ddrg/super_eurlex huggingface dataset:
Joined Cases C-2/01 P and C-3/01 P





Bundesverband der Arzneimittel-Importeure eV and

Commission of the European Communities



v

Bayer AG





«(Appeals – Competition – Parallel imports – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Meaning of agreement between undertakings – Proof of the existence of an agreement – Market in pharmaceutical products)»

Opinion of Advocate General Tizzano delivered on 22 May 2003

Judgment of the Court, 6 January 2004

Summary of the Judgment

1.. Appeals – Pleas in law – Erroneous assessment of the facts – Inadmissible – Dismissed

(Art. 225 EC; Statute of the Court of Justice, Art. 58)

2.. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement on the Commission

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3.. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Agreement designed to hinder parallel imports – Agreement may exist without a system of subsequent monitoring and penalties

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4.. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Meaning – Unilateral conduct – Not included – Conclusion by tacit acceptance – Need for an invitation to fulfil anti-competitive goals jointly

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

5.. Competition – Agreements, decisions and concerted practices – Unilateral conduct restricting competition within the context of continuous business relations – No prohibited agreement

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

1.

2.

3.

4.

5.
JUDGMENT OF THE COURT (Fifth Chamber)

20 November 2003

((Sixth VAT Directive – Exemption for medical care provided in the exercise of the medical and paramedical professions))

In Case C-307/01,

and

THE COURT (Fifth Chamber),,

after considering the written observations submitted on behalf of:

─

─

─

having regard to the Report for the Hearing,

after hearing the oral observations of Dr d'Ambrumenil and of Dispute Resolution Services Ltd, of the United Kingdom Government and of the Commission, at the hearing on 20 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 30 January 2003,
Case C-342/01

María Paz Merino Gómez

v

Continental Industrias del Caucho SA

(Reference for a preliminary ruling from the Juzgado de lo Social nº 33 de Madrid)

(Social policy – Equal treatment for men and women – Maternity leave – Worker whose period of maternity leave coincides with the period of annual leave for all staff agreed in a collective agreement on annual leave)

Summary of the Judgment

1. Social policy – Protection of safety and health of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Entitlement to annual leave – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 – Equal treatment of male and female workers – Directive 76/207 – Maternity leave coinciding with period for annual leave fixed by a collective agreement for the entire workforce – Worker’s entitlement to take annual leave outside the period of maternity leave

(Council Directives 76/207, Art. 5(1), 92/85, Art. 11(2)(a), and 93/104, Art. 7(1))

2. Social policy – Protection of safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 – Maternity leave coinciding with period for annual leave fixed, by a collective agreement, for the entire workforce – Worker’s entitlement to a longer period of annual leave, provided for by national law, than the minimum laid down by Directive 93/104

(Council Directives 92/85, Art. 11(2)(a), and 93/104)

1. Article 7(1) of Directive 93/104 concerning certain aspects of the organisation of working time, Article 11(2)(a) of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding and Article 5(1) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions are to be interpreted as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce.

(see para. 41, operative part 1)

2. As regards the preservation of rights connected with the employment contract, Article 11(2)(a) of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding is to be interpreted as also applying to the entitlement of a worker, whose period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce, to a longer period of annual leave, provided for by national law, than the minimum laid down by Directive 93/104 concerning certain aspects of the organisation of working time.

(see para. 45, operative part 2)
Case C-380/01





Gustav Schneider

v

Bundesminister für Justiz





(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

«(Directive 76/207/EEC – Equal treatment for men and women – Promotion – Principle of effective control by the courts – Inadmissibility)»

Opinion of Advocate General Alber delivered on 10 December 2002

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

Summary of the Judgment

1.. Preliminary rulings – Jurisdiction of the Court – Limits – General or hypothetical questions – Determination by the Court as to whether it has jurisdiction

(Art. 234 EC)

2.. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Directive 76/207 – Principle of effective control by the courts – Whether possibility of bringing a claim for compensation against the State before the civil courts is adequate

(Council Directive 76/207, Art. 6)

1.

2.
Case C-464/01

Johann Gruber

v

Bay Wa AG

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Brussels Convention – Article 13, first paragraph – Conditions for application – Definition of ‘consumer contract’ – Purchase of tiles by a farmer for roofing a farm building used partly for private and partly for business purposes)

Opinion of Advocate General Jacobs delivered on 16 September 2004

Judgment of the Court (Second Chamber), 20 January 2005

Summary of the Judgment

Convention on Jurisdiction and the Enforcement of Judgments – Jurisdiction over consumer contracts – Definition of ‘consumer contract’ – Contract relating to goods intended partly for business and partly for private purposes – Excluded except where business use is limited – Determination by the national court – Criteria

(Convention of 27 September 1968, Arts 13 to 15)

The rules of jurisdiction laid down by the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden must be interpreted in the following way:

– a person who concludes a contract for goods intended for purposes which are in part within and in part outside his trade or profession may not rely on the special rules of jurisdiction laid down in Articles 13 to 15 of the Convention, unless the trade or professional purpose is so limited as to be negligible in the overall context of the supply, the fact that the private element is predominant being irrelevant in that respect;

– it is for the court seised to decide whether the contract at issue was concluded in order to satisfy, to a non-negligible extent, needs of the business of the person concerned or whether, on the contrary, the trade or professional purpose was negligible;

– to that end, that court must take account of all the relevant factual evidence objectively contained in the file. On the other hand, it must not take account of facts or circumstances of which the other party to the contract may have been aware when the contract was concluded, unless the person who claims the capacity of consumer behaved in such a way as to give the other party to the contract the legitimate impression that he was acting for the purposes of his business.

