ddrg/super_eurlex huggingface dataset:
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1 Freedom of movement for persons - Workers - Equal treatment - Promotion on grounds of seniority - Collective agreement applicable to public sector employees taking into account only periods of employment completed in the national public service but not periods of comparable employment completed in the public service of another Member State - Discrimination on grounds of nationality - Justification - None

(EC Treaty, Art. 48; Council Regulation No 1612/68, Art. 7(1) and (4))

2 Freedom of movement for persons - Workers - Equal treatment - Clause in a collective agreement contrary to the principle of non-discrimination - De jure nullity - Obligations of the national court

(EC Treaty, Art 48; Council Regulation No 1612/68, Art. 7(1) and (4))

Summary

3 Article 48 of the Treaty and Article 7(1) and (4) of Regulation No 1612/68 on freedom of movement for workers within the Community preclude a clause in a collective agreement applicable to the public service of a Member State which provides for promotion on grounds of seniority for employees of that service after eight years' employment in a salary group determined by that agreement without taking any account of previous periods of comparable employment completed in the public service of another Member State. Such a clause is such as to infringe the principle of non-discrimination laid down by those provisions in that the conditions for promotion on grounds of seniority manifestly work to the detriment of migrant workers who have spent part of their careers in the public service of another Member State. As regards activities not falling within the scope of Article 48(4) of the Treaty, the clause cannot be justified either by arguments based on the specific characteristics of employment in the public service or, given the multiplicity of legally separate employers, by the desire to reward employee loyalty.

4 A clause in a collective agreement entailing discrimination contrary to Article 48 of the Treaty and to Article 7(1) of Regulation No 1612/68 is null and void by virtue of Article 7(4) of that regulation. Without requiring or waiting for that clause to be abolished by collective negotiation or by some other procedure, the national court must therefore apply the same rules to the members of the group disadvantaged by that discrimination as those applicable to the other workers.
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Common Customs Tariff - Tariff headings - Product having no specific therapeutic or prophylactic characteristics - Classification as a `medicament' under heading 3004 of the Combined Nomenclature - Excluded - Product regarded as a `medicinal product' for the purposes of Directive 65/65 - Not the deciding factor as regards tariff classification

(Council Regulation No 1010/86; Council Directive 65/65)

Summary

A product presented in the form of chewable tablets, effervescent tablets, and a drinkable solution in ampoules, their active ingredients being in principle identical, a drinkable 5 ml ampoule containing 1 g of arginine-aspartate as the single active ingredient, excipients and sodium, and a product presented in the form of a powder to make a drinkable solution, contained in sachets, and a drinkable solution in the form of ampoules, containing 3 g of arginine-glutamate (the active ingredient of the product, with the same therapeutic effects as arginine-aspartate), the second product having practically the same composition as the first product and identical therapeutic indications, cannot be classified under heading 3004 of the Combined Nomenclature, and consequently do not come within the scope of Regulation No 1010/86 laying down general rules for the production refund on certain sugar products used in the chemical industry, when it has not been established that the products had clearly defined therapeutic or prophylactic characteristics with an effect concentrated on precise functions of the human organism or that they were capable of being applied in the prevention or treatment of specific diseases or ailments.

Nor, for identical reasons, can a product marketed in a drinkable solution put up in 5 or 10 ml ampoules, one 5 ml ampoule containing 15 ìg of vitamin B 12 and a 10 ml ampoule double that quantity and in addition amino acids and preservatives, or a product presented in the form of drinkable ampoules for adults of 5 or 10 ml, its composition including 500 ìg of vitamin B 12 per ampoule of 10 ml and 250 ìg of vitamin B 12 per ampoule of 5 ml and also containing amino acids and preservatives, be classified under heading 3004 and consequently those products do not come within the scope of Regulation No 1010/86.

