CELEX: C1998/340/06
Language: en
Date: 1998-11-07 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 24 September 1998 in Case C-35/97: Commission of the European Communities v. French Republic (Failure to fulfil obligations - Article 48 of the EC Treaty - Unemployment benefits - Award of supplementary retirement pension points - Conditions of dismissal - Article 7 of Regulation (EEC) No 1612/68 - Frontier workers)

7.11.98                EN                  Official Journal of the European Communities                                      C 340/3
2. A Member State whose authorities, in interpreting                       indicated in a declaration for release into free
     Articles 3(1) and 4(1) of the Second Directive 79/32/                 circulation, and where the levying of customs duties
     EEC, erroneously classified a product such as that at                 on products covered by the heading under which those
     issue in this case as a cigarette and did not suspend the             goods ought to have been classified was suspended at
     operation of the decision adopted, is not bound by                    the date on which that declaration was accepted but
     Community law to compensate the manufacturer for                      had been re-established when the error was detected,
     the damage sustained by the latter as a result of that                the customs authorities must not take account of that
     erroneous decision.                                                   suspension in order to recalculate the amount of the
                                                                           customs duties legally due on the date on which the
                                                                           declaration was accepted.
(1) OJ C 354 of 23.11.1996.
                                                                      2. When the Commission, after consultation with the
                                                                           Customs Code Committee, has delivered a decision
                                                                           addressed to a Member State holding that there was,
                                                                           in a specific case, no justification for granting
                                                                           remission of import duties pursuant to the provisions
               JUDGMENT OF THE COURT                                       of Council Regulation (EEC) No 1430/79 of 2 July
                        (Fifth Chamber)                                    1979 on the repayment or remission of import or
                                                                           export duties, and when that decision does not contain
                     of 24 September 1998                                  any legal or factual indication relating to the legal
                                                                           basis for effecting post-clearance recovery of the
in Case C-413/96 (reference for a preliminary ruling from
                                                                           import duties concerned under Regulation No 1697/
   the Hùjesteret): Skatteministeriet v. Sportgoods A/S (1)
                                                                           79, a national court may rule on the latter question,
(Customs duty Ð Constitution of a customs debt Ð Post-                     having recourse, if appropriate, to the procedure under
clearance recovery of import duties Ð Remission of                         Article 177 of the EC Treaty.
                         import duties)
                         (98/C 340/05)                                (1) OJ C 74 of 8.3.1997.
                (Language of the case: Danish)
  (Provisional translation; the definitive translation will be                       JUDGMENT OF THE COURT
          published in the European Court Reports)
                                                                                              (Fifth Chamber)
                                                                                          of 24 September 1998
In Case C-413/96: reference to the Court under Article 177
of the EC Treaty from the Hùjesteret (Danish Supreme                  in    Case    C-35/97: Commission of the             European
Court) for a preliminary ruling in the proceedings pending                          Communities v. French Republic (1)
before that court between Skatteministeriet and
Sportgoods A/S Ð on the interpretation of Article 2(1) of
                                                                      (Failure to fulfil obligations Ð Article 48 of the EC Treaty
Council Regulation (EEC) No 1697/79 of 24 July 1979 on
                                                                      Ð Unemployment benefits Ð Award of supplementary
                                                                      retirement pension points Ð Conditions of dismissal Ð
the post-clearance recovery of import duties or export
duties which have not been required of the person liable
                                                                      Article 7 of Regulation (EEC) No 1612/68 Ð Frontier
for payment on goods entered for a customs procedure
                                                                                                  workers)
involving the obligation to pay such duties (OJ L 197 of                                       (98/C 340/06)
3.8.1979, p. 1) and on the legal effect of a decision
delivered by the Commission following consultation with
the Customs Code Committee Ð the Court (Fifth                                         (Language of the case: French)
Chamber), composed of: C. Gulmann, President of the
Chamber, M. Wathelet, J. C. Moitinho de Almeida,
D. A. O. Edward (Rapporteur) and L. Sevón, Judges; S.                   (Provisional translation; the definitive translation will be
Alber, Advocate General; R. Grass, Registrar, has given a                       published in the European Court Reports)
judgment on 24 September 1998, in which it has ruled:
                                                                      In Case C-35/97: Commission of the European
1. Article 2(1) of Council Regulation (EEC) No 1697/79                Communities (Agents: Pieter Jan Kuyper and Pieter van
     of 24 July 1979 on the post-clearance recovery of                Nuffel) v. French Republic (Agents: Kareen Rispal-
     import duties or export duties which have not been               Bellanger and Claude Chavance) Ð application for a
     required of the person liable for payment on goods               declaration that, by excluding frontier workers residing in
     entered for a customs procedure involving the                    Belgium from qualifying for supplementary retirement
     obligation to pay such duties must be construed as               pension points after being placed in early retirement, the
     meaning that, where a post-clearance inspection has              French Republic has failed to fulfil its obligations under
     revealed an error in the tariff classification of goods          Article 48(2) of the EC Treaty and Article 7 of Regulation
 ---pagebreak--- C 340/4               EN                  Official Journal of the European Communities                                    7.11.98
(EEC) No 1612/68 of the Council of 15 October 1968 on                for the award of public service contracts (OJ L 209 of
freedom of movement for workers within the Community                 24.7.1992, p. 1) Ð the Court (Sixth Chamber), composed
(OJ L 257 of 19.10.1968, p. 2) Ð the Court (Fifth                    of: H. Ragnemalm, President of the Chamber, G. F.
