.
    Where MS was not called upon to make any legislative choices and had considerably reduced/no discretion – a mere infringement of community law may be sufficient to establish ‘as sufficiently serious breach’
  • Citations:

    Times 06-Jun-1996, [1996] ECR 1 2553, C-5/94, [1997] QB 139, [1996] EUECJ C-5/94

    Links:

    Bailii

    Cited by:

    CitedRegina v Ministry of Agriculture, Fisheries and Food ex parte Lay and Gage Admn 15-May-1995
    The claimants sought damages for the wrong interpretation of the law by the Ministry, which had restricted their rights to milk quota.
    Held: Making an administrative decision which was in breach of European law was not enough in itself to . .
    CitedOakley Inc v Animal Ltd and others CA 20-Oct-2005
    It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
    Lists of cited by and citing cases may be incomplete.

    Agriculture, European

    Updated: 19 May 2022; Ref: scu.87360