ddrg/super_eurlex huggingface dataset:
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Convention on Jurisdiction and the Enforcement of Judgments - Lis alibi pendens - Proceedings between the `same parties' - Definition - Whether insurer and its insured are to be treated as the same party - Condition - Litigation concerning the obligation of the owner of the cargo of a vessel to contribute to the general average following the foundering of the vessel

(Convention of 27 September 1968, Art. 21)

Summary

An insurer and its insured must be considered to be one and the same party for the purposes of the application of Article 21 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, where there is such a degree of identity between their interests that a judgment delivered against one of them would have the force of res judicata as against the other. On the other hand, application of the said article cannot have the effect of precluding the insurer and its insured, where their interests diverge, from asserting their respective interests before the courts as against the other parties concerned.

Thus, Article 21 of the Convention is not applicable in the case of two actions for contribution to general average, one brought by the insurer of the hull of a vessel which has foundered against the owner and the insurer of the cargo which the vessel was carrying when it sank, the other brought by the latter two parties against the owner and the charterer of the vessel, unless it is established that, with regard to the subject-matter of the two disputes, the interests of the insurer of the hull of the vessel are identical to and indissociable from those of its insured, the owner and the charterer of that vessel.
Case C-298/96

Oelmühle Hamburg AG and Jb. Schmidt Söhne GmbH & Co. KG

v

Bundesanstalt für Landwirtschaft und Ernährung

Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main

‛Unduly paid Community subsidy — Recovery — Application of national law — Conditions and limits’

Opinion of Advocate General Léger delivered on 4 December 1997 I-4769

Judgment of the Court (Fifth Chamber), 16 July 1998 I-4782

Summary of the Judgment

Own resources of the European Communities — Unduly paid Community subsidies — Recovery — National legislation permitting loss of enrichment to be taken into consideration — Whether permissible — Conditions

Community law does not in principle preclude national legislation from allowing recovery of unduly paid Community subsidies to be barred, on the basis of criteria such as loss of the enrichment, where, in the case of subsidies for processing oil seeds:

— the recipient of the subsidy had already, at the time when it was granted, passed on the pecuniary advantage resulting from it by paying the producer the target price prescribed by Community law, and

— any right of recourse against his suppliers is worthless. That presupposes, however:

— that the good faith of the recipient has first been established, and

— that the conditions prescribed are the same as those which apply with respect to the recovery of purely national financial benefits.

With regard more specifically to the condition that the recipient should have acted in good faith, if a trader draws up and submits a declaration with a view to obtaining a subsidy, the mere fact of having drawn up that document cannot deprive him of the right to plead his good faith when the declaration is based exclusively on information which was provided by third parties. It is, however, for the national court to consider whether certain factors should not, in the circumstances of each case, have caused the trader to check the accuracy of this information.
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Tax provisions - Internal taxation - System of taxation on audiovisual and photo-optical products - Taxable amount and procedure for collecting the tax different for domestic products and for products imported from other Member States - Incompatible with Article 95 of the Treaty

(EC Treaty, Art. 95)

Summary

Article 95 of the Treaty is to be interpreted as precluding a Member State from introducing and levying a consumption tax in so far as the taxable amount and the procedure for collecting the tax are different for domestic products and for products imported from other Member States.

Article 95 must be considered to have been infringed by national legislation introducing a consumption tax in so far as

- for products manufactured in that State, no transport or distribution costs are included in the taxable amount, whereas, for products imported from other Member States, the taxable amount consists of the value for customs purposes, plus any costs and charges for delivery to the Italian border, less transport or distribution costs incurred within that State;

- in the case of domestic products, all costs borne within the national territory in respect of marketing are excluded from the taxable amount, whereas, for imported products, costs related to marketing within the national territory but incurred outside it are included;

- the possibility of making a flat-rate deduction for the purposes of calculating the taxable amount is reserved to domestic products; and

- for imported goods, the obligation to pay the charge arises at the time of importation through customs, whereas for domestic goods, it arises only when the domestic producer lodges the return with the tax authorities during the month following the quarter in which the goods have been placed on the market, the event giving rise to the charge occurring when the product intended for consumption is placed on the domestic market.
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1 Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification - Not permissible

(EC Treaty, Art. 169)

2 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 by the reasoned opinion

(EC Treaty, Art. 169)

3 Environment - Water pollution - Directive 76/464 - Obligation to establish specific programmes with a view to reducing pollution caused by certain dangerous substances - Scope

(Council Directive 76/464, Art. 7)

Summary

4 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 the obligations and time-limits laid down in a directive.

