Tag: European

Commission v Netherlands: ECJ 11 Jan 1996

ECJ (Judgment) Under Articles 1(5) and 8(1) of Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, Member States are required to communicate to the Commission forthwith, irrespective of the effects which it may have on trade between Member States, any draft technical specifications, the observance of which is compulsory in the case of the marketing or use of a product in its territory. A Member State fails to fulfil that obligation where, without notifying it to the Commission at the drafting stage, it adopts a regulation derogating from a decree on the manufacture of margarine by authorizing the use, under specified conditions, of substitute products listed therein.

Citations:

C-273/94, [1996] EUECJ C-273/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161440

FMC and others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food: ECJ 8 Feb 1996

ECJ 1. Since, under the common organization of the markets in sheepmeat and goatmeat, the purpose of charging clawback is to avoid disruption of intra-Community trade arising from the application of the variable slaughter premium, it must be charged in such a way that it neutralizes the effect of the premium on departure from the region concerned of the products which benefited from it, without working to the advantage of producers in that region, as would be the case if the amount charged by way of clawback were lower than that of the premium granted, or affecting their competitive position, as would be the case if the clawback were higher than the premium.
There is no doubt that the first of the two options provided for by Regulation No 1922/92 relating to methods of calculating the clawback to be charged or to be reimbursed in the case of undue payment, which is available to traders who are in a position to supply proof to the competent authorities of the Member State concerned of the amount of the premium actually granted for products subject to clawback, is consistent with the objective pursued by the system of charging clawback, since it fixes the amount thereof at the same level as the premium granted.
As regards the proof that must be adduced in connection with the first option, it does not seem to be manifestly inappropriate for exporters to bear the burden of proof. Article 9(3) of Regulation No 1837/80 and Article 24(5) of Regulation No 3013/89, both establishing a common organization of the markets in sheepmeat and goatmeat, clearly laid down that the amount of the clawback was to be equal to that of the premium, so that a prudent trader, aware that he was liable to pay the clawback, had to take proper steps to obtain the necessary evidence attesting to the equivalence of the amounts in question.
Furthermore, the exporter knows the identity of the trader from whom he bought the products on which he is required to repay the clawback, so that he is best placed to adduce the requisite proof. Moreover, where it is impossible for the exporter to adduce such proof, Regulation No 1922/92 has by means of the second option provided for a different method of calculating the clawback.
The second option, which is based on the average value of the premium rates in force over a period of four weeks which must perforce include both the time when the product was first placed on the market and the time when it was exported, is likewise consistent with the purpose of clawback. On the one hand, it enables the fluctuations in clawback to be reduced significantly compared with those occurring under the old system of calculation, which was declared invalid, according to which the clawback was equal to the amount of the premium fixed solely for the week of export of the products concerned, and, on the other, the use of an average calculated over four weeks ensures that the amount of the clawback is as close as possible to that of the premium.
2. The requirement of proof laid down in Article 4(1) of Regulation No 1633/84, concerning the system for charging clawback within the common organization of the markets in sheepmeat and goatmeat, as amended by Article 1 of Regulation No 1922/92, and in Article 2 of the latter regulation, laying down the conditions for reimbursement of clawback unduly charged, is to be interpreted as meaning that traders are required to supply proof to the satisfaction of the competent authorities of the Member State concerned, in accordance with national law and within the period prescribed by Regulation No 1922/92, of the amount of the premium actually granted for products subject to clawback, provided that the applicable national rules do not affect the scope or effectiveness of Community law.
In that regard, and taking into account the duty of cooperation in good faith imposed on national authorities by Article 5 of the EC Treaty which forbids them to undermine either the effect or the effectiveness of Community law, the detailed procedural rules laid down by the applicable national law cannot be less favourable than those governing similar domestic procedures nor render virtually impossible or excessively difficult the implementation of Community legislation and thereby affect the exercise of rights conferred by the Community legal system.
3. As regards claims for repayment of clawback unduly paid prior to 10 March 1992, paragraph 30 of the judgment in Joined Cases C-38/90 and C-151/90 Lomas and Others [1992] ECR I-1781 is to be interpreted as meaning that traders or those entitled through them who prior to that date initiated proceedings or made an equivalent complaint under the applicable national law may rely on the invalidity of Article 4(1) and (2) of Regulation No 1633/84 concerning the system for charging clawback within the common organization of the markets in sheepmeat and goatmeat, as from the date of its entry into force, subject to the application, within the limits set by Community law, of any national rules limiting the period prior to the submission of a claim in respect of which repayment of a sum unduly paid may be obtained.
4. With regard to matters not governed by Article 2 of Regulation No 1922/92, amending Regulation No 1633/84 laying down detailed rules for applying the variable slaughter premium and determining the conditions for the reimbursement of clawback unduly charged, national courts called upon to give judgment on a claim for reimbursement of clawback unduly charged must apply their national law, provided the detailed rules laid down therein are not less favourable than those governing similar domestic actions and are not so framed as to render virtually impossible or excessively difficult the exercise of rights conferred by the Community legal system.
In that respect, a rule of national law, by virtue of which a sum paid to a public authority under a mistake of law may be recovered only if it was paid under protest, manifestly fails to satisfy those conditions, in that it is liable to prejudice effective protection of the rights conferred on the traders in question by Community law. Moreover, Article 2(1) of Regulation No 1922/92 expressly specifies the persons entitled to claim reimbursement without making the claim conditional on their conduct at the time of payment.
On the other hand, Community law does not prevent a national legal system from refusing to allow recovery of sums unduly charged where that would involve the unjust enrichment of those entitled.

