CELEX: C2001/061/12
Language: en
Date: 2001-02-24 00:00:00
Title: 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

C 61/6                  EN                   Official Journal of the European Communities                                    24.2.2001
—    In holding that the jurisprudence characterising anti-             Does that requirement of the system of consumer protection
     dumping measures as legislative acts involving choices of          laid down by the directive that interpretation is to be in
     economic policy concerned cases ‘radically different’ from         conformity require a national court, when hearing an action
     the present case, and in thereby holding that a mere               for payment brought by a seller or supplier against a consumer
     infringement of Community law would suffice to give                with whom he has contracted, to set aside an exceptional
     rise to liability under Article 288 EC.                            procedural rule, such as that in Article L 311-37 of the
                                                                        Consumer Code, in so far as it prohibits the national court,
—    In holding that the October 1997 report prima facie                either on the application of the consumer or of its own
     suggested that the Respondent had complied with its                motion, from annulling any unfair clause which vitiates the
     undertaking and in holding therefore that;                         contract where the latter was made more than two years before
                                                                        the commencement of proceedings and in so far as it thereby
     a)     the Commission’s reaction in amending the report            permits the seller or supplier to rely in law on those clauses
            was disproportionate, and                                   and to base its action upon them?
     b)     the Commission had committed an error which                 (1) OJ L 95, 21.4.1993, p. 29.
            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.                                          Appeal brought on 3 January 2001 by Asia Motor France
                                                                        SA, Jean-Michel Cesbron and Monin Automobiles SA
—    In holding that the Commission unjustifiably delayed in            against the judgment delivered on 26 October 2000 by
     adopting the necessary measures to restore the Respon-             the Fifth Chamber of the Court of First Instance of the
     dent’s undertaking and consequently holding that the               European Communities in Case T-154/98 between Asia
     Commission should bear full responsibility for the                 Motor France SA, Jean-Michel Cesbron and Monin Auto-
     Respondent’s loss of profit as from the end of January             mobiles SA and the Commission of the European Com-
     1998.                                                                                           munities
                                                                                                 (Case C-1/01 P)
(1) OJ C 160, 5.6.1999, p. 21.
                                                                                                 (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-
Reference for a preliminary ruling by the Tribunal d’In-                ties on 3 January 2001 by Asia Motor France SA, Jean-Michel
stance, Vienne, by judgment of that court of 15 December                Cesbron and Monin Automobiles SA, represented by
2000, rectified by a judgment of 26 January 2001, in the                J-C. Fourgoux of the Brussels and Paris Bars, with an address
        case of Codifis SA against Jean Louis Fredout                   for service in Luxembourg at the Chambers of P. Schiltz, 4 Rue
                                                                        Béatrix de Bourbon.
                         (Case C-473/00)                                The appellants claim that the Court should:
                                                                        —     set aside the judgment of the Court of First Instance of
                          (2001/C 61/11)                                      26 October 2000(1);
Reference has been made to the Court of Justice of the                  —     annul the Commission’s decision of 14 July 1998, and
European Communities by judgment of the Tribunal d’Instance             —     order the Commission to pay the costs.
(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            Pleas in law and main arguments
case of Codifis SA v Jean Louis Fredout on the following
question:                                                               —     Infringement of fundamental rights: after dismissing the
                                                                              plea alleging breach of the requirement of a reasonable
                                                                              period [within which the administrative procedure must
Given that the protection under Council Directive 93/13/EEC                   be completed], necessary to ensure fair legal process,
of 5 April 1993 on unfair terms in consumer contracts (1)                     which constitutes a fundamental right, the Court of First
implies that a national court, applying provisions of national                Instance admitted that it was entitled to consider of its
law previous or subsequent to that directive, is to interpret                 own motion the question of infringement of essential
them so far as possible in the light of the wording and purpose               procedural requirements and of the procedural guarantees
of the latter;                                                                conferred by Community law, but decided not to do so.
 ---pagebreak--- 24.2.2001               EN                    Official Journal of the European Communities                                         C 61/7
—     Manifest error of fact and law, distortion, contradiction,         2.   Is the employees’ entitlement to the payment of early
      insufficient statement of reasons and infringement of                   superannuation benefits and lump sum compensation on
      Article 176 of the EC Treaty: the Court of First Instance               redundancy/in the interests of the efficiency of the
      quite simply obliterated the findings in its two earlier                service/on organisational change, a right to an old age,
      judgments (2) and even accepted, theoretically, the expla-              invalidity or survivors’ benefit within the meaning of
      nation offered by the Commission at the hearing that, by                Article 3.3 of the Directive?
      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-               3.   If and to the extent that the answer to question 2 is ‘no’,
      able’, a policy that finds no basis in any regulation or law            is there an obligation on the transferor arising from the
      authorising the exertion of irresistible pressure                       contract of employment, the employment relationship or
      accompanied by threats. That was a mere expedient. It                   the collective agreement within the meaning of Article
      was a distortion of a clear text, already correctly analysed            3.1 and/or 3.2 which transfers by reason of the transfer
      in the previous judgments, to find, in vague terms, to                  of the undertaking and renders the transferee liable to
      the contrary, that the Commission’s ‘explanation’ could                 pay the benefits to the employee upon dismissal?
      ‘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          4.   If the answers to questions 2 and 3 are ‘no’ and ‘yes’
      meaning of terms whose sense is had to misconstrue,                     respectively, may the employee, nonetheless, agree to
      such as ‘arrangement’, ‘quid pro quo’, undertaking, ‘reas-              forego his/her entitlement to early, payment of pension
      sessment of the system or commercial choice’.                           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
(1) In Case T-154/98, OJ C 358 of 21 November 1998, p. 22.                    to the same benefits and the same circumstances or at all,
(2) The judgments in Cases T-7/92 [1993] ECR II-669, and T-387/94             and he/she
    [1996] ECR II-961.
                                                                              (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
Reference for a preliminary ruling by the Employment                                accrued benefits from the transferor’s pension
Tribunal, West Croydon (United Kingdom), by order of                                scheme into the transferee’s pension scheme?
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
                                                                         5.   If so, what are the criteria by which the national
                                                                              court should decide whether, in such circumstances, the
                           (Case C-4/01)                                      employee has agreed?
                          (2001/C 61/13)
                                                                         6.   Are Articles 3.1 and/or 3.2 of the Directive to be
                                                                              interpreted as precluding the transferee from offering
Reference has been made to the Court of Justice of the                        transferred employees the option of taking early retire-
European Communities by an order of the Employment                            ment on the basis of early retirement benefits that are less
Tribunal, West Croydon (United Kingdom) of 5 January 2001,                    beneficial than those to which they are entitled as a
which was received at the Court Registry on 8 January 2001,                   consequence of the effect of the Directive?
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:                                              7.   Is the answer to the foregoing question affected if, when
                                                                              offering transferred employees the option of taking early
1.    Do rights which are contingent upon either dismissal or                 retirement on terms less beneficial than those to which
      premature retirement by agreement with the employer                     they are entitled under the Directive, the transferee states
      fall within the definition of ‘rights and obligations’ within           that no early retirement benefits will be available in
      the meaning of Article 3.1 of the Directive (1)?                        future?