ddrg/super_eurlex huggingface dataset:
Case C-265/02





Frahuil SA

v

Assitalia SpA





(Reference for a preliminary ruling from the Corte suprema di cassazione)

«(Brussels Convention – Special jurisdiction – Article 5(1) – Meaning of matters relating to a contract – Contract of guarantee entered into without the knowledge of the principal debtor – Subrogation of the guarantor to the rights of the creditor – Right of recourse of the guarantor against the principal debtor)»

Judgment of the Court (Fifth Chamber), 5 February 2004

Summary of the Judgment

1.. Convention on Jurisdiction and the Enforcement of Judgments – Scope – Civil and commercial matters – Meaning of civil and commercial matters – Action brought by a guarantor against the principal debtor by way of legal subrogation in the context of a contract of guarantee – Included

(Brussels Convention of 27 September 1968, Art. 1, first para.)

2.. Convention on Jurisdiction and the Enforcement of Judgments – Special jurisdiction – Jurisdiction in matters relating to a contract – Meaning – Action brought by a guarantor, by way of subrogation, against the principal debtor in the context of a contract of guarantee concluded with a third party – Excluded where the principal debtor has not authorised the conclusion of the contract

(Brussels Convention of 27 September 1968, Art. 5(1))

1.

2.
Case C-117/02

Commission of the European Communities

v

Portuguese Republic

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – Construction of holiday villages and hotel complexes – Failure to make a project to construct a hotel complex subject to such an assessment)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Pre-litigation procedure – Purpose

(Art. 226 EC)

2. Actions for failure to fulfil obligations – Proof of the failure – Burden of proof on the Commission – Presumptions – Not permissible

(Art. 226 EC; Council Directive 85/337, Arts 2(1) and 4(2))

1. In proceedings for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned the opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission.

(see para. 53)

2. In proceedings for failure to fulfil obligations brought under Article 226 EC, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to provide the Court with all the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption.

Thus, in the case of an infringement of Article 2(1) of Directive 85/337, on the assessment of the effects of certain public and private projects on the environment, the Commission cannot rely on the presumption that a project located in a national park is likely to have significant effects on the environment.

(see paras 80, 88)
Case C-1/02

Privat-Molkerei Borgmann GmbH & Co. KG

v

Hauptzollamt Dortmund

(Reference for a preliminary ruling from the Finanzgericht Düsseldorf)

(Agriculture – Additional levy on milk – Article 3(2) of Regulation (EEC) No 536/93 – Annual statement of quantities of milk delivered to the purchaser – Time-limit for notification – Nature of time-limit – Penalties)

Summary of the Judgment

1. Community law – Interpretation – Multilingual texts – Discrepancies between the different language versions

2. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk – Time-limit for the forwarding by the purchaser to the competent authority of a summary of the statements drawn up for each producer

(Commission Regulation No 536/93, Art. 3(2))

1. Where there is a divergence between the various language versions of a Community law text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part.

(see para. 25)

2. Since neither the general scheme nor the purpose of Regulation No 536/93, laying down detailed rules on the application of the additional levy on milk and milk products, precludes the deadline laid down in Article 3(2) of that regulation, as amended by Regulation No 1001/98, for the forwarding by the milk purchaser to the competent authority of a summary of the statements drawn up for each producer from being understood as a deadline for dispatch of the relevant information, that provision must be interpreted as meaning that milk purchasers comply with the time-limit laid down where they send the requisite information to the competent authority before 15 May of the relevant year.

(see paras 29, 34, operative part)
Case C-295/02

Gisela Gerken

v

Amt für Agrarstruktur Verden

(Reference for a preliminary ruling from the Niedersächsiches Oberverwaltungsgericht)

(Common agricultural policy – Integrated administration and control system for certain Community aid schemes – Regulations (EEC) No 3887/92 and (EC) No 2419/2001 – Applications for ‘livestock’ aid – Irregularities – Reduction in the amount of aid – Article 2(2) of Regulation (EC, Euratom) No 2988/95 – Retroactive application of a less stringent provision)

Summary of the Judgment

Agriculture – Common agricultural policy – Integrated administration and control system for certain aid schemes – ‘Livestock’ aid – Irregularity giving rise to a penalty under Regulation No 3887/92 – Regulation No 2419/2001 introducing less severe administrative penalties – Retroactive application required under Regulation No 2988/95

(Council Regulation No 2988/95, Art. 2(2); Commission Regulation No 3887/92, Art. 10(2)(a); Commission Regulation No 2419/2001, Art. 44(1))

Article 2(2) of Regulation No 2988/95 on the protection of the financial interests of the European Communities is to be interpreted as meaning that where, in an application for ‘livestock’ aid covered ratione temporis by Regulation No 3887/92 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes, there is an irregularity giving rise to a penalty under Article 10(2)(a) of that regulation, the competent authorities must apply retroactively the provisions of Article 44(1) of Regulation No 2419/2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation No 3508/92 on the ground that those provisions of Regulation No 2419/2001 are less severe as regards the conduct in question.