Citations:

C-212/94, [1996] EUECJ C-212/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161398

Birkenbeul v Hauptzollamt Koblenz: ECJ 28 Mar 1996

Judgment – Regulation No 3019/86 imposing a provisional anti-dumping duty on imports of standardized multi-phase electric motors and Regulation No 864/87 imposing a definitive anti-dumping duty on the same imports must be interpreted as applying only to imports of standardized multi-phase electric motors which are complete or finished.
That interpretation is supported, inter alia, by the fact that the Community authorities decided, in the interests of transparency and efficiency and in order to induce exporters to raise their prices, to impose a duty, in the form of a variable duty equal to the difference between a minimum price and the price to the first independent buyer, which, unlike an ad valorem duty, cannot be satisfactorily applied to incomplete motors or motor parts. It is not possible either to calculate the duty payable on an incomplete motor by reference to the difference between its price and the minimum price fixed for a complete motor, since the result would be to impose a higher duty on the incomplete motor than on the complete, or to make a specific calculation of the duty on the incomplete motor, since the regulation does not set any minimum prices for incomplete motors.

Citations:

C-99/94, [1996] EUECJ C-99/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161326

Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano: ECJ 30 Nov 1995

Practice by lawyers in other European jurisdictions were governed by the general principles of freedom of establishment under the Treaty: ‘National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.’
ECJ A national of a Member State who pursues a professional activity on a stable and continuous basis in another Member State where he holds himself out from an established professional base to, amongst others, nationals of that State comes under the chapter relating to the right of establishment and not the chapter relating to services. As appears from the third paragraph of Article 60 of the Treaty, the rules on freedom to provide services cover – at least where the provider moves in order to provide his services – the situation in which a person moves from one Member State to another, not for the purposes of establishment there, but in order to pursue his activity there on a temporary basis. The temporary nature of the activities in question has to be determined in the light of its duration, regularity, periodicity and continuity. This does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question. 3. The possibility for a national of a Member State to exercise his right of establishment, and the conditions for his exercise of that right, must be determined in the light of the activities which he intends to pursue on the territory of the host Member State. Where the taking-up of a specific activity is not subject to any rules in the host State, a national of any other Member State will be entitled to establish himself and pursue that activity there. On the other hand, where the taking-up or the pursuit of a specific activity is subject to certain conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them. Such conditions, which may consist in particular of an obligation to hold particular diplomas, to belong to a professional body or to comply with certain rules of professional conduct or with rules relating to the use of professional titles, must fulfil certain requirements where they are liable to hinder or make less attractive the exercise of a fundamental freedom guaranteed by the Treaty, such as freedom of establishment. There are four such requirements: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it. As far as conditions relating to the possession of a qualification are concerned, Member States must take account of the equivalence of diplomas and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned.
The court accepted that it does not have jurisdiction under the preliminary reference procedure to rule on the compatibility of a national measure with EU law

Citations:

Times 13-Dec-1995, C-55/94, [1995] ECR 1-4165, [1995] EUECJ C-55/94

Links:

Bailii

Statutes:

EC Treaty 43, Council Directive 77/249/EEC

Jurisdiction:

European

Citing:

Cited – Ordre des avocats au Barreau de Paris v Onno Klopp ECJ 12-Jul-1984
Europa In laying down that freedom of establishment shall be attained at the end of the transitional period, article 52 imposes an obligation to attain a precise result the fulfilment of which must be made easier . .
Cited – Groupement National des Negociants en Pommes de Terre de Belgique Belgapom) v ITM Belgium SA and Vocarex SA ECJ 11-Aug-1995
European Community quantitative restrictions on import not relevant to every states legislation. Measures applying equally to all traders within a member state were not discriminatory.
Trade between Member States is not likely to be impeded, . .
Cited – Jean Reyners v Belgian State ECJ 21-Jun-1974
Europa The rule on equal treatment with nationals is one of the fundamental legal provisions of the community. As a reference to a set of legislative provisions effectively applied by the country of establishment . .
Cited – Jean Thieffry v Conseil de l’ordre des avocats a la cour de Paris ECJ 28-Apr-1977
Europa Freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the treaty. In so far as community law makes no special provision, these . .
Cited – Kraus v Land Baden-Wurttemberg ECJ 31-Mar-1993
Diplomas acquired in one member state require may authorisation for use in another state. . .
Cited – Vlassopoulou v Ministerium fur Justiz, Bundes- u Europaangelegenheiten Baden-Wurttemberg ECJ 7-May-1991
The authorities of a Member State when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a . .

Cited by:

Cited – Regina on Application of Dinev and Others v Westminster City Council Admn 24-Oct-2000
Street artists had operated in Leicester Square for many years without either licenses or being prosecuted. The respondent introduced a scheme to regulate them, and the applicants sought to challenge it by way of judicial review, alleging a failure . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, European

Updated: 03 June 2022; Ref: scu.161295

Commission v Luxembourg C-313/93: ECJ 13 Apr 1994

(Judgment) Action against Member States for failure to fulfil obligations – Examination of grounds by the Court – Situation to be taken into consideration – Situation upon the expiry of the period prescribed by the reasoned opinion (EEC Treaty, Art. 1

Citations:

[1994] ECR I-1279, [1994] EUECJ C-313/93

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161150

Directeur general des douanes and droits indirects v Superior France and Danzas: ECJ 12 Apr 1994

(Judgment) Common Customs Tariff – Tariff headings – Travel goods in PVC internally reinforced with fabric – Classification within Chapter 42 of the Combined Nomenclature as articles with outer surface of plastic – Criteria
For the purposes of the application of the subheadings in Chapter 42 of the Combined Nomenclature, travel goods in cellular plastic (PVC), internally reinforced with fabric, are to be regarded as goods with outer surface of plastic and not of textile material, if the textile material merely acts as reinforcement. Textile products which are untreated, unbleached, bleached or uniformly dyed, where applied to one surface only of plates, sheets and strips of cellular plastic, merely act as reinforcement.

Citations:

[1994] ECR I-1161, [1994] EUECJ C-150/93

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161110

Donatab Srl and others v Commission of the European Communities (Rec 1993,p I-3955) (Order): ECJ 9 Jul 1993

ECJ Where the main action to which an application for interim measures attaches is dismissed as inadmissible, the latter application is itself inadmissible.

