ddrg/super_eurlex huggingface dataset:
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Transport - Road transport - Special regular services by coach and bus between Member States - Examination of applications to introduce a service - Factors to be taken into consideration - Commission' s power of appraisal - Judicial review

(Regulation No 517/72 of the Council, Arts 8 and 14)

Summary

The examination pursuant to Article 8 of Regulation No 517/72 of an application to introduce a special regular service by coach and bus between Member States involves the analysis of a complex economic situation. Account has therefore to be taken, both as to quality and as to quantity, of existing services, current and foreseeable transport needs and, in appropriate cases, the possibilities for undertakings already operating in the areas concerned to organize an equivalent service.

It follows that when the Commission has to adopt a decision under Article 14 of Regulation No 517/72 it enjoys a wide margin of appraisal in deciding whether conditions exist which justify the authorization granted to a Member State to allow the introduction of a special regular service. Given such a power of appraisal, the Court must restrict itself to examining whether its exercise was vitiated by a manifest error or a misuse of power or whether the Commission clearly exceeded the limits of that power.
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Approximation of laws - Procedures for the award of public works contracts - Directive 71/305 - Award of contracts - Abnormally low tenders - Automatic disqualification - Not permissible - Obligation to conduct an examination procedure - Tenders subject to examination

(Council Directive 71/305, Art. 29(5) )

Operative part

1. Article 29(5) of Council Directive 71/305 of 26 July 1971 concerning the coordination of procedures for the award of public works contracts prohibits Member States from introducing provisions which require the automatic disqualification from the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the directive, giving the tenderer an opportunity to furnish explanations;

2. When implementing Council Directive 71/305, Member States may not depart, to any material extent, from the provisions of Article 29(5) thereof;

3. Article 29(5) of Council Directive 71/305 allows Member States to require that tenders be examined when those tenders appear to be abnormally low, and not only when they are obviously abnormally low.
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Action for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation imposing anti-dumping duties - Importer-user of the product concerned

(EEC Treaty, Art. 173, second para.).

Summary

Although it is true that, in the light of the criteria set out in the second paragraph of Article 173 of the Treaty, regulations imposing anti-dumping duties are in fact, as regards their nature and their scope, of a legislative character inasmuch as they apply to all the traders concerned, taken as a whole, their provisions may none the less be of individual concern to certain traders.

It follows that measures imposing anti-dumping duties may, without losing their character as regulations, be of individual concern in certain circumstances to certain traders who therefore have standing to bring an action for their annulment.

That is the case, in general, with regard to producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary measures, and with regard to importers whose retail prices for the goods in question have been used as a basis for establishing the export price.

A trader who is both the largest importer and the end-user of the product forming the subject-matter of the anti-dumping measure and who demonstrates that his business activities depend to a very large extent on his imports and are seriously affected by the contested regulation in view of the limited number of manufacturers of the product concerned and of the difficulties which he encounters in obtaining supplies from the sole Community producer, his main competitor for the processed product, must also be deemed to be individually concerned.

That set of factors constitutes a situation peculiar to that trader and differentiates him, with regard to the measure in question, from all other traders.
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Convention on Jurisdiction and the Enforcement of Judgments - Lis alibi pendens - Proceedings brought before courts in different Contracting States - Domicile of the parties to the two proceedings - Lack of effect on the application of the rules of the Convention - Options available to the court second seised where the jurisdiction of the court first seised is contested - Jurisdiction to be declined or proceedings to be stayed - Examination of the jurisdiction of the court first seised - Precluded

(Convention of 27 September 1968, Art. 21)

Summary

Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the rules applicable to lis alibi pendens set out therein must be applied irrespective of the domicile of the parties to the two sets of proceedings.

Without prejudice to the case where the court second seised has exclusive jurisdiction under the Convention and in particular under Article 16 thereof, Article 21 of the Convention must be interpreted as meaning that, where the jurisdiction of the court first seised is contested, the court second seised may, if it does not decline jurisdiction, only stay the proceedings and may not itself examine the jurisdiction of the court first seised.
Judgment of the Court of 21 February 1990. - Commission of the European Communities v Kingdom of Belgium. - State aid - Recovery - Failure to implement. - Case C-74/89.