(see para. 61, operative part)
Case C-371/02

Björnekulla Fruktindustrier AB

v

Procordia Food AB

(Reference for a preliminary ruling from the Svea hovrätt (Sweden))

(Trade marks – Directive 89/104/EEC – Article 12(2)(a) – Revocation of rights conferred by the trade mark – Trade mark which has become the common name in the trade – Relevant circles for purposes of the assessment)

Summary of the Judgment

Approximation of laws – Trade marks – Directive 89/104 – Grounds for revocation of a trade mark – Trade mark which has become the common name in the trade – Scope of term ‘in the trade’ – Relevant circles

(Council Directive 89/104, Art. 12( 2)(a))

Article 12(2)(a) of the First Directive 89/104 relating to trade marks, which provides that the proprietor of a trade mark may have its rights revoked if the mark has become the common name in the trade for a product or service in respect of which it is registered, should be interpreted as meaning that, in cases where intermediaries participate in the distribution to the consumer or the end user of a product which is the subject of a registered trade mark, the relevant classes of persons whose views fall to be taken into account in determining whether that trade mark has become the common name in the trade for the product in question comprise all consumers and end users and, depending on the features of the market concerned, all those in the trade who deal with that product commercially.

(see para. 26, operative part)
Case C-347/02

Commission of the European Communities

v

French Republic

(Insurance – Third non-life insurance directive – Bonus-malus system)

Summary of the Judgment

Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct insurance other than life assurance – Directive 92/49 – Freedom to set rates – Bonus-malus system not resulting in the direct setting of premium rates by the State – Permissible

(Council Directive 92/49)

A bonus-malus system applicable to motor insurance contracts which, while having effects on changes in the amount of premiums, does not, however, result in the direct setting of premium rates by the State since insurance undertakings remain free to set the amount of the basic premium cannot be equated with a system of approving premium rates that is contrary to the principle of freedom to set rates laid down by Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357.

Full harmonisation in the field of non-life insurance rates precluding any national measure liable to have effects on rates cannot be presumed in the absence of a clearly expressed intention to this effect on the part of the Community legislature.

(see paras 24-25)
Case C-424/02

Commission of the European Communities

v

United Kingdom of Great Britain and Northern Ireland

(Failure of a Member State to fulfil obligations – Directive 75/439/EEC – Disposal of waste oils – Priority to be given to the processing of waste oils by regeneration)

Summary of the Judgment

Approximation of laws – Disposal of waste oils – Directive 75/439 – Member States obliged to give priority to the processing of waste oils by regeneration – Limits – Technical, economic or organisational constraints – Meaning

(Council Directive 75/439, Art. 3(1))

It is clear from Article 3(1) of Directive 75/439 on the disposal of waste oils, as amended by Directive 87/101, that the reference to ‘technical, economic and organisational constraints’ in that article forms part of a provision giving general expression to the obligation imposed on Member States and that the Community legislature did not intend thereby to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.

It follows that the definition of such constraints cannot be left to the exclusive discretion of the Member States. Apart from being contrary to the principle of the uniform interpretation and application of Community law, interpretation by the Member States alone would make the compatibility of processing by regeneration with technical, economic and organisational constraints a condition the fulfilment of which would depend entirely on a policy assessment on the part of the Member State concerned.

Article 3(1) of Directive 75/439, which relates to the ‘technical, economic and organisational constraints’ must be understood as an expression of the principle of proportionality; accordingly, Member States are under an obligation to take measures appropriate and proportionate to the objective of giving priority to the processing of waste oils by regeneration, which is to say that the limit to that positive obligation is the existence of those constraints. If the technical, economic and organisational circumstances obtaining in a Member State were considered automatically to constitute constraints making it impossible to adopt the measures provided for in that provision, it would be deprived of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary for the processing of waste oils by regeneration.