Citations:

C-64/93, [1993] EUECJ C-64/93

Links:

Bailii

European, Commercial, Litigation Practice

Updated: 03 June 2022; Ref: scu.161088

Maitland Toosey v Chief Adjudication Officer: ECJ 27 Jan 1994

ECJ 1. The factor which determines whether Article 71 of Regulation No 1408/71 applies at all is the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment. The first sentence of Article 71(1)(b)(ii) of Regulation No 1408/71 for that reason does not apply to a worker who moved with his family to a Member State where he resided and worked and where he suffered incapacity for work followed by invalidity, and who subsequently moved to another Member State without working there, before finally taking up residence in a third Member State, where, owing to his invalidity, he does not work or register for employment.
Such a worker is consequently not covered by Article 39(5) of that regulation and must come within the general rule under Article 39(1), which provides that, with regard to invalidity benefit, the competent Member State is the State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred, in this case the State of last employment.
2. It follows from Article 86 of Regulation No 1408/71 and from Article 35 of Regulation No 574/72 that when a claimant submits a claim for invalidity benefit to the institution of the State of residence, that institution is required to forward it to the institution of the competent Member State, that is to say, the State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred.
On the other hand, and in contrast to the system laid down with respect to other benefits, there is no provision in Regulation No 1408/71 which requires the institutions of the State of residence to pay invalidity benefit to a claimant, even if the competent State is required to make reimbursement, subject to the application of Article 114 of Regulation No 574/72 in the case of a dispute between the relevant institutions. Community law, however, does not in any way prohibit the institution of the State of residence from assisting a claimant in the submission of a claim to the institution of the competent State.

Citations:

C-287/92, [1994] EUECJ C-287/92

Links:

Bailii

Jurisdiction:

European

Benefits

Updated: 03 June 2022; Ref: scu.160953

Mulox IBC v Hendrick Geels: ECJ 13 Jul 1993

ECJ The terms used in the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted autonomously. Only such an interpretation is capable of ensuring uniform application of the Convention, the objectives of which include unification of the rules on jurisdiction of the Contracting States, so as to avoid as far as possible the multiplication of the bases of jurisdiction in relation to one and the same legal relationship and to reinforce the legal protection available to persons established in the Community by, at the same time, allowing the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued.
In view of the specific nature of contracts of employment, the place of performance of the obligation in question, for the purposes of applying Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, must, in the case of such contracts, be determined by reference not to the applicable national law in accordance with the conflict rules of the court seised but, rather, to uniform criteria laid down by the Court of Justice on the basis of the scheme and the objectives of the Convention. The place of performance is the place where the employee actually carries out the work covered by the contract with his employer.
Where the employee performs his work in more than one Contracting State, the place of performance of the contractual obligation, within the meaning of that provision, must be defined as the place where or from which the employee discharges principally his obligations towards his employer.

Citations:

C-125/92, [1993] EUECJ C-125/92, [1993] ECR 1-4075

Links:

Bailii

Cited by:

Cited – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.160918

Le Nan v Cooperative laitiere de Ploudaniel: ECJ 27 Jan 1994

ECJ (Judgment) 1. Under the additional milk levy scheme introduced by Article 5c of Regulation No 804/68, as amended by Regulation No 856/84, an owner who during the reference year acquired the whole or part of a holding by sale, lease or inheritance and who resumed milk production at the time when that scheme entered into force, may receive a reference quantity in respect of the quantity of milk produced by the previous farmer in the course of part of the reference year where the Member State concerned, in the exercise of the power conferred by Article 7(1) of Regulation No 857/84 adopting general rules for the application of the said levy, as amended by Regulation No 590/85 and subparagraph 3 of Article 5 of Regulation No 1371/84 laying down detailed rules for the application of the levy, has decided to allocate a reference quantity to producers who find themselves in such circumstances.
2. Articles 3, 3a, 4 and 4a of Regulation No 857/84, as amended, and Article 3 of Regulation No 1371/84 contain an exhaustive list of the special situations in which reference quantities or individual quantities may be allocated and set out precise rules concerning the determination of those quantities. Since no provision of the regulations makes it possible for an owner and new producer who commenced his milk deliveries on the date of entry into force of the additional levy scheme, and whose reference quantity is calculated on the basis of the deliveries made by the previous farmer in the course of only part of the reference year before he ceased his activities, to have account taken, as a result of that fact, of a reference year different from that chosen by the Member State concerned, such taking into account is excluded, even where the deliveries during the reference year are not representative of the production capacity of the holding during that year.

Citations:

C-189/92, [1994] EUECJ C-189/92

Links:

Bailii

European, Agriculture

Updated: 03 June 2022; Ref: scu.160933

Adrianus Thijssen v Controledienst voor de verzekeringen (Rec 1993,p I-4047) (Judgment): ECJ 13 Jul 1993

ECJ Reference for a preliminary ruling: Raad van State – Belgium. Freedom of establishment – Exercise of official authority. Case C-42/92. Freedom of movement for persons – Freedom of establishment – Derogations – Activities connected with the exercise of public authority – Approved commissioners of insurance undertakings pursuing their activities in Belgium – Not included (EEC Treaty, Art. 55, first paragraph)
The derogation from the freedom of establishment provided for in the first paragraph of Article 55 of the Treaty, which excludes from the application of the provisions on freedom of establishment activities which in a Member State are connected, even occasionally, with the exercise of official authority, must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority. That is not the case for the activities of approved commissioners with insurance undertakings and private provident associations when they are exercised in a context such as that which operates in Belgium, where vis-a-vis the Insurance Inspectorate, which is a public body participating in the exercise of official authority and endowed with powers of regulation, supervision and direction, the approved commissioner, who is freely appointed by the insurance undertaking and is remunerated by it, has merely an auxiliary and preparatory role to play, notwithstanding the fact that his activities are subject to the supervision of the Insurance Inspectorate, that he must swear an oath and that he may impose a veto with suspensory effect on the implementation of decisions adopted by the undertaking.