Neither the fact that, pursuant to the provisions of Directive 65/65 on medicinal products, marketing authorisations were granted for those products as `medicinal products' by the competent national authorities, nor the fact that those products are regarded as such under that State's legislation, nor the presentation of the products is a deciding factor in so far as the classification of such products is concerned.
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1 Freedom of movement for persons - Workers - Treaty provisions - Scope ratione personae - Possibility for an employer to rely on the rule of equal treatment

(EC Treaty, Art. 48)

2 Freedom of movement for persons - Workers - Equal treatment - Management of an undertaking - National rule requiring undertakings to appoint as manager a person residing in the territory of the State - Indirect discrimination based on nationality - Not permissible - Justification - None

(EC Treaty, Art. 48)

Summary

1 The rule of equal treatment in the context of freedom of movement for workers, enshrined in Article 48 of the Treaty, may also be relied upon by an employer in order to employ, in the Member State in which he is established, workers who are nationals of another Member State.

Whilst the rights deriving from Article 48 of the Treaty are undoubtedly enjoyed by those directly referred to - namely, workers - there is nothing in the wording of that article to indicate that they may not be relied upon by others, in particular employers. Furthermore, in order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer's entitlement to engage them in accordance with the rules governing freedom of movement for workers.

2 Article 48 of the Treaty precludes a Member State from providing that the owner of an undertaking exercising a trade on the territory of that State may not appoint as manager a person not resident there.

A requirement that nationals of the other Member States must reside in the State concerned in order to be appointed managers of undertakings is such as to constitute indirect discrimination based on nationality, contrary to Article 48(2) of the Treaty, since a residence criterion is liable to operate mainly to the detriment of nationals of other Member States, non-residents being in the majority of cases foreigners. It would be otherwise only if the imposition of such a residence requirement were based on objective considerations independent of the nationality of the employees concerned and proportionate to a legitimate aim pursued by the law of the Member State in question.
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1 Preliminary rulings - Reference to the Court - Determination of the questions to be put - Exclusive competence of the national court - Additional questions raised during the proceedings by the parties to the main action - Obligation of the Court to abide by the questions as stated in the order for reference

(EC Treaty, Art. 177)

2 Transport - Action by the Member States concerning public service obligations - Regulation No 1191/69 - Request for termination of a public service obligation where there are economic disadvantages - Entitlement of the Member States to reject such a request - Condition - Need to ensure adequate transport services - Concept

(Council Regulation No 1191/69, as amended by Regulation No 1893/91, Arts 1(3), 3 and 4)

Summary

1 Since under Article 177 of the Treaty it is for the national court, not the parties to the main action, to bring a matter before the Court of Justice, the right to determine the questions to be put to the Court devolves upon the national court alone and the parties may not change their tenor. To answer any additional questions mentioned by the parties to the main proceedings in their observations would moreover be incompatible with the Court's function under that article and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 20 of the Statute of the Court of Justice, bearing in mind that under that provision only the order of the referring court is notified to the interested parties.

2 Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, as amended by Regulation No 1893/91, in particular Articles 1(3) and 4 thereof, must be construed as not obliging the Member States to grant an application by a transport undertaking for partial termination of its public service obligation, even if that undertaking shows that maintaining the obligation involves economic disadvantages for it.

However, the only ground for refusing such an application is the need to ensure adequate transport services. That concept is to be assessed, in accordance with Article 3 of Regulation No 1191/69, by reference to the public interest, the possibility of having recourse to other forms of transport and the ability of such forms to meet the transport needs under consideration, and the transport rates and conditions which can be quoted to users. Where there are several ways of ensuring, while satisfying similar conditions, the provision of adequate transport services, the competent authorities are to select the way least costly to the community.
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Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Scope - Situation where a public body contracts out a service or awards a contract, thitherto entrusted to one undertaking, to another undertaking - Covered - Conditions

(Council Directive 77/187, Art. 1(1))

Summary

Article 1(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses is to be interpreted as meaning that the Directive applies to a situation in which a public body which has contracted out its home-help service for persons in need or awarded a contract for maintaining surveillance of some of its premises to a first undertaking decides, upon expiry of or after termination of that contract, to contract out the service or award the contract to a second undertaking, provided that the operation is accompanied by the transfer of an economic entity between the two undertakings. The term `economic entity' refers to an organised grouping of persons and assets enabling an economic activity which pursues a specific objective to be exercised. The mere fact that the service successively provided by the old and the new undertaking to which the service is contracted out or the contract is awarded is similar does not justify the conclusion that a transfer of such an entity has occurred.
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Actions for annulment - Actionable measures - Definition - Measures with binding legal effects - Preparatory measures - Exclusion

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)

Summary

$$Only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment. In the case of acts adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the Commission or the Council that are open to challenge and not intermediate measures whose purpose is to prepare for the final decision.