(see paras 20-23)
Case C-366/02

Gerd Gschoßmann

v

Amt für Landwirtschaft und Flurneuordnung Süd

(Reference for a preliminary ruling from the Verwaltungsgericht Halle)

(Common agricultural policy – Regulations (EEC) No 1765/92 and (EC) No 1251/1999 – Support system for producers of arable crops – Compensatory payments for areas down to arable crops and subject to set-aside – Exclusion for land under permanent crops – Definition)

Summary of the Judgment

1. Agriculture – Common agricultural policy – Support for producers of certain arable crops – Compensatory payments for areas down to arable crops or subject to set-aside – Exclusion for land under permanent crops – Definition – Uncultivated land – Included

(Council Regulations No 1765/92, Art. 9, and No 1251/1999, Art. 7)

2. Agriculture – Common agricultural policy – Support for producers of certain arable crops – Compensatory payments for areas down to arable crops or subject to set-aside – Exclusion for land under permanent crops – Event terminating use of the land for permanent crop of fruit trees

(Council Regulations No 1765/92, Art. 9, and No 1251/1999, Art. 7)

3. Agriculture – Common agricultural policy – Support for producers of certain arable crops – Compensatory payments for areas down to arable crops or subject to set-aside – Exclusion for land under permanent crops – Land no longer used for permanent crops – Use for non-agricultural purposes – Conditions

(Council Regulations No 1765/92, Art. 9, and No 1251/1999, Art. 7)

1. Articles 9 of Regulation No 1765/92 and Article 7 of Regulation No 1251/1999, both establishing a support system for producers of certain arable crops, must be interpreted as meaning that, for land under permanent crops to be excluded from compensatory payments, there is no requirement that the land has been cultivated, and in particular that insecticides have been used or crops harvested, since those provisions refer merely to the land use without requiring it actually to be cultivated.

(see paras 15, 19, operative part 1)

2. Article 9 of Regulation No 1765/92 and Article 7 of Regulation No 1251/1999, both establishing a support system for producers of certain arable crops, which exclude from compensatory payments land under permanent crops, must be interpreted as meaning that the land ceases to be under permanent crops, in the case of apple production, once the apple trees have been felled, even if they have not been removed. However, the mere decision to fell the trees, without that decision being put into practice, does not mean that the land ceases to be under permanent crops.

(see para. 23, operative part 2)

3. Article 9 of Regulation No 1765/92 and Article 7 of Regulation No 1251/1999, both establishing a support system for producers of certain arable crops, which exclude from compensatory payments land under permanent crops, must be interpreted as meaning that land which has ceased to be under permanent crops must be regarded as being used for non-agricultural purposes if is shown that it is not intended for the production of other plants or animals.

(see para. 27, operative part 3)
Case C-447/02 P

KWS Saat AG

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Appeal – Community trade mark – Regulation (EC) No 40/94 – Absolute ground for refusal – Distinctive character – Colour per se – Orange colour)

Summary of the Judgment

1. Community trade mark – Decisions of OHIM – Compliance with the principle of due process

(Council Regulation No 40/94, Art. 73)

2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade marks devoid of any distinctive character – Recognition of a colour per se as having distinctive character – Acquisition in consequence of use

(Council Regulation No 40/94, Art. 7(1)(b) and (3))

1. In accordance with the second sentence of Article 73 of Regulation No 40/94 on the Community trade mark, decisions of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) may be based only on matters of fact or of law on which the parties have been able to set out their views.

Consequently, in the case in which the Board of Appeal assembles of its own motion facts intended to serve as a basis for its decision, it is under an obligation to notify the parties of those facts in order that the parties may submit their views thereon.

(see paras 42-43)

2. While a colour per se may acquire, for the goods or services in respect of which registration of a Community trade mark is sought, a distinctive character in consequence of the use which has been made of it, by virtue of Article 7(3) of Regulation No 40/94, in the case of a colour per se, distinctiveness without any prior use, within the meaning of Article 7(1)(b) of that regulation, is inconceivable save in exceptional circumstances, in particular where the number of goods or services for which the mark is claimed is very restricted and the relevant market very specific.