Citations:

C-42/92, [1993] EUECJ C-42/92

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160873

Criminal proceedings against Vanacker and Lesage: ECJ 12 Oct 1993

(Judgment) 1. Under the system of judicial cooperation established by Article 177 of the Treaty, the interpretation of national rules is a matter for the national courts and not for the Court of Justice, even though it has been consistently held that where national rules have been adopted in order to implement a Community directive, those courts are required to interpret their national law in the light of the wording and the purpose of the directive.
2. Directive 75/439 on the disposal of waste oils precludes national legislation establishing a system of collection and disposal of waste oils for the benefit of undertakings to which the administrative authorities grant approval for exclusive zones, and which in fact allows such approval to be granted only to national undertakings.

Citations:

1993] ECR I-4947, C-37/92, [1993] EUECJ C-37/92

Links:

Bailii

Jurisdiction:

European

Constitutional, European

Updated: 01 June 2022; Ref: scu.160868

Textilveredlungsunion v Hauptzollamt Nurnberg-Furth: ECJ 11 Feb 1993

ECJ (Judgment) Article 3(2) of Regulation No 1999/85 on inward processing relief arrangements, read in conjunction with Article 3(7) of the implementing regulation, Regulation No 3677/86, must be interpreted as meaning that where, in the context of a job processing contract between a principal and an operator, both of whom are established within the Community, for the processing of non-Community goods, the operator submits the application for authorization to the competent customs authorities, that application must be submitted on behalf of the principal. The competent customs authority must be able to seek from the principal evidence that the economic conditions to which the issue of authorization is subject have been fulfilled and every guarantee which it considers necessary to that end.

Citations:

C-291/91, [1993] EUECJ C-291/91

Links:

Bailii

Statutes:

Regulation No 1999/85 3(2)

European

Updated: 01 June 2022; Ref: scu.160815

Emsland-Starke v Oberfinanzdirektion Munchen: ECJ 1 Apr 1993

ECJ Common Customs Tariff – Tariff headings – Amylaceous product made up of native potato starch and neutralized potato starch ester – Classification under subheading No 1108 13 00 of the Combined Nomenclature

Citations:

[1993] ECR I-1857, C-256/91, [1993] EUECJ C-256/91

Links:

Bailii

European, Customs and Excise

Updated: 01 June 2022; Ref: scu.160790

Commission of the European Communities v Hellenic Republic v Greece: ECJ 16 Dec 1992

ECJ 1. An application brought under Article 169 of the Treaty can be based only on the arguments and pleas in law already set out in the reasoned opinion. 2. In the absence of harmonization of Community legislation in the field of offences committed in the context of the Community temporary importation arrangements for travellers’ personal effects, the Member States are competent to adopt such penalties as appear to them to be appropriate. When making use of that competence they are, however, required to comply with Community law and its general principles, and consequently, the principle of proportionality. In that respect, the administrative measures or penalties must not go beyond what is strictly necessary for the objectives pursued and the control procedures must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the Treaty. 3. Where, in proceedings based on Article 169 of the Treaty, the Commission requests the Court to declare that a Member State has failed to fulfil its obligations under the Treaty, it is for the Commission itself to adduce evidence of the alleged infringement.

Citations:

C-210/91, [1992] EUECJ C-210/91

Links:

Bailii

European, Commercial

Updated: 01 June 2022; Ref: scu.160761

Commission v Belgium C-211/91: ECJ 16 Dec 1992

ECJ (Judgment) 1. By prohibiting cable television companies from broadcasting on their networks programmes from radio or television broadcasting stations in other Member States, where the programmes are not transmitted in the language or one of the languages of the Member State in which the station is established, a Member State is in breach of its obligations under Article 59 of the Treaty.
Such a restriction, which is discriminatory in that it is not applicable to services without distinction as regards their origin, cannot be brought within any of the grounds for exemption from the freedom to provide services permitted by Community law, that is to say those laid down in Article 56 of the Treaty.
2. While it is true that a Member State cannot be denied the right to take measures to prevent a provider of services whose activity is entirely or principally directed towards its territory from exercising the freedom guaranteed by Article 59 of the Treaty for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that State, it does not follow that it is permissible for a Member State to prohibit altogether the provision of certain services by operators established in other Member States.

Citations:

[1992] ECR I-6757, [1992] EUECJ C-211/91

Links:

Bailii

European, Media

Updated: 01 June 2022; Ref: scu.160762

Koua Poirrez v Caisse d’allocations familiales de la Seine-Saint-Denis: ECJ 16 Dec 1992

ECJ (Judgment) Articles 7 and 48(2) of the Treaty and the regulations adopted to implement those provisions are applicable only in situations which come within a field to which Community law applies, in this case that of freedom of movement for workers, and therefore cannot be applied to situations all the elements of which are purely internal to a single Member State. For that reason a member of the family of a worker who is a national of a Member State cannot rely on Community law in order to claim one of the social security advantages granted to migrant workers and members of their families, when the worker of whose family he is a member has never exercised the right to freedom of movement within the Community.

Citations:

[1992] ECR I-6685, [1992] EUECJ C-206/91

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160757

Beaulande v Directeur des services fiscaux de Nantes: ECJ 16 Dec 1992

ECJ Judgment – Although Article 33 of the Sixth Directive prohibits the maintenance or introduction of taxes which have the essential characteristics of VAT, with a view to preventing the introduction of taxes, duties and charges which, through being levied on the movement of goods and services in a way comparable to VAT, would jeopardize the functioning of the common system of VAT, it does not preclude the maintenance or introduction of other kinds of taxes, duties or charges, and in particular stamp duties, which do not have those characteristics.
It follows that the aforesaid provision must be interpreted as meaning that it does not preclude the introduction or maintenance of a national tax such as French stamp duty charged on the acquisition of building land in the event of a breach of the undertaking to build within the time-limit set by the relevant legislation. That duty is not a general tax; it is not applied at the different stages of a production and distribution process since it is charged only when the real estate passes into the ownership of the final consumer; it is not deductible from duty of the same kind paid on subsequent conveyances and the levying of the duty does not take account of the added value but is based on the full value of the property.