European Court reports 1990 Page I-00491

Pub.RJ Page Pub somm



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Member States - Obligations - Failure to fulfil obligations - Justification - Not permissible

( EEC Treaty, Art . 93(2 ), second subparagraph )

Summary

As the Court has consistently held, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with its obligations under Community law .

Parties

In Case C-74/89

Commission of the European Communities, represented by its Legal Advisers Antonino Abate and Thomas F . Cusack, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Belgium, represented by Robert Hoebaer, Director of Administration at the Ministry of Foreign Affairs, External Trade and Cooperation with Developing Countries, acting as Agent, with an address for service in Luxembourg at the Belgian Embassy, 4 rue des Girondins,

defendant,

APPLICATION for a declaration that by not complying with the Commission Decision of 30 November 1983 on aid granted by the Belgian Government to a synthetic fibre producer, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty,

THE COURT

composed of : O . Due, President, F . A . Schockweiler ( President of Chamber ), T . Koopmans, R . Joliet, T . F . O' Higgins, G . C . Rodríguez Iglesias and M . Diez de Velasco, Judges,

hereby :

Operative part

( 1)Declares that by not complying with Commission Decision 84/111/EEC of 30 November 1983 on the proposal of the Belgian Government to grant aid to a synthetic fibre producer, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty;

( 2)Orders the Kingdom of Belgium to pay the costs .
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Actions for damages ° Non-contractual liability ° Action brought against the European Investment Bank in connection with the award and performance of contracts in respect of the European Development Fund ° Jurisdiction of the Court

(EEC Treaty, Arts 178 and 215, second para.)

Summary

The European Investment Bank, established by the Treaty, constitutes a Community body intended to contribute towards the attainment of the Community' s objectives.

It follows that any acts and omissions for which the Bank may have been responsible in the implementation of a financing contract which, acting on behalf of the Community, it had concluded in connection with the financing of public works contracts from the resources of the European Development Fund, are attributable to the Community in accordance with the general principles referred to in the second paragraph of Article 215 of the Treaty.

It would be contrary to the intention of the authors of the Treaty if, when it acts through a Community body established by the Treaty and authorized to act in its name and on its behalf, the Community could escape the consequences of the provisions of Article 178 and the second paragraph of Article 215 of the Treaty, the intention of which is to reserve for the Court' s jurisdiction cases involving the non-contractual liability of the Community as a whole.

The Court therefore has jurisdiction under Article 178 of the Treaty to determine an action for damages brought against the European Investment Bank acting on behalf of the Community in connection with the conclusion and performance of contracts in respect of the European Development Fund.
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1. Freedom to provide services - Treaty provisions - Scope - Legislation governing the sale of goods belonging to a trader established in another Member State - Excluded - Covered by Treaty provisions on the free movement of goods

(EEC Treaty, Art. 59)

2. Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Sale by public auction of imported second-hand goods - Requirement of entry of the owner in the local trade register - Not permitted - Justification - Consumer protection - Grounds of public policy - None

(EEC Treaty, Arts 30 and 36)

Summary

1. Legislation of a Member State laying down the conditions governing the sale by a trader established in another Member State of goods belonging to him does not fall within the scope of Article 59 of the Treaty. Such legislation concerns the marketing of goods traded between Member States and is subject to the provisions of the Treaty concerning the free movement of goods.

2. National legislation which makes the sale by public auction of second-hand goods from another Member State conditional upon the prior entry of the undertaking which owns the goods offered for sale in the trade register at the place of the sale is incompatible with Articles 30 and 36 of the Treaty. Such a measure, which is capable of impeding the free movement of goods, cannot be justified either by mandatory requirements relating to the protection of consumers or by grounds of public policy under Article 36 since it is possible to impose conditions capable of protecting consumers which are less restrictive of the free movement of goods and the aim of preventing the sale of stolen goods can be attained by appropriate control measures.
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1. Measures adopted by the Community institutions - Directives - Implementation by the Member States - Transposition of a directive without legislative action - Conditions - Existence of a general legal context ensuring the full application of the directive - Inadequacy of a practice conforming to the requirements of the directive

(EEC Treaty, third para. of Art. 189)

2. Environment - Air pollution - Directive 85/203 - Fixing of a limit value applicable to the concentration of nitrogen dioxide - Adoption of a mandatory legal rule - Obligation of the Member States