Chamber), composed of: C. Gulmann, President of the                  Mancini, P. J. G. Kapteyn (Rapporteur), J. L. Murray and
Chamber, M. Wathelet, J. C. Moitinho de Almeida,                     K. M. Ioannou, Judges; N. Fennelly, Advocate General;
D. A. O. Edward (Rapporteur) and J.-P. Puissochet,                   H. A. Rühl, Principal Administrator, for the Registrar, has
Judges; S. Alber, Advocate General; L. Hewlett,                      given a judgment on 24 September 1998, in which it has
Administrator, for the Registrar, has given a judgment on            ruled:
24 September 1998, in which it:
                                                                     1. Neither Article 1(1) and (2), Article 2(1) nor any other
                                                                         provision of Council Directive 89/665/EEC of
1. declares that, by excluding frontier workers residing in              21 December 1989, on the coordination of the laws,
     Belgium from qualifying for supplementary retirement                regulations and administrative provisions relating to
     pension points after being placed in early retirement,              the application of review procedures to the award of
     the French Republic has failed to fulfil its obligations            public supply and public works contracts, may be
     under Article 48(2) of the EC Treaty and Article 7 of               interpreted as meaning that, if Council Directive 92/
     Regulation (EEC) No 1612/68 of the Council of                       50/EEC of 18 June 1992 relating to the coordination
     15 October 1968 on freedom of movement for                          of procedures for the award of public service contracts
     workers within the Community;                                       has not been transposed by the end of the period laid
                                                                         down for that purpose, the review bodies in the
                                                                         Member States with jurisdiction to review procedures,
2. orders the French Republic to pay the costs.                          for the award of public supply contracts and public
                                                                         works contracts, established under Article 2(8) of
                                                                         Directive 89/665/EEC, may also hear appeals
(1) OJ C 94 of 22.3.1997.                                                concerning procedures for the award of public service
                                                                         contracts. However, in order to observe the
                                                                         requirement that domestic law must be interpreted in
                                                                         conformity with Directive 92/50/EEC and the
                                                                         requirement that the rights of individuals must be
                                                                         protected effectively, the national court must
                                                                         determine whether the relevant provisions of its
              JUDGMENT OF THE COURT                                      domestic law allow recognition of a right for
                                                                         individuals to bring an appeal in relation to awards of
                       (Sixth Chamber)
                                                                         public service contracts. In circumstances such as
                    of 24 September 1998                                 those arising in the present case, the national court
                                                                         must determine in particular whether such a right of
in Case C-76/97 (reference for a preliminary ruling from                 appeal may be exercised before the same bodies as
the Bundesvergabeamt): Walter Tögel v. Niederöster-                      those established to hear appeals concerning the award
             reichische Gebietskrankenkasse (1)                          of public supply contracts and public works contracts.
(Public service contracts Ð Direct effect of a directive not
transposed into national law Ð Classification of services            2. Services consisting in the transport of injured and sick
                 for the transport of patients)                          persons with a nurse in attendance come within both
                                                                         Annex I A, Category No 2, and Annex I B, Category
                         (98/C 340/07)                                   No 25, to Directive 92/50/EEC, so that a contract for
                                                                         those services is covered by Article 10 of Directive 92/
                                                                         50/EEC.
               (Language of the case: German)
                                                                     3. The provisions of Titles I and II of Directive 92/50/
                                                                         EEC may be relied on directly by individuals before
                                                                         national courts. As regards the provisions of Titles III
  (Provisional translation; the definitive translation will be           to VI, these may also be relied on by an individual
         published in the European Court Reports)                        before a national court if it is clear from an individual
                                                                         examination of their wording that they are
                                                                         unconditional and sufficiently clear and precise.
In Case C-76/97: reference to the Court under Article 177
of the EC Treaty from the Bundesvergabeamt (Federal                  4. Community law does not require an awarding
Procurement Office) (Austria), for a preliminary ruling in               authority in a Member State to intervene, at the
the proceedings pending before that court between Walter                 request of an individual, in existing legal situations
Tögel and Niederösterreichische Gebietskrankenkasse Ð                    concluded for an indefinite period or for several years
on the interpretation of Council Directive 89/665/EEC of                 where those situations came into being before expiry
21 December 1989 on the coordination of the laws,                        of the period for transposition of Directive 92/50/
regulations and administrative provisions relating to the                EEC.
application of review procedures to the award of public
supply and public works contracts (OJ L 395 of                       (1) OJ C 108 of 5.4.1997.
30.12.1989, p. 33), and of Council Directive 92/50/EEC
of 18 June 1992 relating to the coordination of procedures