Citations:

C-208/91, [1992] EUECJ C-208/91

Links:

Bailii

European, VAT

Updated: 01 June 2022; Ref: scu.160759

Krohn v Hauptzollamt Hamburg-Jonas: ECJ 16 Dec 1992

ECJ The last sentence of Article 1 of Regulation No 482/74 on the classification of goods under subheading No 23.04 B of the Common Customs Tariff must be interpreted as meaning that the products resulting from the extraction of maize oil fall under that subheading even when they contain, in addition to the residues resulting from the extraction of oil from the actual maize germs, other substances deriving in particular from the whole of the maize plant, other cereals or soya, in so far as those substances extraneous to maize grain are present in very small quantities and it is established that it is technically impossible to avoid their presence under normal conditions of production, processing, transport, transshipment and storage, save by incurring cost disproportionate to the commercial value of the derived products in question. Since the Community legislature has not set a maximum permitted level for matter extraneous to maize grains, it is for the national court, in resolving the case before it, to fix the permissible level of such matter.

Citations:

[1992] ECR I-6661, [1992] EUECJ C-194/91

Links:

Bailii

European, Customs and Excise

Updated: 01 June 2022; Ref: scu.160750

Forafrique Burkinabe v Commission: ECJ 29 Apr 1993

1. Privileges and immunities of the European Communities – Attachment order issued against an institution – Need for lifting of immunity by the Court or waiver by the institution concerned
(Protocol on the Privileges and Immunities of the European Communities, Art. 1)
2. Non-contractual liability – Conditions – Non-compliance with an attachment order under national law – Immunity not lifted by the Court or waived – Excluded
(EEC Treaty, Art. 215, second para.; Protocol on the Privileges and Immunities of the European Communities, Art. 1)
3. International agreements – First ACP-EEC Lome Convention – Provisions relating to financial and technical cooperation – Procedure for awarding public contracts for works and supplies – Respective roles of the ACP State and the Commission – Competence of the ACP State to conclude contracts – Liability of the Community by reason of payment of funds, under the conditions prescribed, to the ACP State concerned – Excluded
(EEC Treaty, Art. 215, second para.; First ACP-EEC Lome Convention of 28 February 1975)

Citations:

[1993] ECR I-2161, [1993] EUECJ C-182/91

Links:

Bailii

Jurisdiction:

European

European

Updated: 01 June 2022; Ref: scu.160739

Cebag v Commission: ECJ 11 Feb 1993

ECJ (Judgment) 1. Pursuant to Regulation No 3972/86 on food-aid policy and food-aid management, such aid is supplied on the basis of contractual undertakings between the Commission and the successful tenderers. The relationship between successful tenderers and the Commission cannot be held to be governed entirely by regulatory provisions, particularly in view of the fact that the price of the supplies is a function of the tenderer’ s bid and its acceptance by the Commission. Since the regulations forming the basis for a tendering procedure provide for supplies to be effected pursuant to Regulation No 2200/87 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid, a clause referred to in Article 23 of that regulation, whereby the Court is competent to judge any dispute resulting from the carrying out, or the failure to carry out, or from the interpretation of provisions concerning supply operations pursuant to the said regulation, forms an integral part of supply contracts and must therefore be regarded as an arbitration clause within the meaning of Article 181 of the Treaty.
2. Regulation No 2200/87 laying down general rules on the mobilization in the Community of products to be supplied as Community food aid does not allow the Commission to make deductions for late delivery from payment for the supply of food aid. The fact that, prior to the Court declaring such practice illegal, a tenderer did not object to the deductions made by the Commission may not serve as justification, in the absence of waiver or time-limitation, for a refusal to refund the deductions and pay interest as provided for in the said regulation.

Citations:

C-142/91, [1993] EUECJ C-142/91

Links:

Bailii

Statutes:

Regulation No 3972/86

European

Updated: 01 June 2022; Ref: scu.160713

Katsikas and others v Konstantinidis and others: ECJ 16 Dec 1992

ECJ Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings is to be interpreted as not precluding an employee of the transferor on the date of the transfer of the undertaking, within the meaning of Article 1(1) of the directive, from objecting to the transfer of his contract of employment or employment relationship to the transferee. The directive does not, however, require Member States to provide that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, the contract or relationship should be maintained with the transferor. Neither does the directive preclude this. In such a case, it is for the Member States to determine what the fate of the contract of employment or employment relationship with the transferor should be.
The expression ‘laws, regulations or administrative provisions’ within the meaning of Article 7 of Council Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings must be understood as meaning the laws, regulations or administrative provisions of a Member State as they are interpreted by the courts of that State.
The claimant employees objected to becoming employees of the transferee, an attitude which the transferor (who then dismissed them) argued was not open to them in the light of the Directive.
Held: The Directive did not have the purpose or effect of compulsorily transferring an employee’s employment contract or relationship against his or her will, but that, in such a case, it was for the law of the relevant Member State to determine whether the contract or relationship was to be regarded as terminated by the transferor or transferee or to be maintained with the transferor.

Citations:

C-132/91, [1992] EUECJ C-132/91, [1992] ECR I – 6577, [1993] IRLR 179, C-138/91, C-139/91

Links:

Bailii

Cited by:

Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Cited – Senior Heat Treatment Ltd v Bell and others EAT 20-Jun-1997
The employer appealed a finding as to the period of continuous employment of the claimants. Before a transfer of the undertaking to the employer, the former emloyer had paid redundancy payments to several employees, some whom in practice left to . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 01 June 2022; Ref: scu.160708

Criminal proceedings against Claeys: ECJ 16 Dec 1992

ECJ (Judgment) 1. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Article 12 of the Treaty. If those advantages only partly offset the burden borne by domestic products, such a charge constitutes discriminatory taxation within the meaning of Article 95 of the Treaty, the collection of which is prohibited as regards the proportion used to offset the burden borne by domestic products. 2. Articles 12, 13 and 95 of the Treaty have direct effect and create rights for individuals which the national courts must protect. 3. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, that being a matter for the Commission to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty. In that respect, regard must be had to the jurisdiction of the national courts where, in introducing that charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty has found the levying of the charge as a method of financing State aid to be incompatible with the common market.