An act which is neither capable of producing nor intended to produce any legal effects cannot form the basis of an action for annulment. In order to ascertain whether or not a measure produces such effects it is necessary to look to its substance.

( see paras 25-27 )
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1 Economic and social cohesion - European Regional Development Fund - Management and monitoring - Transitional arrangements - Deadlines for requesting payment of the sums granted - Where deadlines are not met - Penalties - Automatic release of unclaimed sums - Whether in breach of the principles of Community solidarity, proportionality or protection of legitimate expectations - No such breach - Consultation of the ERDF Committee - Whether obligatory - No such obligation

(Council Regulations No 1784/84, Art. 32, and No 4254/88, Art. 12)

2 Economic and social cohesion - European Regional Development Fund - Grant of Community financial assistance - Deadline for submitting requests for final payment - Meaning of `request for final payment'

(Council Regulations No 2052/88, Art. 15, and No 4254/88, Art. 12)

Summary

1 In setting 31 March 1995 as the deadline for requesting final payment from the Commission of the sums committed for projects in respect of which co-financing by the European Regional Development Fund (ERDF) was decided before 1 January 1989, the transitional arrangements provided for by Article 12 of Regulation No 4254/88 left the Commission with no discretion as regards imposition of the penalty for non-observance of that deadline - namely the automatic release of portions of the sums committed - since release of the sums is the automatic and inescapable consequence of failure to observe that deadline.

It follows that the Commission's imposition of the penalty provided for in Article 12 of the above Regulation infringes neither the principle of Community solidarity nor its corollary, the principle of regional partnership; nor does it infringe the principles of proportionality or protection of legitimate expectations.

Furthermore, the procedure necessitating consultation of the ERDF Committee, laid down in Article 32 of Regulation No 1787/84 on the European Regional Development Fund, entails the exercise of discretion by the Commission and does not fall to be applied where the latter applies Article 12.

2 It is clear from Article 12 of Regulation No 4254/88, read in conjunction with Article 15 of Regulation No 2052/88, that requests submitted by Member States for final payment of sums committed by way of funding for projects co-financed by the European Regional Development Fund must at least contain the information needed by the Commission in order to proceed with the final conclusion of those projects and payment of the sums claimed.

A letter by which a Member State confines itself to announcing the completion of certain projects for which funding has been granted and which does not provide the Commission with any information enabling it finally to conclude the projects at issue, in particular as regards the amounts claimed, cannot be regarded as a request for final payment within the meaning of Article 12 of Regulation No 4254/88.
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Acts of the institutions - Directives - Implementation by the Member States - Mere administrative practices not sufficient

(EC Treaty, Art. 189, third para.)

Summary

Mere administrative practices, which by their nature are alterable at will by the administration and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State's obligations under Article 189 of the Treaty.
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Transport - Maritime transport- Cargo-sharing agreement between a Member State and a third country - Future agreement not authorised under Article 5 of Regulation No 4055/86 - Failure to fulfil obligations

(Council Regulation No 4055/86, Art. 5)

Summary

An agreement on maritime transport between a Member State and a third country is a future agreement on cargo-sharing within the meaning of Article 5(1) of Regulation No 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries if, under its relevant provisions, it entered into force only after 1 January 1987, the date of entry into force of that regulation, and contains arrangements concerning cargo-sharing between the contracting parties. In the absence of authorisation granted under Article 5(1) of Regulation No 4055/86, such arrangements are contrary to that provision.
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Freedom of movement for persons - Right of entry and residence for nationals of Member States - Obligation to hold a residence permit - Checks and penalties in the event of failure to comply - Permissible - Conditions

(EC Treaty, Arts. 48, 52 and 59; Council Directives 68/360, Art. 4, and 73/148, Art. 4)

Summary

Community law does not prevent a Member State from carrying out checks on compliance with the obligation to be able to produce a residence permit at all times, provided that it imposes the same obligation on its own nationals as regards their identity card.