(see para. 54, operative part)
Case C-349/01

Betriebsrat der Firma ADS Anker GmbH

v

ADS Anker GmbH

(Reference for a preliminary ruling from the Arbeitsgericht Bielefeld)

(Social policy – Articles 4 and 11 of Directive 94/45/EC – European Works Council – Information and consultation of workers in Community-scale undertakings – Obligation for central management to provide certain information to employees’ representatives)

Summary of the Judgment

Social policy – Information and consultation of workers in Community-scale undertakings– Directive 94/45 – Information essential for the opening of negotiations for the establishment of a European Works Council – Request made to an undertaking in the group not in possession of that information – Obligation for the central management of the group or for the deemed central management, under Article 4(2) of the Directive, to provide that information

(Council Directive 94/45, Art. 4(1), Art. 4(2), second subpara., and Art. 11)

Article 4(1) and Article 11 of Council Directive 94/45 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees must be interpreted as meaning that Member States are required to impose on undertakings established within their territory and constituting the central management of a Community-scale group of undertakings for the purposes of Article 2(1)(e) and Article 3(1) of the directive, or the deemed central management under the second subparagraph of Article 4(2), the obligation to supply to another undertaking in the same group established in another Member State the information requested from it by its employees’ representatives, where that information is not in the possession of that other undertaking and it is essential for opening negotiations for the setting up of a European Works Council.

(see para. 67, operative part)
Keywords

Summary



Keywords

Social policy — Protection of workers' safety and health — Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work — Organisation of activities related to protection against and prevention of occupational risks — Obligation of Member States to define the aptitudes required of workers designated for that purpose — (Council Directive 89/391, Art. 7(8))

Summary

The transposition of Article 7(8) of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work entails the adoption by the Member States of laws or regulations which comply with the requirements of that directive and which are brought to the attention of the undertakings concerned by appropriate means, so as to enable them to be aware of their obligations in the matter and the competent national authorities to check that those measures are complied with.

A Member State fails to fulfil its obligations under that directive where it fails to define the necessary capabilities and aptitudes for persons designated to carry out activities related to protection against and prevention of occupational risks.

see paras 4, 7, operative part
Keywords

Summary



Keywords

Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Not possible to rely on the GATT rules in order to contest the lawfulness of a Community act — Exceptions — Community measure intended to implement a GATT rule or expressly and specifically referring thereto — Judicial review — Precluded before expiry of any reasonable period granted to the Community for compliance with the WTO rules — (EC Treaty, Art. 178 (now Art. 235 EC) and Art. 215, second para. (now Art. 288, second para., EC))

Summary

Non-contractual liability on the part of the Community under the second paragraph of Article 215 of the Treaty is subject to a number of conditions relating to the illegality of the conduct alleged against the Community institutions, actual damage and the existence of a causal link between the conduct of the institution and the damage complained of. Given their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions. It is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules.

In any event, as regards the period prior to the expiry of the 15-month period granted to the Community for the purpose of complying with its obligations under the WTO rules, the Community Courts cannot carry out that review, particularly not in the context of an action for damages under Article 178 of the Treaty, without rendering ineffective the grant of a reasonable period for compliance with the recommendations or rulings of the Dispute Settlement Body, as provided for in the dispute settlement system put in place by the WTO agreements.

see paras 51-53, 62
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Summary



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Freedom to provide services – Restrictions – National legislation relating to the reimbursement of expenditure in connection with a health cure taken in another Member State – Requirement to obtain prior recognition of eligibility – Granted only if the treatment is absolutely necessary owing to the greatly increased prospects of success in the other Member State – Not permissible – Grant precluded if the cure is commenced before the conclusion of the court proceedings brought against the decision of refusal – Not permissible – Grant conditional upon the health spa concerned being listed in the Register of Health Spas – Whether permissible – Conditions

(Arts 49 EC and 50 EC)

Summary

Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional on obtaining prior recognition of eligibility, which is given only where it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary owing to the greatly increased prospects of success in that other Member State.

Those provisions preclude also the application of national rules under which the reimbursement of such expenditure is precluded where the person concerned has not awaited the conclusion of the court proceedings brought against the decision refusing to recognise that expenditure as eligible for assistance before commencing the cure in question.