Citations:

[1992] ECR I-6559, C-114/91, [1992] EUECJ C-114/91

Links:

Bailii

European, Commercial

Updated: 01 June 2022; Ref: scu.160694

Herbrink v Minister van Landbouw, Natuurbeheer en Visserij: ECJ 27 Jan 1994

ECJ 1. In construing a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaty and the general principles of Community law.
2. Under Article 3a(1) of Regulation No 1546/88, as inserted by Regulation No 1033/89, the grant pursuant to Article 3a(1) of Regulation No 857/84, as amended by Regulation No 764/89, of a special reference quantity to a producer bound, during the reference year, by a non-marketing undertaking given pursuant to Regulation No 1078/77 presupposes that he is able to prove that he is still operating, in whole or in part, the same holding as that which he operated at the time of the grant to him of the premium to which he was entitled by reason of the aforementioned undertaking. The intention underlying the imposition of that condition by Article 3a(1) of Regulation No 1546/88 was to enshrine, with regard to the allocation of special reference quantities, the general principle that every reference quantity is to remain attached to the land in respect of which it is allocated; that principle is also put into effect by Article 3a(1)(a) of Regulation No 857/84.
However, its application does not exclude that of Article 7(4) of Regulation No 857/84, nor that of subparagraph (4) of the first paragraph of Article 7 of Regulation No 1546/88, by virtue of which Member States are authorized, by way of exception to the general principle set out above, to put a reference quantity at the disposal of a lessee who intends to continue milk production following the expiry of a non-renewable lease, so that the legitimate expectations of producers having the status of lessees who have entered into a non-marketing undertaking cannot be said to be prejudiced.
3. Article 3a of Regulation No 857/84, relating to the grant of special reference quantities to producers bound, during the reference year, by a non-marketing undertaking given pursuant to Regulation No 1078/77, is to be interpreted as meaning that it does not preclude the allocation of a special reference quantity following the reletting of a holding to the former producer, who was the initial lessee, in collaboration with other persons, and that that association or group of persons is to be regarded as a producer within the meaning of Articles 3a and 12(c) of Regulation No 857/84 and thus as the person entitled to the special reference quantity.
4. Notwithstanding that Regulation No 857/84, in the version resulting from Regulation No 764/89, does not provide for the retroactive remission of the additional levy on milk in favour of producers who are bound, during the reference year, by a non-marketing undertaking given pursuant to Regulation No 1078/77 and who no longer fulfil the conditions for the grant of a special reference quantity at the time of lodging their request, that regulation does not constitute a breach of the principle of the protection of legitimate expectations, nor of the prohibition against discrimination laid down by Article 40(3) of the Treaty.
First, the principle of the protection of legitimate expectations does not preclude the Community rules from imposing conditions which are inherent in any scheme which seeks to limit agricultural production by establishing a system of quotas, in so far as that scheme does not specifically affect a class of producers by reason of the non-marketing undertakings given by them. A producer could not legitimately expect to resume production on the expiry of the non-marketing period without being liable to a levy under the scheme previously introduced by Regulation No 856/84, as long as he had not obtained a reference quantity exempt from that levy. Consequently, a producer who did not ultimately fulfil the conditions for the allocation of a reference quantity at the time when he resumed production could not expect to be exempted retroactively from the additional levy.
Secondly, the difference in the treatment of the producers concerned, who are unable to benefit from a retroactive remission of the additional levy, is justified, because Regulation No 764/89 seeks, by removing the burden of the past constituted by levies due or already paid, to facilitate the resumption of production by producers who are effectively entitled to claim the grant of a special reference quantity. That objective has no relevance in the case of producers excluded from the allocation of a special quantity.

Citations:

[1994] ECR I-223, [1994] EUECJ C-98/91

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160683

ENU v Commission: ECJ 16 Feb 1993

ECJ 1. Under the second paragraph of Article 53 of the EAEC Treaty, any implied or express act adopted by the Supply Agency established by that Treaty, in the exercise of its right of option or its exclusive right to conclude contracts for the supply of ores and nuclear fuels, may be referred by any concerned party to the Commission, which must take a decision within a period of one month.
Even though addressed to the Agency, such a decision is of direct and individual concern, within the meaning of the second paragraph of Article 146 of the Treaty, to the person who has referred it to the Commission, with the result that if the Commission fails to take a decision, the person concerned must be given judicial protection for the right he has, under the second paragraph of Article 53, to bring the matter before the Court by way of an action under Article 148 of the Treaty for failure to act.
The request for action which that provision requires may be addressed to the Commission at the same time as the decision of the Agency is referred to it under the second paragraph of Article 53.
2. Where a uranium-producing undertaking which has problems in disposing of its production has requested the Supply Agency established by the EAEC Treaty to exercise its right of option under Article 57 of the Treaty and has received no reply other than an assurance that efforts will be made to find a solution to its problem, this must be treated as an implied refusal on the part of the Agency. Once that refusal had been referred to it under the second paragraph of Article 53 of the Treaty, the Commission was under an obligation to take a decision within a period of one month. Having failed to do so, it was in breach of that provision.

Citations:

C-107/91, [1993] EUECJ C-107/91

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160689

Knufer and Direktor der Landwirtschaftskammer Rheinland v Buchmann: ECJ 17 Dec 1992

ECJ (Judgment) The expression ‘areas used for milk production’ in Article 5(2) of Regulation No 1371/84 and in Article 7(2) of Regulation No 1546/88, which in the context of the scheme imposing a levy on milk relate to the transfer of reference quantities exempt from the levy when one or more parts of a holding are transferred, must be interpreted as also comprising the yard, buildings and road areas of the holding, provided that they contribute directly or indirectly to the milk production of the holding.