In the event of failure to comply with that obligation, the national authorities are entitled to impose penalties comparable to those attaching to minor offences committed by their own nationals, such as those laid down in respect of failure to carry an identity card, provided that they do not impose a penalty so disproportionate that it becomes an obstacle to the free movement of workers.

It follows that a Member State which treats nationals of other Member States residing in its territory disproportionately differently, as regards the degree of fault and scale of fines, from its own nationals when they commit a comparable infringement of the obligation to carry a valid identity document, fails to fulfil its obligations under Articles 48, 52 and 59 of the Treaty, Article 4 of Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families and Article 4 of Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services.
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1 Actions for failure to fulfil obligations - Objective nature - Reason for the failure to fulfil obligations - No effect

(EC Treaty, Art. 169)

2 Acts of the institutions - Directives - Delays in implementation - Extension of time-limit which has proven insufficient - Procedure

(EC Treaty, Art. 189, para. 3)

3 Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification - Not permissible

(EC Treaty, Art. 169)

4 Actions for failure to fulfil obligations - Measures adopted by the Member State concerned after proceedings have been commenced - Not relevant

(EC Treaty, Art. 169)

Summary

1 The procedure laid down in Article 169 of the Treaty is based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation. When such a finding has been made it is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical difficulties encountered by it.

2 If the period allowed to a Member State for the implementation of a directive proves to be too short, the only means of action compatible with Community law available to the Member State concerned consists in taking the appropriate initiatives within the Community in order to obtain the necessary extension of the period by the competent Community institution.

3 A Member State may not plead provisions and 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.

4 In the context of an action for failure to fulfil obligations, the Court cannot take account of measures adopted by the Member State concerned after the commencement of the action in order to comply with those obligations.
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Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - Guarantee in respect of wages lost during the reference period - Existence of outstanding claims arising before the reference period - Payments of wages made by the employer during the reference period to be set in priority against claims arising before that period

(Council Directive 80/987, Art. 4(2))

Summary

On a proper construction of Article 4(2) of Directive 80/987 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, where a worker has, simultaneously, claims against his employer in respect of periods of employment before the reference period laid down in that provision and claims relating to the reference period itself, payments of wages made by the employer during the latter period must be set in priority against earlier claims.

It would be contrary to the social purpose of the directive, which is to guarantee all employees a minimum level of protection, to interpret Article 4(2) in such a way that a worker in that situation is not entitled to the guarantee in respect of wages which he has in fact lost during the reference period.
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Common Customs Tariff - Relief from import duties - Fuel on board motorised road vehicles - Standard tanks - Definition - Tanks permanently fixed by one of the manufacturer's dealers or by a coachbuilder - Not covered

(Council Regulation No 918/83, Art. 112(2)(c), as amended by Regulation No 1315/88)

Summary

Article 112(2)(c) of Regulation No 918/83 setting up a Community system of reliefs from customs duty, as amended by Regulation No 1315/88 which also amends Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, must be interpreted as meaning that the definition of `standard tanks' used therein does not apply to tanks fixed to containers equipped with a refrigeration system and intended for long-distance road haulage where those tanks have been permanently fixed by one of the manufacturer's dealers or by a coachbuilder in order to attain certain financial objectives.
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International agreements - EEC-Turkey Association Agreement - Association Council established by the EEC-Turkey Association Agreement - Decision concerning freedom of movement for workers - Access to employment for children of Turkish workers - Conditions - Legal employment or residence of one of the parents in the host Member State at the time of gaining access to the employment market - Not a condition

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 7, second para.)

Summary

The second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council must be interpreted to the effect that a Turkish national who is the child of a migrant Turkish worker, who has been authorised to enter a Member State for the purpose of pursuing a course of study and who, on completion of that training, applies for a residence permit in order to be able to take up an offer of employment made to him in the host Member State, is entitled to respond to any offer of employment in the host Member State after having completed a course of vocational training there, and consequently to be issued with a residence permit, when one of his parents has in the past been legally employed in that State for at least three years.

However, it is not required that the parent in question should still work or be resident in the Member State in question at the time when his child wishes to gain access to the employment market there.