CELEX: C2002/017/05
Language: en
Date: 2002-01-19 00:00:00
Title: 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)

C 17/4                  EN                      Official Journal of the European Communities                                          19.1.2002
     The direct effect which that provision must therefore be                                JUDGMENT OF THE COURT
     recognised as having means that Polish nationals relying on it
     have the right to invoke it before the courts of the host Member
                                                                                                    (Second Chamber)
     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,                                 of 11 October 2001
     in accordance with Article 58(1) of that Agreement.
                                                                           in Case C-77/99: Commission of the European Communi-
2.   The right of establishment, as defined by Article 44(3) of the        ties v Oder-Plan Architektur GmbH, NCC Deutsche Ban
     above Association Agreement, means that rights of entry and                     GmbH, Esbensen Consulting Engineers (1)
     residence, as corollaries of the right of establishment, are
     conferred on Polish nationals wishing to pursue activities of an      (Arbitration clause — Financial support for the energy
     industrial or commercial character, activities of craftsmen, or       sector — Thermie Programme — Non-performance of a
     activities of the professions in a Member State. However, it          contract — Termination — Right to repayment of an
     follows from Article 58(1) of that Agreement that those rights                                       advance)
     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                                     (2002/C 17/05)
     establishment of Polish nationals.
                                                                                              (Language of the case: German)
3.   Articles 44(3) and 58(1) of the above Association Agreement,
     read together, do not in principle preclude a system of prior         (Provisional translation; the definitive translation will be published
     control which makes the issue by the competent immigration                                in the European Court Reports)
     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            In Case C-77/99: Commission of the European Communities
     funds, and that he possesses, from the outset, sufficient financial   (Agents: R.B. Wainwright and K. Schreyer, assisted by
     resources and has reasonable chances of success. Substantive          M. Núñez-Müller) v Oder-Plan Architektur GmbH, in liqui-
     requirements such as those set out in paragraphs 217 and 219          dation, established in Berlin (Germany), represented by its
     of the United Kingdom Immigration Rules (House of Commons             liquidator, C. Schlote, NCC Deutsche Ban GmbH, formerly
     Paper 395) have as their very purpose to enable the competent         NCC Siab Bau GmbH, established in Fürstenwalde (Germany),
     authorities to carry out such checks and are appropriate for          represented by D. Stoecker, Rechtsanwalt, and Esbensen
     achieving such a purpose.                                             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
4.   Article 58(1) of the above Association Agreement must be              (now Article 238 EC) for repayment of an advance paid by the
     construed as meaning that the competent authorities of the host       Commission under the Thermie Programme referred to in
     Member State may reject an application made pursuant to               Article 1 of Council Regulation (EEC) No 2008/90 of 29 June
     Article 44(3) of that Agreement on the sole ground that, when         1990 concerning the promotion of energy technology in
     that application was submitted, the Polish national was residing      Europe (Thermie programme) (OJ 1990 L 185, p. 1) —
     illegally within the territory of that State because of false         the Court (Second Chamber), composed of: N. Colneric
     representations made to those authorities for the purpose of          (Rapporteur), President of the Chamber, R. Schintgen and
     obtaining initial leave to enter that Member State on a different     V. Skouris, Judges; S. Alber, Advocate General; H. von Holstein,
     basis or of non-compliance with an express condition attached         Deputy Registrar, for the Registrar, has given a judgment on
     to that entry and relating to the authorised duration of his stay     11 October 2001, in which it:
     in that Member State. Consequently, those authorities may
     require that national to submit, in due and proper form, a new        1.    By way of judgment by default, orders Oder-Plan Architektur
     application for establishment on the basis of that Agreement                GmbH, jointly and severally with NCC Deutsche Bau GmbH
     by applying for an entry visa to the competent authorities in his           and Esbensen Consulting Engineers, to pay to the Commission
     State of origin or, as the case may be, in another country,                 of the European Communities the sum of EUR 54 510, plus
     provided that such measures do not have the effect of preventing            interest of EUR 12 077.09 for the period from 1 January
     such a national from having his situation reviewed at a later               1995 to 15 January 1999;
     date when he submits that new application.
                                                                           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
(1) OJ C 121 of 1.5.1999.                                                        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;
 ---pagebreak--- 19.1.2002                EN                      Official Journal of the European Communities                                             C 17/5
4.    Orders Oder-Plan Architektur GmbH, NCC Deutsche Bau                                    JUDGMENT OF THE COURT
      GmbH and Esbensen Consulting Engineers, jointly and sever-
      ally, to pay the costs.
                                                                                                     (Third Chamber)
( 1) OJ C 160 of 5.6.1999.
                                                                                                  of 22 November 2001
                                                                            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
                  JUDGMENT OF THE COURT
                                                                                Idealservice MN RE Sas and OMAI Srl (C-542/99) (1)
                          (Sixth Chamber)
                                                                            (Article 2(b) of Directive 93/13/EEC — Meaning of ‘con-
                       of 22 November 2001                                  sumer’ — Undertaking concluding a standard contract with
                                                                            another undertaking to acquire merchandise or services solely
                                                                                             for the benefit of its employees)
in Case C-147/99: Italian Republic v Commission of the
                    European Communities (1)
                                                                                                      (2002/C 17/07)
(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)                                        (Language of the case: Italian)
                            (2002/C 17/06)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                               in the European Court Reports)
                     (Language of the case: Italian)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                            In Joined Cases C-541/99 and C-542/99: references to the
                                                                            Court under Article 234 EC from the Giudice di Pace
In Case C-147/99: Italian Republic (Agent: U. Leanza, assisted              (Magistrate), Viadana, (Italy) for preliminary rulings in the
by D. Del Gaizo) v Commission of the European Communities                   proceedings pending before that court between Cape Snc and
(Agent: F.P. Ruggeri Laderchi, assisted by A. Dal Ferro) —                  Idealservice Srl (C-541/99) and between Idealservice MN RE
application for annulment of the part concerning the Italian                Sas and OMAI Srl (C-542/99) — on the interpretation of
Republic of Commission Decision 1999/187/EC of 3 February                   Article 2(b) of Council Directive 93/13/EEC of 5 April 1993
1999 on the clearance of the accounts presented by the                      on unfair terms in consumer contracts (OJ 1993 L 95, p. 29)
Member States in respect of the expenditure for 1995 of the                 — the Court, composed of: F. Macken (Rapporteur), President
Guarantee Section of the European Agricultural Guidance and                 of the Chamber, C. Gulmann and J.-P. Puissochet, Judges;
Guarantee Fund (OJ 1999 L 61, p. 37) — the Court (Sixth                     J. Mischo, Advocate General; D. Louterman-Hubeau, Head of
Chamber), composed of: F. Macken, President of the Chamber,                 Division, for the Registrar, has given a judgment on 22 Novem-
N. Colneric, C. Gulmann (Rapporteur), V. Skouris and                        ber 2001, in which it has ruled:
J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General;
R. Grass, Registrar, has given a judgment on 22 November
2001, in which it:                                                          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,
1.    Dismisses the action;                                                 must be interpreted as referring solely to natural persons.
2.    Orders the Italian Republic to pay the costs.
                                                                            (1) OJ C 47 of 19.2.2000.
(1) OJ C 188 of 3.7.1999.