5 In an action under Article 169 of the Treaty, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account by the Court.

6 The programmes which the Member States are required to establish, under Article 7 of Directive 76/464, in order to reduce pollution of inland surface water and territorial waters by the substances within List II in the annex to the directive must be specific and include, in accordance with Article 7(3), quality objectives with regard to the waters concerned. Such programmes are an instrument the purpose of which is to define procedures, within a consistent framework, for the protection of waters from pollution by the substances in List II, enabling in particular a comparative assessment to be made of the various schemes in force for the protection of waters in the Member States.

Accordingly, legislation which constitutes only a series of ad hoc legislative measures which cannot amount to an organised and coordinated system of quality objectives relating to specific watercourses or bodies of standing water cannot be considered to be a programme within the meaning of Article 7 of the directive.
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State aid - Meaning - Agreements for the repayment of sums advanced by a public body to an undertaking in liquidation or in difficulties - Rate of interest to be applied

(EC Treaty, Art. 92)

Summary

$$In order to determine whether a State measure constitutes aid for the purposes of Article 92 of the Treaty, it is necessary to establish whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions. In the case of an undertaking in liquidation or in difficulties, for which public bodies have advanced sums for the payment of employees' salaries or of debts in respect of social security contributions and with which those bodies have concluded agreements under which the accumulated debts are to be rescheduled or paid by instalments in order to facilitate their repayment, account must be taken of the fact that those agreements were concluded because the undertaking was already subject to the pre-existing statutory obligation to make such payments, which means that they did not therefore create any new debts owed by the undertaking to the public authorities. The interest normally applicable to that type of debt is intended to make good the loss suffered by the creditor because of the debtor's delay in performing its obligation to pay off its debt, namely default interest. In cases where the rate of default interest applied to the debts of a public creditor is not the same as the rate charged for the debts owed to a private creditor, the latter rate ought to be charged where it is higher than the former, if the rate of default interest is not to constitute an element of State aid.
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Agriculture - Common organisation of the markets - Milk and milk products - Additional levy on milk - Temporary withdrawal of a percentage of the reference quantities exempt from the levy - Conversion into a definitive reduction without compensation - Measure also affecting additional quantities acquired by producers - Right to property - Principles of proportionality and protection of legitimate expectations - Whether breached - No such breach

(Council Regulation No 3950/92, Arts 3(1) and 4(1))

Summary

In converting, without compensation for producers, the temporary withdrawal of a percentage of the reference quantity exempt from the levy on milk, within the meaning of Regulation No 775/87, into a definitive reduction, Articles 3(1) and 4(1) of Regulation No 3950/92 do not infringe either the general principles of Community law or the fundamental right to property, specifically as regards the additional quantities granted in return for payment.

Additional reference quantities which, after being withdrawn from the market, are readmitted to it before reallocation to other producers are no different from initial reference quantities, both being subject to the same rules concerning temporary suspension and definitive reduction and it would be contrary to the spirit and purpose of the additional levy scheme to exclude the former.

As regards the right to property, the regulations in question - which further certain aims pursued in the general interest, to remedy the surpluses on the milk market - do not affect the actual substance of that right.

Having regard to the persistence of surpluses, a definitive withdrawal of the relevant percentage of the additional reference quantities appears to be appropriate and necessary to achieve the aim of that measure, namely an enduring reduction of the surpluses.

