Case C-1/01 P: Appeal brought on 3 January 2001 by Asia Motor France SA, Jean-Michel Cesbron and Monin Automobiles SA against the judgment delivered on 26 October 2000 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-154/98 between Asia Motor France SA, Jean-Michel Cesbron and Monin Automobiles SA and the Commission of the European Communities
Date: 2001-02-24
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), administrative procedure, import restriction, motor vehicle industry, unlawful agreement

C 61/6

EN

Official Journal of the European Communities

24.2.2001

— In holding that the jurisprudence characterising anti-
dumping measures as legislative acts involving choices of
economic policy concerned cases ‘radically different’ from
the present case, and in thereby holding that a mere
infringement of Community law would suffice to give
rise to liability under Article 288 EC.

— In holding that the October 1997 report prima facie
suggested that the Respondent had complied with its
undertaking and in holding therefore that;

a)

b)

the Commission’s reaction in amending the report
was disproportionate, and

the Commission had committed an error which
would not have been made had it exercised ordinary
care and diligence.

— In holding that the Respondent had shown reasonable
diligence in mitigating the extent of the damage it had
claimed to have suffered.

— In holding that the Commission unjustifiably delayed in
adopting the necessary measures to restore the Respon-
dent’s undertaking and consequently holding that the
Commission should bear
the
Respondent’s loss of profit as from the end of January
1998.

responsibility for

full

(1) OJ C 160, 5.6.1999, p. 21.

Reference for a preliminary ruling by the Tribunal d’In-
stance, Vienne, by judgment of that court of 15 December
2000, rectified by a judgment of 26 January 2001, in the
case of Codifis SA against Jean Louis Fredout

(Case C-473/00)

(2001/C 61/11)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal d’Instance
(District Court), Vienne, of 15 December 2000, received at the
Court Registry on 27 December 2000, and rectified by a
judgment of 26 January 2001, for a preliminary ruling in the
case of Codifis SA v Jean Louis Fredout on the following
question:

Given that the protection under Council Directive 93/13/EEC
of 5 April 1993 on unfair terms in consumer contracts (1)
implies that a national court, applying provisions of national
law previous or subsequent to that directive, is to interpret
them so far as possible in the light of the wording and purpose
of the latter;

Does that requirement of the system of consumer protection
laid down by the directive that interpretation is to be in
conformity require a national court, when hearing an action
for payment brought by a seller or supplier against a consumer
with whom he has contracted, to set aside an exceptional
procedural rule, such as that in Article L 311-37 of the
Consumer Code, in so far as it prohibits the national court,
either on the application of the consumer or of its own
motion, from annulling any unfair clause which vitiates the
contract where the latter was made more than two years before
the commencement of proceedings and in so far as it thereby
permits the seller or supplier to rely in law on those clauses
and to base its action upon them?

(1) OJ L 95, 21.4.1993, p. 29.

Appeal brought on 3 January 2001 by Asia Motor France
SA, Jean-Michel Cesbron and Monin Automobiles SA
against the judgment delivered on 26 October 2000 by
the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-154/98 between Asia
Motor France SA, Jean-Michel Cesbron and Monin Auto-
mobiles SA and the Commission of the European Com-
munities

(Case C-1/01 P)

(2001/C 61/12)

An appeal against the judgment delivered on 26 October 2000
by the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-154/98 between Asia Motor
France SA, Jean-Michel Cesbron and Monin Automobiles SA
and the Commission of
the European Communities was
brought before the Court of Justice of the European Communi-
ties on 3 January 2001 by Asia Motor France SA, Jean-Michel
Cesbron and Monin Automobiles SA,
represented by
J-C. Fourgoux of the Brussels and Paris Bars, with an address
for service in Luxembourg at the Chambers of P. Schiltz, 4 Rue
Béatrix de Bourbon.

The appellants claim that the Court should:

— set aside the judgment of the Court of First Instance of

26 October 2000(1);

— annul the Commission’s decision of 14 July 1998, and

— order the Commission to pay the costs.

Pleas in law and main arguments

— Infringement of fundamental rights: after dismissing the
plea alleging breach of the requirement of a reasonable
period [within which the administrative procedure must
be completed], necessary to ensure fair legal process,
which constitutes a fundamental right, the Court of First
Instance admitted that it was entitled to consider of its
own motion the question of infringement of essential
procedural requirements and of the procedural guarantees
conferred by Community law, but decided not to do so.

