Judgment of the Court (Second Chamber) of 11 October 2001 in Case C-77/99: Commission of the European Communities v Oder-Plan Architektur GmbH, NCC Deutsche Ban GmbH, Esbensen Consulting Engineers (Arbitration clause — Financial support for the energy sector — Thermie Programme — Non-performance of a contract — Termination — Right to repayment of an advance)
Date: 2002-01-19
Institutions: Court of Justice
Subjects: European Commission, appeal to the Court (EU), economic sanctions, redemption, termination of a contract, type of business

C 17/4

EN

Official Journal of the European Communities

19.1.2002

The direct effect which that provision must
therefore be
recognised as having means that Polish nationals relying on it
have the right to invoke it before the courts of the host Member
State, notwithstanding the fact that the authorities of that State
remain competent to apply to those nationals their own national
laws and regulations regarding entry, stay and establishment,
in accordance with Article 58(1) of that Agreement.

2.

The right of establishment, as defined by Article 44(3) of the
above Association Agreement, means that rights of entry and
the right of establishment, are
residence, as corollaries of
conferred on Polish nationals wishing to pursue activities of an
industrial or commercial character, activities of craftsmen, or
activities of the professions in a Member State. However, it
follows from Article 58(1) of that Agreement that those rights
of entry and residence are not absolute privileges, inasmuch as
their exercise may, in some circumstances, be limited by the
rules of the host Member State governing the entry, stay and
establishment of Polish nationals.

3. Articles 44(3) and 58(1) of the above Association Agreement,
read together, do not in principle preclude a system of prior
control which makes the issue by the competent immigration
authorities of leave to enter and remain subject to the condition
that the applicant must show that he genuinely intends to take
up an activity as a self-employed person without at the same
time entering into employment or having recourse to public
funds, and that he possesses, from the outset, sufficient financial
resources and has reasonable chances of success. Substantive
requirements such as those set out in paragraphs 217 and 219
of the United Kingdom Immigration Rules (House of Commons
Paper 395) have as their very purpose to enable the competent
authorities to carry out such checks and are appropriate for
achieving such a purpose.

4. Article 58(1) of the above Association Agreement must be
construed as meaning that the competent authorities of the host
Member State may reject an application made pursuant to
Article 44(3) of that Agreement on the sole ground that, when
that application was submitted, the Polish national was residing
illegally within the territory of that State because of false
representations made to those authorities for the purpose of
obtaining initial leave to enter that Member State on a different
basis or of non-compliance with an express condition attached
to that entry and relating to the authorised duration of his stay
in that Member State. Consequently, those authorities may
require that national to submit, in due and proper form, a new
application for establishment on the basis of that Agreement
by applying for an entry visa to the competent authorities in his
State of origin or, as the case may be, in another country,
provided that such measures do not have the effect of preventing
such a national from having his situation reviewed at a later
date when he submits that new application.

(1) OJ C 121 of 1.5.1999.

JUDGMENT OF THE COURT

(Second Chamber)

of 11 October 2001

in Case C-77/99: Commission of the European Communi-
ties v Oder-Plan Architektur GmbH, NCC Deutsche Ban
GmbH, Esbensen Consulting Engineers (1)

(Arbitration clause — Financial support for the energy
sector — Thermie Programme — Non-performance of a
contract — Termination — Right to repayment of an
advance)

(2002/C 17/05)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-77/99: Commission of the European Communities
(Agents: R.B. Wainwright and K. Schreyer, assisted by
M. Nu´ n˜ ez-Müller) v Oder-Plan Architektur GmbH, in liqui-
dation, established in Berlin (Germany), represented by its
liquidator, C. Schlote, NCC Deutsche Ban GmbH, formerly
NCC Siab Bau GmbH, established in Fürstenwalde (Germany),
represented by D. Stoecker, Rechtsanwalt, and Esbensen
Consulting Engineers, established in Virum (Denmark), rep-
resented by D. Stoecker — application by the Commission of
the European Communities under Article 181 of the EC Treaty
(now Article 238 EC) for repayment of an advance paid by the
Commission under the Thermie Programme referred to in
Article 1 of Council Regulation (EEC) No 2008/90 of 29 June
1990 concerning the promotion of energy technology in
Europe (Thermie programme)
(OJ 1990 L 185, p. 1) —
the Court
(Second Chamber), composed of: N. Colneric
(Rapporteur), President of the Chamber, R. Schintgen and
V. Skouris, Judges; S. Alber, Advocate General; H. von Holstein,
Deputy Registrar, for the Registrar, has given a judgment on
11 October 2001, in which it:

1.