As regards the principle of the protection of legitimate expectations, the provisions at issue disclose no factor of such a kind as to enable producers who have acquired additional reference quantities in return for payment to entertain legitimate expectations that such additional reference quantities would be treated differently by reason of the way in which they were acquired and would therefore be excluded from the measure in question.
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Fisheries - Conservation of the resources of the sea - System of fishing quotas - Principle of relative stability - Maintenance of a fixed percentage of the volume of the catches available for each of the stocks concerned - Authorisation to fish in an area for part of the total allowable catch fixed for that same species in another area - Breach of the principle of relative stability

(Council Regulations No 170/83, Art. 4(1), and No 3760/92, Art. 8(4)(ii))

Summary

$$The principle of relative stability was laid down in Regulation No 170/83, Article 4(1) of which provided that [t]he volume of the catches available ... shall be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered. It was restated in Regulation No 3760/92, Article 8(4)(ii) of which provides that the Council shall distribute the fishing opportunities between Member States in such a way as to assure each Member State relative stability of fishing activities for each of the stocks concerned. Despite the differences in their wording, those two provisions cannot be interpreted differently, so that the fishing opportunities which are to be distributed by the Council in compliance with the principle of relative stability must be understood as comprising the entire volume of the catches available. For the purposes of applying the principle of relative stability, the fishing opportunities for each fish stock, defined as fish of a particular species located within a specified geographical area, must be assessed separately. It follows from Article 8(4)(ii) of Regulation No 3760/92 that relative stability of fishing activities must be assured to each Member State for each of the stocks concerned. The stability of fishing activities is relative in the sense that it means the maintenance of a fixed percentage of the volume of the catches available for each of the stocks concerned - a volume which itself is likely to change - and not the guarantee of a fixed quantity of catches. The principle of relative stability could be circumvented if the actual fishing opportunities in a specific geographical area for which a total allowable catch (TAC) had been fixed could be increased by means of an authorisation to fish in that area for part of the TAC fixed for that same species for another area. The consequence of this would be that for the first area the distribution of fishing opportunities would be different from the distribution of the TAC fixed for that area. By authorising one Member State, the holder of an anchovy quota in ICES area IX, with a view to a subsequent transfer to another Member State, to fish for part of that quota in the waters of ICES area VIII, the anchovy fishing opportunities in ICES area VIII were increased to the detriment of a third Member State which, although it had actually been allocated a percentage of the anchovy TAC for ICES sub-area VIII, nevertheless did not obtain that percentage of the anchovy fishing opportunities in that area.

( see paras 38-42 )
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Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification based on the delay in transposing a previous related directive - Not permissible

(EC Treaty, Art. 169)

Summary

Where a Member State has failed to transpose a directive within the period prescribed, the claim alleging failure to fulfil obligations in that connection must be regarded as being well founded. The failure to transpose cannot be justified by the delay in implementing an earlier directive, related to that in issue, which itself ought to have been transposed before that period expired.
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Approximation of laws - Procedure for the provision of information in the field of technical standards and regulations - Obligation of Member States to communicate to the Commission all draft technical regulations - Purpose and scope - National legislation containing many provisions not constituting technical regulations - Obligation to communicate the full text

(Council Directive 83/189, Art. 8(1), first subpara.)

Summary

The aim of the last sentence of the first subparagraph of Article 8(1) of Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations is to enable the Commission to have as much information as possible on any draft technical regulation with respect to its content, scope and general context in order to enable it to exercise as effectively as possible the powers conferred on it by the Directive. It follows that, when draft national legislation contains technical regulations, it must be communicated to the Commission in full.
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Approximation of laws - Restrictions on the marketing and use of dangerous substances and preparations - Directive 76/769, as amended by Directive 91/173 - Limit value for concentrations of pentachlorophenol - Applicability to products treated with substances and preparations produced from pentachlorophenol - Excluded

(Council Directive 76/769, as amended by Directive 91/173)

Summary

The limit value established in the first sentence of point 23 of Annex I to Directive 76/769 relating to restrictions on the marketing and use of certain dangerous substances and preparations, as amended by Directive 91/173, is applicable to pentachlorophenol, its salts and esters and to preparations produced from those substances, but not to products treated with those substances or preparations. The Member States remain, therefore, in principle free to fix limit values for such products independently.
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1 Social security for migrant workers - Invalidity insurance - Benefits recipient residing in a Member State other than the competent State - Frontier workers - Administrative checks and medical examinations - Examination carried out by the competent institution without requesting a prior examination by the institution of the place of residence - Not permissible - Waiver by the recipient of the right to prior examination by the institution of the place of residence - Whether permissible - Conditions