(Council Directive 85/203, Art. 2)

Operative part

1. Declares that, by failing to adopt within the prescribed period all the provisions needed to comply with Council Directive 85/203/EEC of 7 March 1985 on air quality standards for nitrogen dioxide, the French Republic has failed to fulfil its obligations under the EEC Treaty;

2. Orders the French Republic to pay the costs.
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1. Measures adopted by the Community institutions - Directives - Direct effect - Consequences - Possibility of putting forward as against individuals national rules on time-limits for initiating proceedings before a directive has been properly transposed - Not permissible

(EEC Treaty, Art. 189, third paragraph)

2. Social policy - Equal treatment of men and women in matters of social security - Directive 79/7 - Application of national rules governing time-limits for initiating proceedings before a directive is properly transposed - Not permissible

(EEC Treaty, Art. 189; Council Directive 79/7)

Summary

1. So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the directive and even if the Court has held that a particular provision or provisions of the directive are sufficiently precise and unconditional to be relied upon before a national court.

Only the proper transposition of the directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created.

It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual' s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.

2. Community law precludes the competent authorities of a Member State from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, on national procedural rules relating to time-limits for bringing proceedings so long as that Member State has not properly transposed that directive into its domestic legal system.
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Agriculture - Common organization of the markets - Milk and milk products - Additional levy on milk - Producers with two reference quantities, for direct sales and deliveries to dairies - Possibility of transferring reference quantities from one sector of activity to the other on the basis of marketing requirements - Persons entitled - Total suspension of one activity by producers during a marketing year - Inclusion

(Council Regulation No 857/84, Art. 6a)

Summary

The scope of Article 6a of Regulation No 857/84, which enables dairy producers who have two reference quantities, one for direct sales and the other for deliveries to dairies, to transfer them from one sector of activity to another within a twelve-month period, cannot be restricted to the situation where the producer in question in fact carries on both of those activities during the same twelve-month period. The purpose of that provision, which is to enable producers to adapt to changes in their marketing requirements which may have an effect over more than one marketing year, would not be fully achieved if, as a result of such a restriction, those who temporarily ceased their direct sales during a given marketing year owing to such changes could not benefit from it.
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1. Social security for migrant workers - Frontier worker - Concept within the meaning of Article 1(1)(c) of Regulation No 36/83 - Wholly unemployed frontier worker - Inclusion

(Regulation No 36/63 of the Council, Art. 1(1)(c) )

2. Social security for migrant workers - Sickness insurance - Invalidity insurance - Wholly unemployed frontier worker - Arrangements under Regulation No 36/63 and then Regulation No 1408/71 before its amendment by Regulation No 2793/81 - Benefits payable by the competent institution of the Member State in which the person concerned was last employed

(Council Regulations No 36/63, Art. 6(1), and No 1408/71, Art. 39(1) and (2), before the amendment introduced by Regulation No 2793/81)

3. Social security for migrant workers - Insurance periods - Periods treated as such - Wholly unemployed frontier worker required to claim unemployment benefit in the Member State of residence - Period of unemployment not recognized as an insurance period in the Member State of residence - Legislation of the Member State in which the person concerned was last employed treating periods of unemployment completed on its territory as periods of sickness insurance - Obligation on the Member State in which person concerned was last employed to treat the period of unemployment completed in the Member State of residence as an insurance period

(EEC Treaty, Arts 48 to 51; Council Regulations No 3, Art. 1(p), No 36/63, Art. 19(1), and No 1408/71, Art. 1(r) )

Summary

1. Article 1(1)(c) of Regulation No 36/63 on social security for frontier workers must be interpreted as meaning that a frontier worker does not lose that status by virtue of the fact that he is wholly unemployed.

2. Under Regulation No 36/63 and then Regulation No 1408/71 before its amendment by Regulation No 2793/81, a wholly unemployed frontier worker could claim benefits for incapacity for work by virtue of Article 6(1) of Regulation No 36/63 and thereafter invalidity benefits by virtue of Article 39(1) and (2) of Regulation No 1408/71 from the Member State in which he was last employed.

3. The period during which a frontier worker is wholly unemployed and required, pursuant to Article 19(1) of Regulation No 36/63, to claim unemployment benefit in the Member State of residence, although not recognized in that Member State as an insurance period or equivalent period, must be treated as such in the Member State in which the person concerned was last employed, where the legislation applicable at the material time treated periods of unemployment completed on its territory as periods of sickness insurance.