By way of judgment by default, orders Oder-Plan Architektur
GmbH, jointly and severally with NCC Deutsche Bau GmbH
and Esbensen Consulting Engineers, to pay to the Commission
of the European Communities the sum of EUR 54 510, plus
interest of EUR 12 077.09 for the period from 1 January
1995 to 15 January 1999;

2. Orders NCC Deutsche Ban GmbH and Esbensen Consulting
Engineers, jointly and severally as between each other and with
Oder-Plan Architektur GmbH, to pay to the Commission of
the European Communities the sum of EUR 54 510, plus
interest of EUR 12 077.09 for the period from 1 January
1995 to 15 January 1999;

3. Dismisses the remainder of the application;

19.1.2002

EN

Official Journal of the European Communities

C 17/5

4. Orders Oder-Plan Architektur GmbH, NCC Deutsche Bau
GmbH and Esbensen Consulting Engineers, jointly and sever-
ally, to pay the costs.

(1) OJ C 160 of 5.6.1999.

JUDGMENT OF THE COURT

(Third Chamber)

of 22 November 2001

JUDGMENT OF THE COURT

(Sixth Chamber)

of 22 November 2001

in Case C-147/99: Italian Republic v Commission of the
European Communities (1)

(EAGGF — Clearance of accounts — Ineligible durum wheat
— Quantities missing from the stockpile — Withdrawal of
approval of undertakings packaging olive oil — Inadequate
management and checks of premiums for sheep and goats)

in Joined Cases C-541/99 and C-542/99 (references for
preliminary rulings from the Giudice di Pace di Viadana):
Cape Snc and Idealservice Srl (C-541/99) and between
Idealservice MN RE Sas and OMAI Srl (C-542/99) (1)

(Article 2(b) of Directive 93/13/EEC — Meaning of ‘con-
sumer’ — Undertaking concluding a standard contract with
another undertaking to acquire merchandise or services solely
for the benefit of its employees)

(2002/C 17/07)

(Language of the case: Italian)

(2002/C 17/06)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-147/99: Italian Republic (Agent: U. Leanza, assisted
by D. Del Gaizo) v Commission of the European Communities
(Agent: F.P. Ruggeri Laderchi, assisted by A. Dal Ferro) —
application for annulment of the part concerning the Italian
Republic of Commission Decision 1999/187/EC of 3 February
1999 on the clearance of the accounts presented by the
Member States in respect of the expenditure for 1995 of the
Guarantee Section of the European Agricultural Guidance and
Guarantee Fund (OJ 1999 L 61, p. 37) — the Court (Sixth
Chamber), composed of: F. Macken, President of the Chamber,
N. Colneric, C. Gulmann (Rapporteur), V. Skouris and
J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General;
R. Grass, Registrar, has given a judgment on 22 November
2001, in which it:

1. Dismisses the action;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 188 of 3.7.1999.

In Joined Cases C-541/99 and C-542/99: references to the
Court under Article 234 EC from the Giudice di Pace
(Magistrate), Viadana, (Italy) for preliminary rulings in the
proceedings pending before that court between Cape Snc and
Idealservice Srl (C-541/99) and between Idealservice MN RE
Sas and OMAI Srl (C-542/99) — on the interpretation of
Article 2(b) of Council Directive 93/13/EEC of 5 April 1993
on unfair terms in consumer contracts (OJ 1993 L 95, p. 29)
— the Court, composed of: F. Macken (Rapporteur), President
of the Chamber, C. Gulmann and J.-P. Puissochet, Judges;
J. Mischo, Advocate General; D. Louterman-Hubeau, Head of
Division, for the Registrar, has given a judgment on 22 Novem-
ber 2001, in which it has ruled:

The term ‘consumer’, as defined in Article 2(b) of Council Directive
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,
must be interpreted as referring solely to natural persons.

(1) OJ C 47 of 19.2.2000.