ddrg/super_eurlex huggingface dataset:
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1 Procedure - Revision of a judgment - Application concerning an order dismissing an appeal as clearly unfounded - Whether admissible

(EC Statute of the Court of Justice, Art. 41, first para.; Rules of Procedure of the Court, Art. 119)

2 Procedure - Revision of a judgment - Conditions of admissibility of the application - New fact - Facts known before delivery of the contested judgment or devoid of relevance - Inadmissible

(EC Statute of the Court of Justice, Art. 41, first para.)

Summary

3 According to the first paragraph of Article 41 of the EC Statute of the Court of Justice, the parties may apply to the Court for revision of a judgment on discovery of a new and decisive factor. Even though that provision does not expressly provide that an order may also be the subject of an application for revision, an application for revision may be made in respect of such a ruling where it dismissed an appeal as clearly unfounded, pursuant to Article 119 of the Rules of Procedure, and where it therefore produces the same effects as would a judgment dismissing the appeal as unfounded.

4 The revision of a judgment, within the meaning of the first paragraph of Article 41 of the Statute of the Court of Justice, is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called in question on the basis of the findings of fact relied upon by the court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and which were unknown at that time to the court which delivered it as well as to the party applying for revision and which, had the court been able to take them into consideration, could have led it to a different determination of the proceedings.

Accordingly, an application for revision is inadmissible where it relies only on procedural rules of which the Court is well aware and matters relating to the substance of the case, when the Court, in its order forming the subject-matter of the application for revision, dealt only with matters concerning the admissibility of the action or with facts of no relevance whatever with regard to that order.
Case C-334/94





Commission of the European Communities

v

French Republic





«(Failure of a State to fulfil obligations – Registration of vessels – Right to fly the French flag – Nationality requirements for owner and crew – Failure to comply with the judgment in Case 167/73)»

Opinion of Advocate General Fennelly delivered on 16 November 1995

Judgment of the Court (Sixth Chamber), 7 March 1996

Summary of the Judgment

1.. Freedom of movement for persons – Freedom of establishment – Registration of a vessel in a Member State – Conditions relating to the nationality of the owners or the place in which they have their seat – Not permissible

(EC Treaty, Arts 6, 48, 52, 58 and 221; Commission Regulation No 1251/90, Art. 7; Council Directive 75/34, Art. 7)

2.. Member States – Obligations – Failure to fulfil – Retention of a national provision incompatible with Community law – Justification on the basis of administrative practice ensuring the application of the Treaty – Not permissible

3.. Actions against Member States for failure to fulfil obligations – Judgment of the Court finding the failure – Period allowed for compliance

(EC Treaty, Art. 171)

1.

2.

3.
JUDGMENT OF THE COURT (Third Chamber)

28 March 1996

((Anti-dumping duties on imports of electric motors))

In Case C-99/94,

and

THE COURT (Third Chamber),,

after considering the written observations submitted on behalf of:

─

─

─

having regard to the Report for the Hearing,

after hearing the oral observations of Robert Birkenbeul GmbH & Co. KG and the Commission at the hearing on 7 December 1995,

after hearing the Opinion of the Advocate General at the sitting on 30 January 1996,
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Transport — Road transport — Social legislation — Derogations — Vehicles used in refuse collection and disposal — Definition — (Council Regulation No 3820/85, Art. 4(6))

Summary

When it refers amongst the categories of transport excluded from the scope of its provisions to transport by " vehicles used in ... refuse collection and disposal" , Article 4(6) of Regulation No 3820/85 on the harmonization of certain social legislation relating to road transport must be interpreted as referring to vehicles used for the collection of waste of all kinds which is not subject to more specific rules and for the transportation of such waste over short distances, within the context of a general service in the public interest provided directly by the public authorities or by private undertakings under their control.
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Social policy ° European Social Fund ° Financial assistance for vocational training schemes ° Decision to reduce assistance initially granted ° Rights of the defence of the undertakings concerned ° Scope

Summary

Observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that any person against whom a decision adversely affecting his interests may be taken should be placed in a position in which he may effectively make known his views on the evidence against him upon which the contested decision is based.