24.2.2001

EN

Official Journal of the European Communities

C 61/7

— Manifest error of fact and law, distortion, contradiction,
insufficient statement of reasons and infringement of
Article 176 of the EC Treaty: the Court of First Instance
quite simply obliterated the findings in its two earlier
judgments (2) and even accepted, theoretically, the expla-
nation offered by the Commission at the hearing that, by
referring in their letter of 1 July 1987 to a ‘quid pro quo’
consisting in their refusal to authorise other makes of
Japanese car, the French authorities simply ‘meant to
make the policy they [were implementing] more palat-
able’, a policy that finds no basis in any regulation or law
pressure
authorising
accompanied by threats. That was a mere expedient. It
was a distortion of a clear text, already correctly analysed
in the previous judgments, to find, in vague terms, to
the contrary, that the Commission’s ‘explanation’ could
‘reasonably be accepted’. It would not appear to matter
that, for this manifest misappraisal of the legal import of
the facts, the Court of First Instance had to distort the
meaning of terms whose sense is had to misconstrue,
such as ‘arrangement’, ‘quid pro quo’, undertaking, ‘reas-
sessment of the system or commercial choice’.

irresistible

exertion

the

of

(1) In Case T-154/98, OJ C 358 of 21 November 1998, p. 22.
(2) The judgments in Cases T-7/92 [1993] ECR II-669, and T-387/94

[1996] ECR II-961.

Reference for a preliminary ruling by the Employment
Tribunal, West Croydon (United Kingdom), by order of
that court of 5 January 2001, in the case of Ms S.G. Martin,
Mr R.K.A. Daby and Mr B.J. Willis against South Bank
University

(Case C-4/01)

(2001/C 61/13)

Reference has been made to the Court of Justice of the
European Communities by an order of
the Employment
Tribunal, West Croydon (United Kingdom) of 5 January 2001,
which was received at the Court Registry on 8 January 2001,
for a preliminary ruling in the case of Ms S.G. Martin, Mr
R.K.A. Daby and Mr B.J. Willis against South Bank University,
on the following questions:

1. Do rights which are contingent upon either dismissal or
premature retirement by agreement with the employer
fall within the definition of ‘rights and obligations’ within
the meaning of Article 3.1 of the Directive (1)?

2.

3.

4.

Is the employees’ entitlement to the payment of early
superannuation benefits and lump sum compensation on
the
redundancy/in the interests of
service/on organisational change, a right to an old age,
invalidity or survivors’ benefit within the meaning of
Article 3.3 of the Directive?

the efficiency of

If and to the extent that the answer to question 2 is ‘no’,
is there an obligation on the transferor arising from the
contract of employment, the employment relationship or
the collective agreement within the meaning of Article
3.1 and/or 3.2 which transfers by reason of the transfer
of the undertaking and renders the transferee liable to
pay the benefits to the employee upon dismissal?

If the answers to questions 2 and 3 are ‘no’ and ‘yes’
respectively, may the employee, nonetheless, agree to
forego his/her entitlement to early, payment of pension
and retirement lump sum and/or the annual allowance
and lump sum compensation in circumstances where the
transferee’s pension scheme does not entitle him or her
to the same benefits and the same circumstances or at all,
and he/she

(i)

becomes a member of
the transferee’s pension
scheme; makes contributions to it and/or has contri-
butions made to it on his/her behalf by the transferee
employer;

(ii) becomes a member of

the transferee’s pension
scheme, makes contributions to it and has contri-
butions made to it on his/her behalf by the transferee
employer and successfully applies to transfer his/her
accrued benefits
from the transferor’s pension
scheme into the transferee’s pension scheme?

5.

If so, what are the criteria by which the national
court should decide whether, in such circumstances, the
employee has agreed?

6. Are Articles 3.1 and/or 3.2 of

the Directive to be
interpreted as precluding the transferee from offering
transferred employees the option of taking early retire-
ment on the basis of early retirement benefits that are less
beneficial than those to which they are entitled as a
consequence of the effect of the Directive?

7.

Is the answer to the foregoing question affected if, when
offering transferred employees the option of taking early
retirement on terms less beneficial than those to which
they are entitled under the Directive, the transferee states
that no early retirement benefits will be available in
future?