Citations:

[1992] ECR I-6895, [1992] EUECJ C-79/91

Links:

Bailii

Jurisdiction:

European

Agriculture

Updated: 01 June 2022; Ref: scu.160673

Heinz-Jorg Moritz v Commission of the European Communities: ECJ 17 Dec 1992

ECJ (Judgment) 1. The periodic report constitutes an indispensable criterion of assessment each time the official’ s career is taken into consideration by the administration and a promotion procedure is tainted with irregularity in so far as the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay on the part of the administration in drawing up the periodic reports of one or more of them. It does not follow that all the candidates must be at exactly the same stage regarding the state of their periodic reports when the appointment decision is taken or that the appointing authority must postpone its decision if the most recent report on one or other of the candidates is not yet final because it has been referred to the appeal assessor or to the Joint Committee. In exceptional circumstances the absence of a periodic report may be compensated for by the existence of other information on an official’ s merits. 2. If, in dismissing a plea by an official contesting the legality of a promotion procedure on the ground that the appointing authority assessed his merits in the absence of his periodic report and on the basis of a hearing of his Director-General at which he was not heard, the Court of First Instance merely holds that that hearing did not make that procedure unlawful but does not mention the reasons justifying recourse to information other than the periodic report or the reasons why hearing the Director-General was sufficient to compensate for the absence of that periodic report, it has failed to state sufficient reasons for its judgment. 3. It is for the Court of First Instance to respond to the pleas and claims as they were raised before it by the parties. It does not fulfil that obligation where it rejects a claim for compensation on the ground that a claim based on the same allegedly wrongful conduct of the administration was dismissed by a judgment given in another case between the same parties when the two claims are not identical, in so far as they are based on separate causes of damage, namely the fault consisting in the appointment of a candidate following an irregular promotion procedure, on the ground that the appointing authority assessed the respective merits of the candidates in the absence of the appellant’ s periodic report, and the fault consisting in the fact that the periodic report in question was drawn up late by the appointing authority.

Citations:

C-68/91, [1992] EUECJ C-68/91P

Links:

Bailii

Jurisdiction:

European

European, Administrative

Updated: 01 June 2022; Ref: scu.160663

Reading Borough Council v Payless DIY Ltd, Wickes Building Supplies Ltd, Great Mills (South) Ltd, Homebase Ltd, B and Q plc: ECJ 16 Dec 1992

ECJ Article 30 of the Treaty is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays. Any measure which is capable of directly or indirectly, actually or potentially, hindering intra-Community trade constitutes a measure having equivalent effect to a quantitative restriction, prohibited between Member States by Article 30 of the Treaty. That definition covers obstacles to the free movement of goods which, in the absence of harmonization of legislation, are the consequence of applying to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging). This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder trade between Member States, within the meaning of that definition, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside of Article 30 of the Treaty. It follows that Article 30 of the Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss.

Citations:

[1992] ECR I-6493, [1992] EUECJ C-304/90

Links:

Bailii

Statutes:

EEC Treaty Art 30

Jurisdiction:

European

European, Commercial

Updated: 01 June 2022; Ref: scu.160571

Commission v United Kingdom (Judgment): ECJ 14 Jul 1993

ECJ 1. A Member State which is bound to implement a directive is not entitled to draw the inference from the Commission’ s initial failure to react to a communication addressed to it regarding the manner in which the Member State intended to implement the directive that the Commission, which was obliged by neither Article 5 of the Treaty nor the provisions of the directive to express a view within a given period, had approved the criteria notified. It is for the Commission to decide when it intends to formulate objections and there is nothing to prevent it subsequently bringing proceedings against the Member State for failure to fulfil obligations.
2. The definition of ‘bathing water’ within the meaning of the second indent of Article 1(2)(a) of Directive 76/160 concerning the quality of bathing water must, in the light of the directive’ s underlying purpose as expressed in the recitals in the preamble thereto, be understood as encompassing at all events the waters of bathing resorts equipped with certain facilities, such as changing huts, toilets and markers indicating bathing areas, and supervised by lifeguards.
3. Directive 76/160 concerning the quality of bathing water, Article 4(1) of which imposes an obligation on Member States to take all the measures necessary to ensure that their bathing waters conform to the physical, chemical and microbiological values laid down by the directive within a period of ten years from its notification, requires Member States to take steps to ensure that the prescribed results are attained within the period laid down; apart from the derogations expressly provided for by the directive they may not rely on particular circumstances to justify a failure to fulfil that obligation.

Citations:

C-56/90, [1993] EUECJ C-56/90, [1993] ECR I-4109

Links:

Bailii

Cited by:

Cited – Clientearth, Regina (on The Application of) v Secretary of State for The Environment, Food and Rural Affairs SC 29-Apr-2015
The applicant had challenged the failure by the governement to secure appropriate air quality standards. The question had earlier been referred to the ECJ, and the Court now considered the appropriate orders following the ECJ judgment.
Held: . .
Lists of cited by and citing cases may be incomplete.

European, Environment

Updated: 01 June 2022; Ref: scu.160449

Regina v Secretary of State Environment, ex parte Friends of the Earth Ltd and Another: QBD 4 Apr 1994

The Secretary of State may accept undertakings from water companies to provide a wholesome water supply, rather than requiring a court to order them to achieve the same thing.

Citations:

Times 04-Apr-1994, Independent 12-Apr-1994

Statutes:

Water Industry Act 1991 68(1)(a)

Jurisdiction:

England and Wales

Environment, European, Utilities

Updated: 31 May 2022; Ref: scu.87695

XH and AIT, Regina (on The Application of) v Secretary of State for The Home Department: Admn 28 Jul 2016

The claimants challenged the right of the respondent, purporting to us the royal prerogative, to withdraw their passports on being suspect of terrorist links.
Held: The claims were dismissed. The use of the Royal Preogative was long established, and ‘we are in no doubt that it is not to be implied that Parliament intended to abrogate the Royal Prerogative power in relation to terrorism related activities when it enacted the TPIM Act.’