That is so in the case of beneficiaries of assistance granted by the European Social Fund in respect of a vocational training scheme conducted in a Member State, when the Commission contemplates a reduction of the assistance initially granted because of the fact that it was not used in accordance with the conditions laid down by the decision of approval. The fact that the Member State concerned plays a central role in the system whereby the Fund is managed and that it is the addressee of any decision to reduce assistance does not rule out the establishment of a direct link between the Commission and the beneficiary who has been the subject of investigation by the Commission for the purpose of establishing any irregularities and who directly suffers the economic consequences of the reduction, since he incurs primary liability to repay the sums unduly paid.

Consequently, a decision to reduce assistance adopted when the beneficiary had not been heard by the Commission before the adoption of the decision infringes the beneficiary' s rights of the defence, irrespective of any practical difficulties for the Commission in consulting beneficiaries directly.
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1 Freedom to provide services - Restrictions - Whether permissible - Conditions

(EC Treaty, Art. 59)

2 Freedom to provide services - Judicial recovery of debts - Restrictions - Obligation to use the services of a lawyer - Justification on grounds of the general interest - Protection of recipients of services and proper administration of justice - Permissible

(EC Treaty, Art. 59)

Summary

3 A national rule preventing nationals of other Member States from engaging in the provision of services does not fall outside the prohibition laid down by Article 59 of the Treaty unless four conditions are fulfilled, namely that it must be applied in a non-discriminatory manner, must be justified by imperative requirements in the general interest, must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it, and restrictions justified by overriding reasons in the general interest are permissible only if that interest is not already safeguarded by the rules to which the provider of the service is subject in the Member State where he is established.

4 Article 59 of the Treaty does not preclude a national rule which prohibits an undertaking established in another Member State from securing judicial recovery of debts owed to others on the ground that the exercise of that activity in a professional capacity is reserved to the legal profession. Such a prohibition is not discriminatory, since it applies without distinction to national providers of services and to those of other Member States, is intended to protect recipients of services against the harm which they could suffer as a result of using the services of persons not possessing the necessary professional or personal qualifications and to safeguard the proper administration of justice, is capable of achieving that objective on account of the guarantee of competence attaching to the services of a lawyer, and cannot be described as disproportionate, even if it is not applied in other Member States, since it is for the Member States to decide the extent to which activities are to be reserved to the legal profession.
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1 Social policy - Men and women - Substantive scope of Directive 79/7 - Early retirement benefits granted on entry into early retirement - Included - Worker's entry into early retirement by reason of the declared state of critical difficulty of the employer undertaking - Not relevant

(Council Directive 79/7, Art. 3(1))

2 Social policy - Equal treatment for men and women in matters of social security - Directive 79/7 - Derogation permitted with regard to the consequences that may result, for other benefits, from the existence of different pensionable ages - Scope - Limitation solely to discrimination necessarily and objectively linked to the difference in pensionable ages - Discrimination with regard to the granting of credit for supplemental retirement contributions in the event of entry into early retirement - Permissible

(Council Directive 79/7, Art. 7(1)(a))

Summary

3 Early-retirement benefits resulting from entry into early retirement are directly and effectively linked to protection against the risk of old age, as referred to in Article 3(1) of Directive 79/7, and therefore come within the scope of that directive. The mere fact that early retirement is the direct result of the critical situation facing the undertaking within which the worker in question was last employed cannot be regarded as meaning that such benefits are equivalent to benefits linked to dismissal, since they are directly governed by national legislation and are compulsory for certain general categories of workers.

4 Where, pursuant to Article 7(1)(a) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, a Member State has set pensionable ages which differ according to sex, that provision also allows it to provide that employees of an undertaking declared to be in critical difficulty may be credited with a maximum of five years' supplemental retirement contributions starting from their entry into early retirement until the date on which they reach the age at which they are entitled to a retirement pension, that is to say 55 years in the case of women and 60 years in the case of men, since the difference relating to sex in the method of calculating early-retirement benefits is objectively and necessarily linked to the setting of pensionable ages which differ for men and women.