That is the appropriate solution notwithstanding the provisions of Regulations No 3 and No 1408/71 which state that "insurance periods" means periods defined or treated as such by the legislation under which they were completed, and which, if applied in such a case, would, because they would have the effect of depriving a migrant worker of advantages which he would have been able to claim under the legislation of a single Member State, be contrary to the objective pursued by Articles 48 to 51 of the Treaty.
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1. Agriculture - Common organization of the markets - Milk and milk products - Aid to skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves - Supervision of use - Procedure - Commercial documents - Concept - Manufacturing records - Inclusion

(Commission Regulation No 1725/79, Art. 10(2)(d) )

2. Agriculture - Common agricultural policy - Financing by the EAGGF - Principles - Aid paid in contravention of Community rules - Failure to comply with the requirements relating to proof or supervision - Charging to the Fund - Not permissible

(Council Regulation No 729/70, Arts 2 and 3)

Summary

1. The concept of "commercial documents" in Article 10(2)(d) of Regulation No 1725/79, under which Member States are required to carry out thorough documentary checks concerning aid to skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves, also defined in Article 1(2) of Directive 77/435 on scrutiny by Member States of EAGGF transactions, applies to all the documents to be scrutinized examination of which makes it possible to demonstrate whether transactions in respect of which aid has been granted were carried out in accordance with Community requirements. In particular, it includes manufacturing records containing a list of the ingredients necessary to produce a given quantity of feedingstuffs.

2. Articles 2 and 3 of Regulation No 729/70 on the financing of the common agricultural policy enable the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the different agricultural sectors. In cases where Community rules authorize payment of aid only on condition that certain formalities relating to proof or supervision are observed, aid paid in disregard of that condition is not in accordance with Community law and the expenditure incurred therein may not therefore be charged to the EAGGF.

When the Commission is entitled, because the abovementioned supervision has not been carried out, to refuse to charge to the EAGGF the whole of the sums improperly paid, the Member State concerned cannot complain that it has merely imposed a flat-rate reduction of 10%.
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1. Social security for migrant workers - Applicable legislation - Employed persons in receipt of an early-retirement pension established in a Member State other than that in which they were last employed - Inapplicability of provisions concerning employed persons - Consequences - Applicability as regards the grant of family benefits of residence conditions laid down in the legislation of the Member State in which the persons concerned were last employed - Continuance of compulsory affiliation to one of the branches of the national social security scheme of the Member State in which the persons concerned were last employed - No effect

(Council Regulation No 1408/71, Arts 13(2)(a) and 73)

2. Actions against Member States for failure to fulfil obligations - Subject-matter of the dispute - Delimitation during the preliminary administrative procedure - Subsequent extension - Not permissible

(EEC Treaty, Art. 169)

Summary

1. Article 13(2)(a) of Regulation No 1408/71, which is designed to resolve conflicts of legislation which may arise where, over the same period, the place of residence and the place of employment are not situated in the same Member State, does not apply in the case of an employed person who, after definitively ceasing all occupational activity, receives an early-retirement pension and resides in a Member State other than the one in which he was last employed. For that reason Article 73 of Regulation No 1408/71 is also not applicable to such a person, with the result that the residence conditions governing the grant of family benefits contained in the legislation of the Member State in which he was last employed may be relied on as against him, and the fact that he continues to be compulsorily insured under one of the branches of the national social security scheme has no effect on this situation.

2. The scope of an action brought under Article 169 of the Treaty is delimited both by the preliminary administrative procedure provided for by that article and by the form of order sought in the application. The scope of the action cannot be extended after the issue of the reasoned opinion, since the application and the reasoned opinion must be founded on the same grounds and submissions.
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Agriculture - Common organization of the markets - Products processed from fruit and vegetables - Protective measures applicable to imports of Morello cherries - Import price - Method of calculation

(Commission Regulation No 1626/85, Art. 3(1) )

Summary

Article 3(1) of Regulation No 1626/85 on protective measures applicable to imports of certain Morello cherries must be interpreted as meaning that, for the purpose of calculating the import price, account must be taken of the cost of the immediate packings with which the importer has provided the supplier free of charge.