Judges:

Hamblen LJ, Cranston J

Citations:

[2016] EWHC 1898 (Admin), [2016] WLR(D) 437

Links:

Bailii, WLRD

Statutes:

Terrorism Prevention and Investigation Measures Act 2011, Charter of Fundamental Rights of the European Union 41, Parliament and Council Directive EC/2004/38 27

Jurisdiction:

England and Wales

European, Human Rights, Constitutional

Updated: 30 May 2022; Ref: scu.567875

Fens spol. sro v Slovenska republika: ECJ 5 Jul 2018

Customs Duties On Exports – Energy – Opinion – Free movement of goods – Customs duties on exports – Charges having equivalent effect to customs duties – Internal taxation – Charge for network services for the transmission of electricity

Citations:

C-305/17, [2018] EUECJ C-305/17 – O, ECLI:EU:C:2018:536

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 29 May 2022; Ref: scu.620019

Aristides Vlachos v Court Of Justice Of The European Communities.: ECJ 13 Dec 1984

ECJ 1. While recruitment marks entry into a category or a service of the community institutions, promotion governs the advancement of the career thus begun within the category or service which the candidate has entered. The community institutions are therefore right to treat an official’s appointment to a higher career bracket following an internal competition as promotion and in that regard to apply the rules of the staff regulations on promotion properly so called. The official ‘promoted’ through that procedure may not be treated more favourably under the staff regulations than an official who has completed the required minimum period of service.
2. An official eligible for promotion who had to complete a probationary period before being established must, even after completion of the probationary period, complete the minimum period of service required by the staff regulations.

Citations:

C-21/83, [1984] EUECJ C-21/83

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 May 2022; Ref: scu.215275

Konkurrensverket v SJ: ECJ 19 Sep 2018

(Opinion) Reference for a preliminary ruling – Public contracts in the rail transport sector – Network provision or operation activities – Concept of network – Award of a contract for the cleaning of trains by a wholly owned State railway undertaking – No prior call for competition

Citations:

C-388/17, [2018] EUECJ C-388/17 – O, [2019] EUECJ C-388/17

Links:

Bailii, Bailii

Jurisdiction:

European

Transport

Updated: 26 May 2022; Ref: scu.622618

Regina v Environment Agency ex parte Dockgrange Limited and Mayer Parry Limited: Admn 22 May 1997

The verb ‘discard’ in the Waste Framework Directive has a special and limited meaning which requires the materials to be subjected to a disposal or recovery operation.
Carnwath J said: ‘The general concept is now reasonably clear. The term discard is used in a broad sense equivalent to ‘get rid of’. The phrase get rid of’ is concerned with materials which have ceased to be required for their original purpose, normally because they are unsuitable, unwanted or surplus to requirements. That broad category is however limited by the context, which shows that the purpose is to control disposal and recovery of such material. Accordingly, materials which are to be reused (rather than finally disposed of) but which do not require any recovery operation before being put to their new use, are not treated as waste.’ and ‘Insofar as the discarded materials do not require any recovery operation, they are not treated as waste at all. Insofar as they do require recovery operations, they remain waste until those recovery operations are complete.’

Judges:

Carnwath J

Citations:

[1997] EWHC Admin 495, [1999] ENVLR 489

Links:

Bailii

Statutes:

Council Directive 75/442/EEC, Trans-frontier Shipment of Waste Regulations 1994

Jurisdiction:

England and Wales

Cited by:

Per incuriam – Attorney-General’s Reference (No 5 of 2000) CACD 6-Jun-2001
Waste products could become ‘controlled waste’ and subject to licensing procedures without there being a recovery or disposal operation being involved. A rendering process produced a condensate which the company wished to spread on farm land without . .
Limited – Castle Cement v Environment Agency Admn 22-Mar-2001
The court was asked ‘whether the burning of Cemfuel, as a fuel in the Ribblesdale and Ketton Cement Works operated by the Applicant (Castle), amounts to the burning of ‘hazardous waste’, as the Environment Agency has concluded, or to the burning of . .
Lists of cited by and citing cases may be incomplete.

Environment, Licensing, European

Updated: 26 May 2022; Ref: scu.137440

Freixenet v OHMI (Forme D’Une Bouteille Emerisee Noire Mate): ECFI 4 Oct 2006

ECJ Community trade mark – Shape of a frosted matt black bottle – Absolute grounds for refusal – Article 7, paragraph 1 b) of Regulation (EC) No 40/94 – Lack of distinctive character – Infringement of the rights of defense – Article 73 of Regulation No 40/94

Citations:

T-188/04, [2006] EUECJ T-188/04

Links:

Bailii

Statutes:

Regulation (EC) No 40/94 1(b)

Jurisdiction:

European

Intellectual Property

Updated: 26 May 2022; Ref: scu.245183

Monte Di Massima v OHMI -Hoefferle Internationale (Valle Della Luna): ECFI 4 Oct 2006

ECJ Community trade mark – Opposition proceedings – Application for figurative Community trade mark Valle della Luna – Earlier national figurative mark VALLE DE LA LUNA – Proof of use of the earlier mark – Article 15, paragraph 2 a) and Article 43 , paragraphs 2 and 3 of Regulation (EC) No 40/94

Citations:

T-96/05, [2006] EUECJ T-96/05

Links:

Bailii

Jurisdiction:

European

Intellectual Property

Updated: 26 May 2022; Ref: scu.245185

Freixenet v OHMI (Forme D’Une Bouteille Emerisee Blanche): ECFI 4 Oct 2006

ECJ Community trade mark – Shape of a frosted white bottle – Absolute ground for refusal – Article 7, paragraph 1 b) of Regulation (EC) No 40/94 – Lack of distinctive character – Infringement of the rights of defense – Article 73 of Regulation No 40/94

Citations:

T-190/04, [2006] EUECJ T-190/04

Links:

Bailii

Jurisdiction:

European

Intellectual Property

Updated: 26 May 2022; Ref: scu.245182

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:

Cited – Commission 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 . .
Cited – Barron 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:

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

European

Updated: 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:

Cited – Attheraces 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 . .
Cited – Chester 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