That discrimination, being objectively linked to the setting of pensionable ages which differ for men and women, within an early-retirement scheme which avoids penalizing the worker who ceases working before reaching the statutory pensionable age, by ensuring that that worker will benefit from notional contributions in respect of the period by which he falls short of reaching that statutory pensionable age, is a feature of the linkage between the retirement-pensions scheme and the early-retirement scheme in question and is necessary in order to preserve that linkage, since its removal might give rise to other forms of discrimination.
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Community law - Direct effect - National charges incompatible with Community law - Repayment - Refusal - Conditions - Entire charge passed on leading to unjust enrichment of the trader - Existence of a legal obligation for the trader to pass on the charge to purchasers - Effect - No presumption that the entire charge has been passed on - Consideration of damage caused by the charge even though it has been passed on

Summary

A Member State may object to repayment to the trader of a national charge levied in breach of Community law only where it is established that the charge has been borne in its entirety by someone other than the trader and that reimbursement to the trader would amount to his unjust enrichment. It is for the national courts to determine, in the light of the facts in each case, whether those conditions have been satisfied. If the charge has been passed on only in part, it is for the national authorities to reimburse to the trader the sum not passed on. The fact that a legal obligation exists to incorporate the charge in the cost price does not mean that it can be assumed that the entire charge has been passed on, even when failure to comply with that obligation would involve a penalty.

Where, although the charge has been passed on to purchasers, the rules of domestic law permit traders to allege that they have been caused damage by the illegal levying of the charge, to the total or partial exclusion of any unjust enrichment, it is for the national court to draw the appropriate inferences. Such damage could be caused by, inter alia, the fact that the unlawful charge by increasing the price of the imported goods has reduced sales and thus profits.
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1 Competition - Transport - Competition rules - Transport by rail - Regulation No 1017/68 - Scope - Clause inserted in agreements of an association of railway companies, prohibiting accredited travel agents from favouring means of transport in competition with rail - Whether included

(Council Regulations Nos 17, 141 and 1017/68)

2 Appeals - Pleas in law - Plea against a ground of the judgment not necessary to support the operative part - Plea inoperative

Summary

3 Regulation No 1017/68 applying rules of competition to transport by rail, road and inland waterway applies inter alia, in accordance with Article 1 thereof, to agreements which have as their object or effect the fixing of transport rates or the limitation or control of the supply of transport. Its application depends upon the nature of the agreements in question, and not upon the prior identification of the market on which those agreements produce their effects.

In that respect, a clause inserted in agreements of an association of railway companies prohibiting accredited travel agents from favouring, in their advertising, proposals or advice to the public, means of transport in competition with rail falls within the transport sector and not under Regulation No 17. Indeed, it was the whole of the transport sector which was removed from the scope of the latter regulation by Regulation No 141, which was subsequently replaced by three sectoral regulations, including Regulation No 1017/68 relating to land, and thus to rail, transport.

In the first place, such a clause is intended to produce effects, if not its principal effects, in the land transport sector, since it imposes upon accredited travel agents a neutrality deemed to be favourable to the supply of rail transport. Secondly, it forms part of a series of decisions by an association of undertakings the essential clauses of which fall within the scope of Regulation No 1017/68.

4 On an appeal, a plea that is directed against a supererogatory ground of a judgment of the Court of First Instance, the operative part of which is already sufficiently supported on other legal grounds, must be dismissed.
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International agreements - EEC-Turkey Association Agreement - Freedom of movement for persons - Workers - Rights of Turkish nationals - Condition concerning prior legal employment - Definition - Employment under a residence permit obtained fraudulently - Excluded

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 6(1))

Summary

Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council must be interpreted as meaning that a Turkish worker does not satisfy the condition of having been in legal employment, within the meaning of that provision, in the host Member State, where he has been employed there under a residence permit which was issued to him only as a result of fraudulent conduct in respect of which he has been convicted.
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Common Customs Tariff - Tariff headings - Echinacea purpurea extract-based drops - Product for therapeutic and prophylactic use - Classification under heading 3004 of the Combined Nomenclature

Summary

The Common Customs Tariff is to be interpreted as meaning that Echinacea purpurea extract-based drops should be classified under heading 3004. The curative or prophylactic properties of that product as well as the way in which it is packaged, dispensed and marketed are in themselves such as to cause it to be regarded as a product possessing the characteristic properties of a medicament. In the Member States in which it is marketed the product in question is, moreover, authorized to be put on the market as a medicament or, at the very least, has been the subject of an application for authorization to that end. Furthermore, however great the alcohol content of the product in question it does not alter its nature, since the alcohol acts as an adjuvant, preservative and vehicle for that product.
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Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption of supplies of goods used wholly for an exempted activity or excluded from the right of deduction - Absence - Not permissible