Articles 49 EC and 50 EC are, on the other hand, to be interpreted as meaning that they do not in principle preclude rules of a Member State under which reimbursement of such expenditure, whether the health cure is taken in that Member State or in another Member State, is made only where the health spa concerned is listed in the Register of Health Spas. However, it is for the national court to ensure that any conditions to which the registration of a health spa in such a register may be subject are objective and do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned.

(see paras 51, 59, operative part 1-3)
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Summary



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Tax provisions – Harmonisation of laws – Structures of excise duties on mineral oils – Directive 92/81 – Exemption of fuel used for ‘navigation within Community waters (including fishing), other than in private pleasure craft’ – Meaning

(Council Directive 92/81, Art. 8(1)(c))

Summary

Article 8(1)(c) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, which provides for exemption from the harmonised excise duty of mineral oils supplied for use as fuel for ‘navigation within Community waters (including fishing), other than in private pleasure craft’, must be interpreted as meaning that that term includes all forms of navigation, irrespective of the purpose of the voyage, when that voyage is made for commercial purposes.

(see para. 29, operative part)
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Summary



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Approximation of laws – Mutual assistance for the recovery of customs duties – Directive 76/308 – Temporal application – Application to claims which arose before the entry into force of the directive in the State where the requested authority is situated

(Council Directive 76/308)

Summary

Directive 76/308 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of the agricultural levies and customs duties, is to be interpreted as applying to customs claims which arose in one Member State under an instrument issued by that State before that directive entered into force in the other Member State, where the requested authority is situated.

Since the purpose of the directive is to eliminate obstacles to the functioning of the common market arising from problems related to the crossborder recovery of the claims referred to and to prevent fraudulent operations, it is conceivable that the directive may apply to claims existing at the time it entered into force in the State where the requested authority is situated.

(see paras 22-23, operative part)
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Summary



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International agreements – EEC-Turkey Association Agreement – Social security for migrant workers – Early old-age pension in the event of unemployment – National legislation making entitlement conditional on the worker’s having received benefits under national unemployment insurance over a certain period prior to his application – Not permissible

(Decision No 3/80 of the EC Turkey Association Council, Art. 3(1))

Summary

Article 3(1) of Decision No 3/80 of the EEC-Turkey Association Council on the application of the social security schemes of the Member States to Turkish workers and members of their families must be interpreted as precluding the application of legislation of a Member State which makes entitlement to an early old-age pension in the event of unemployment conditional upon fulfilment of the requirement that the person concerned has received, within a certain period prior to his application for the pension, unemployment insurance benefits from that Member State alone.

(see para. 68, operative part)
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Summary



Keywords

1. State aid – Planned aid – Notification of the Commission – Extent of the obligation – Notification required to include the method of financing because of its effect on the admissibility of the aid

(EC Treaty, Art. 93(3) (now Art. 88(3) EC))

2. State aid – Planned aid – Grant of aid in contravention of the prohibition laid down by Article 93(3) of the Treaty (now Article 88(3) EC) – Duty of the national courts to uphold the rights of the persons concerned – Competence to interpret the concept of aid

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

3. State aid – Concept – Bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign through resources levied on its members and compulsorily earmarked for that campaign – Excluded

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

Summary

1. Where the method by which State aid is financed, particularly by means of compulsory contributions, forms an integral part of the aid measure, consideration of the latter by the Commission must necessarily also take into account that method of financing the aid. In such a case, the notification of the aid provided for in Article 93(3) of the Treaty (now Article 88(3) EC) must also cover the method of financing, so that the Commission may consider it on the basis of all the facts. If this requirement is not satisfied, it is possible that the Commission may declare that an aid measure is compatible when, if the Commission had been aware of its method of financing, it could not have been so declared.

(see paras 29-30)

2. It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the obligations imposed on the Member States by Article 93(3) of the Treaty (now Article 88(3) EC). In order to determine whether a State measure has been introduced contrary to that provision, a national court may have cause to interpret the concept of aid contained in Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC).

(see para. 31)

3. On a proper construction of Articles 92(1) and 93(3) of the Treaty (now Article 88(3) EC), bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign organised for the benefit of its members and decided on by them, through resources levied from those members and compulsorily earmarked for the funding of that campaign, do not constitute an integral part of an aid measure within the meaning of those provisions and it was not necessary for prior notification of them to be given to the Commission since it has been established that that funding was carried out by means of resources which that trade association, governed by public law, never had the power to dispose of freely.

(see para. 41, operative part)
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Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Award of contracts – Criteria for award – National rules which impose a requirement that the contracting authorities use only the criterion of the lowest price – Not permissible

(Council Directive 93/37, Art. 30(1))

Summary

Article 30(1) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts is to be interpreted as meaning that it precludes national rules which, for the purpose of awarding public works contracts following open or restricted tendering procedures, impose a general and abstract requirement that the contracting authorities use only the criterion of the lowest price.

Such rules deprive the contracting authorities of the possibility of taking into consideration the nature and specific characteristics of the contracts in question, taken in isolation, by choosing for each of them the criterion most likely to ensure free competition and thus to ensure that the best tender will be accepted.

(see paras 40, 42, operative part)