(see para. 79)
Case C-460/02

Commission of the European Communities

v

Italian Republic

(Air transport – Groundhandling – Directive 96/67/EC)

Summary of the Judgment

1. Transport – Air transport – Access to the groundhandling market at Community airports – Power of the Member States to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services – Limits

(Council Directive 96/67)

2. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Transfer – Meaning – National provision guaranteeing that existing employment levels are to be maintained and that labour relations with staff under the previous management arrangements are to be continued where there is the transfer of an activity irrespective of the nature of the transaction concerned – Excluded

(Council Directive 2001/23)

1. The power to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services, which the Member States retain under Directive 96/67 on access to the groundhandling market at Community airports, does not confer an unlimited jurisdiction and must be exercised in a manner that does not prejudice the effectiveness of that directive and the objectives it pursues. The aim of the directive is to ensure the opening up of the groundhandling market which must help, in particular, to reduce the operating costs of airlines.

(see paras 31-32)

2. A national provision which guarantees that existing employment levels are to be maintained and that labour relations with staff under the previous management arrangements are to be continued which applies, irrespective of the nature of the transaction concerned, to any ‘transfer of activity’ in the sector in question plainly goes beyond the concept of transfer laid down by Directive 2001/23 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, as interpreted by the Court. It is only by having regard to the specific characteristics of each transfer of activity that it is possible to determine whether the transaction concerned constitutes a transfer for the purposes of the directive.

(see paras 41-42)
Case C-46/02

Fixtures Marketing Ltd

v

Oy Veikkaus Ab

(Reference for a preliminary ruling from the Vantaan käräjäoikeus)

(Directive 96/9/EC – Legal protection of databases – Sui generis right – Definition of investment in the obtaining, verification or presentation of the contents of a database – Football fixture lists – Betting)

Summary of the judgment

Approximation of laws – Legal protection of databases – Directive 96/9 – Definition of investment in the obtaining, verification or presentation of the contents of a database – Resources used to draw up a football fixtures list – Not included

(Directive of the European Parliament and of the Council 96/9, Art. 7(1))

The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9 on the legal protection of databases must be understood to refer to investment in the creation of that database. It thus refers to the resources used to seek out existing materials and collect them in the database but does not cover the resources used for the creation of materials which make up the contents of a database.

In the context of drawing up a fixture list for the purpose of organising football league fixtures, the resources used to establish the dates, times and the team pairings for the various matches in the league do not constitute such investment. Moreover, finding the data which make up such a list does not require any particular effort on the part of the professional leagues, which participate directly in the creation of those data. Nor should the resources used for the verification or presentation of the data making up the list be considered to represent substantial investment independent of the investment in the creation of those data.

(see paras 33-34, 41-42, 44-46, 49, operative part)
Case C-422/02 P

Europe Chemi-Con (Deutschland) GmbH

v

Council of the European Union

(Appeal – Anti-dumping measures – Regulation terminating anti-dumping proceedings – Retroactivity – Equal treatment – Non-discrimination – Imports of certain large aluminium electrolytic capacitors from Japan)

Opinion of Advocate General Jacobs delivered on 29 April 2004

Judgment of the Court (First Chamber), 27 January 2005

Summary of the Judgment

Common commercial policy – Protection against dumping – Principle of equal treatment of imports from different countries – Scope as regards products from different countries all subject to dumping but some subject to a procedure for review of a definitive duty and others to an initial investigation

(Council Regulation No 384/96, Arts 5, 9(5), and 11(2))

There is an objective difference between the initial investigation procedure intended to establish whether there is a practice of dumping and the procedure for review of an anti-dumping measure which is about to expire. Whereas imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would probably result in the continuation or recurrence of dumping and injury, where imports are subject to an initial investigation, the purpose of that investigation is precisely to determine the existence, the degree and the effect of any alleged dumping even if the initiation of such an investigation presupposes the existence of sufficient evidence to justify the initiation of that procedure.

It follows that the collection of anti-dumping duty until the conclusion of the review procedure to which it is subject, although no duty of that type is collected during the same period on comparable products originating in a country for which an initial investigation is conducted, does not constitute an infringement of the principle of equal treatment.

Moreover, the Council is not obliged to refrain from applying Article 11(2) of the basic anti-dumping regulation No 384/96, providing for the continued collection of anti-dumping duty pending the outcome of the review, under the principle of non-discrimination set out in Article 9(5) of that regulation. The principle laid down by that provision does not require the Council, where it decides to terminate a review proceeding on the ground that no definitive anti-dumping duty was imposed on imports in a comparable situation to those subject to review but coming from other sources and having been subject to an initial investigation, to restore absolute equality of treatment as regards the collection of import duty on imports in those different situations.

(see paras 50-52)
Keywords



Keywords

Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion

(Art. 226 EC)