(Council Regulation No 574/72, Art. 51(1))

2 Social security for migrant workers - Invalidity insurance - Determination of the degree of invalidity - Person residing in a Member State other than the competent State - Determination made by the competent institution without requesting a prior examination by the institution of the place of residence - Whether permissible - Obligation to take account of any administrative and medical information from the institution of the State of residence

(Council Regulation No 574/72, Art. 40)

Summary

1 In the case of a former frontier worker and recipient of invalidity benefits who lives in a Member State other than that of the institution responsible for payment, and whose place of residence is nearer to the institution of the competent Member State than to the institution of the State of residence, Article 51(1) of Regulation No 574/72 fixing the procedure for implementing Regulation No 1408/71, as amended and updated by Regulation No 2001/83, precludes the competent institution from carrying out the administrative checks and medical examination of that worker without requesting a prior examination by the institution of his place of residence.

However, the above provision does not preclude the worker from waiving the right to prior examination by the institution of his place of residence, provided that his waiver is freely made and unambiguous. Although that option cannot be inferred directly from the wording of Article 51(1), it must be accepted that, having regard to the objectives of that provision, namely to protect the interests of the recipient of invalidity benefits, it cannot be the subject of a general exclusion.

2 In the case of a first assessment of invalidity benefit granted to a person who is resident in a Member State other than that of the competent institution, Article 40 of Regulation No 574/72 fixing the procedure for implementing Regulation No 1408/71 does not preclude the competent institution from determining the degree of invalidity on the basis of its own medical examination without requesting a prior examination by the institution of the place of residence. However, the competent institution must take account of any documents, medical reports and administrative information from the institution in the Member State in which the worker resides.
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Approximation of laws - Package travel, package holidays and package tours - Directive 90/314 - Scope - International student exchanges - Not covered - Special case

(Council Directive 90/314, Art. 2(1))

Summary

Directive 90/314 on package travel, package holidays and package tours does not apply to travel:

- comprising student exchanges of about six months' or a year's duration;

- the purpose of which is attendance by the student at an educational establishment in the host country in order to familiarise himself with its people and culture; and

- during which the student stays with a host family as if he were a member thereof free of charge.
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1 Environment - Assessment of the environmental impact of certain projects - Directive 85/337 - National implementing measures, belatedly enacted, waiving the obligation to make an assessment in the case of consent procedures initiated before the entry into force of those measures but after the deadline for transposing the Directive - Not permissible

(Council Directive 85/337, Art. 12(1))

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

(EC Treaty, Art. 169)

3 Actions for failure to fulfil obligations - Consideration of the merits by the Court - Where the alleged failure to fulfil obligations has no adverse consequences - Irrelevant

(EC Treaty, Art. 169)

4 Procedure - Costs - Discontinuance or withdrawal justified by the conduct of the other party

(Rules of Procedure of the Court of Justice, Art. 69(5))

Summary

1 Article 12(1) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment must be interpreted as not permitting a Member State which has transposed the Directive into national law after 3 July 1988 (the deadline for transposition) to waive by transitional provision the obligations concerning the environmental impact assessment required by the Directive, in the case of projects in respect of which the consent procedure was initiated before the entry into force of the national legislation transposing the Directive, but after 3 July 1988.

2 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 the obligations and time-limits laid down in a directive.

3 Failure by a Member State to fulfil an obligation imposed by a rule of Community law is sufficient to constitute a breach of obligations; consequently, the fact that the failure had no adverse effects has no bearing on the evaluation of the merits of an action brought under Article 169 of the Treaty.

4 Where partial withdrawal is justified by the conduct of the other party, and upon application by the withdrawing party, the other party is to be ordered to pay the costs in accordance with Article 69(5) of the Rules of Procedure of the Court of Justice.