(Council Directive 77/388, Art. 13B(c))

Summary

A Member State which enacts and maintains in force legislation which does not exempt from VAT supplies of goods used wholly for an exempted activity when those goods have not given rise to the right of deduction fails to fulfil its obligations under Article 13B(c) of the Sixth Directive 77/388/EEC on the harmonization of the laws of the Member States relating to turnover taxes. Even if the amount of VAT due in the event of double taxation may in fact be insignificant, that cannot absolve the Member State from properly implementing Article 13B(c) of the Sixth Directive whose very purpose is to avoid double taxation contrary to the principle of fiscal neutrality inherent in the common system of VAT.

A Member State whose legislation does not exempt from VAT supplies of goods excluded from the right of deduction in accordance with Article 17(6) of the Sixth Directive likewise fails to fulfil its obligations under Article 13B(c) thereof, even if that legislation treats a transaction which is to be exempted as one which falls outside the scope of VAT. The correct and straightforward application of exemptions required by Article 13B(c) precludes a transposition of the Sixth Directive which does not have the same effects as an exemption, in particular when the calculation of the deductible proportion and, therefore, the amount of VAT which a taxable person may deduct differ according to whether the supplies of goods in issue are rightly exempted or fall outside the sphere of application of VAT.
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Approximation of laws - Trade marks - Directive 89/104 - Registration of a new trade mark - Existence of identical or similar goods bearing a similar trade mark - Likelihood of confusion with the earlier trade mark - Definition

(Council Directive 89/104, Art. 4(1)(b))

Summary

The criterion of 'likelihood of confusion which includes the likelihood of association with the earlier mark' contained in Article 4(1)(b) of First Directive 89/104 to approximate the laws of the Member States relating to trade marks is to be interpreted as meaning that the mere association which the public might make between two trade marks as a result of their analogous semantic content is not in itself a sufficient ground for concluding that there is a likelihood of confusion within the meaning of that provision. The concept of likelihood of association is not an alternative to that of likelihood of confusion, but serves to define its scope.

The likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case. That global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The wording of Article 4(1)(b) of the Directive - '... there exists a likelihood of confusion on the part of the public ...' - shows that the perception of marks in the mind of the average consumer of the type of goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.

The more distinctive the earlier mark, the greater will be the likelihood of confusion. It is therefore not impossible that the conceptual similarity resulting from the fact that two marks use images with analogous semantic content may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public. That is not the case where the earlier mark is not especially well known to the public and consists of an image with little imaginative content.
Case C-353/95 P

Tiercé Ladbroke SA

v

Commission of the European Communities

‛Competition — State aid — Levy on bets taken on horse-races — Transfer of resources to an undertaking established in another Member State’

Opinion of Advocate General Cosmas delivered on 13 May 1997 I-7009

Judgment of the Court, 9 December 1997 I-7026

Summary of the Judgment

State aid — Definition — Financial conditions, determined by the public authorities, governing the assistance given in collecting bets by the body operating betting on horse-races in one Member State to the equivalent body in another Member State — No advantage for the beneficiary — Excluded

(EC Treaty, Art. 92(1))

A measure cannot be classified as State aid within the meaning of Article 92(1) of the Treaty if it procures no advantage for its supposed beneficiary.

Since bets on Belgian races are not identical to bets on French races, the existence of an advantage for the purposes of Article 92(1) of the Treaty cannot be deduced automatically from the difference of treatment to which they are subject.

In totalizator betting the stakes constitute a common pool which, after various levies, is distributed amongst the winners equally, whatever the origin of the bets. The share of the stakes paid out to the winners thus cannot vary according to the State in which the bets were placed. The proper functioning of such a system can therefore be ensured only if the rate of any levies which may be imposed on the bets laid on a horserace is that of the State in which the race is run.

Furthermore, where the system of statutory and fiscal retentions on bets on horseraces organized in one Member State was adopted in the light of the specific regulatory and economic conditions prevailing with regard to horseracing and totalizator betting in that State, there can be no requirement to transpose that system to totalizator betting on horseraces run in another Member State, which are organized under different regulatory and economic conditions.