larimo/cjeu-paragraph-retrieval huggingface dataset:
Volker Huber v Hauptzollamt Frankfurt am Main-Flughafen.
Date: 1988-12-14
16 Heading 99.02 of the Common Customs Tariff provides for an exemption from customs duties for the goods referred to therein with the evident intention of giving favourable treatment to artistic production .
17 Since a lithograph is always a reproduction of an original design executed by hand by the artist, its artistic nature can only be assessed in relation to the original . Once the design has been made by the artist on the stone or the plate without the assistance of a mechanical or photomechanical process it is irrelevant whether the technique used to transfer the design onto the surface to be printed is manual or mechanical since it has no influence on the artistic nature of the work .
18 If Note 2 of Chapter 99 of the Common Customs Tariff is interpreted by reference to the objective of tariff Heading 99.02, the exclusion of mechanical or photomechanical processes can only relate to the making of the original plate from which the impressions are produced .
Irish Cement Limited v Commission of the European Communities.
Date: 1988-12-15
16 In those circumstances and without its being necessary to consider whether the decision of 14 July 1986 is of direct and individual concern to the applicant, it must be held that that decision merely confirmed the decision of 14 May 1985 and that the action brought against it is inadmissible .
Francois Vainker v European Parliament.
Date: 1989-01-17
7 It should be noted that, by virtue of Article 91(1 ) of the Staff Regulations, the Court has jurisdiction in any dispute regarding the legality of an act adversely affecting a person to whom the Staff Regulations apply . According to Article 90(2 ) of the Staff Regulations an act adversely affecting the applicant consists either in a decision taken by the appointing authority or in the appointing authority' s failure to adopt a measure prescribed by the Staff Regulations . Article 91(2 ) of the Staff Regulations provides that an appeal to the Court shall lie only if the official has previously submitted a complaint to the appointing authority and if the complaint has been rejected by express or implied decision .
8 The administrative complaint and its rejection, whether express or implied, by the appointing authority thus constitute an integral part of a complex procedure . Consequently, the action before the Court, even if formally directed against the rejection of the official' s complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted .
9 The action must therefore be considered to be directed against the three decisions of the Secretary-General of the European Parliament dated 30 October 1986 promoting nine officials from grade A 5 to grade A 4 in the career bracket of Principal Administrator .
EMI Electrola GmbH v Patricia Im- und Export and others.
Date: 1989-01-24
8 The purpose of Articles 30 and 36 is therefore to reconcile the requirements of the free movement of goods with due respect for the legitimate exercise of exclusive rights in literary and artistic property . This implies, in particular, that any abusive exercise of those rights that is of such a nature as to maintain or create artificial barriers within the Common Market should not be given protection .
11 In that regard, it should be noted that in the present state of Community law, which is characterized by a lack of harmonization or approximation of legislation governing the protection of literary and artistic property, it is for the national legislatures to determine the conditions and detailed rules for such protection .
Jean Koutchoumoff v Commission of the European Communities.
Date: 1989-01-26
7 However, under Articles 90 and 91 of the Staff Regulations of Officials of the European Communities, an official may submit an appeal to the Court against a decision adversely affecting him taken by the appointing authority only after he has first submitted a complaint to that authority and that complaint has been rejected by an express or implied decision . Under the system laid down in the Staff Regulations the official must thus submit a complaint against the decision which he is contesting and then appeal to the Court against the decision rejecting his complaint . When those conditions are met, the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both ( judgment of 19 January 1984 in Case 260/80 Andersen v Council (( 1984 )) ECR 177, in particular at paragraphs 3 and 4 ), provided, however, that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations, as in this case they were . The first objection raised by the Commission must therefore be dismissed .
10 With regard to the second point the Court has consistently held that an official may not submit to the Court conclusions with a subject-matter other than those raised in the complaint or put forward heads of claim based on matters other than those relied on in the complaint . The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint but must be closely linked to it ( judgment of 20 May 1987 in Case 242/85 Geist v Commission (( 1987 )) ECR 2181 ). It follows that although Articles 90 and 91 of the Staff Regulations are designed to permit the amicable settlement of disputes which have arisen between officials and the administration, it is not the purpose of those provisions to bind strictly and absolutely the contentious stage of the proceedings, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint ( judgment of 7 May 1986 in Case 52/85 Rihoux and Others v Commission (( 1986 )) ECR 1555 ). That is the case particularly when, as here, the applicant requested in his complaint the annulment of a decision adversely affecting him, since such a request may, depending on the circumstances, imply a request for compensation for damage which may have been caused to the applicant by that decision . The objection of inadmissibility raised by the Commission in this respect against Mr Koutchoumoff' s action must therefore also be dismissed .
Commission of the European Communities v Federal Republic of Germany.
Date: 1989-02-02
8 Consequently, the obligation to recover the aid imposed by the decision is definitive . The Court has consistently held, in particular in its judgment of 15 January 1986 in Case 52/84 Commission v Belgium (( 1986 )) ECR 89, that in such circumstances the only defence left to a Member State in opposing an application for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it to implement the decision properly .
9 It must be borne in mind that in the judgment in Case 52/84, cited above, the Court emphasized that the fact that the only defence which a Member State to which a decision has been addressed can raise in legal proceedings such as these is that implementation of the decision is absolutely impossible does not prevent that State - if, in giving effect to the decision, it encounters unforeseen and unforeseeable difficulties or perceives consequences overlooked by the Commission - from submitting those problems for consideration by the Commission, together with proposals for suitable amendments to the decision in question . In such a case the Commission and the Member State concerned must respect the principle underlying Article 5 of the Treaty, which imposes a duty of genuine cooperation on the Member States and the Community institutions, and must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions, and in particular the provisions on aid .
10 In the present case, the German Government merely informed the Commission of the political and legal difficulties involved in implementing the decision, without taking any step whatsoever to recover the aid from the undertaking in question and without proposing to the Commission any arrangements for implementing the decision which would have enabled those difficulties to be overcome .
12 It must be added that, in so far as the procedure laid down by national law is applicable to the recovery of an illegal aid, the relevant provisions of national law must be applied in such a way that the recovery required by Community law is not rendered practically impossible and the interests of the Community are taken fully into consideration in the application of a provision which, like that relied upon by the German Government, requires the various interests involved to be weighed up before a defective administrative measure is withdrawn ( see in that connection the judgment in Joined Cases 205 to 215/82 Deutsche Milchkontor v Germany (( 1983 )) ECR 2633 ).
Commission of the European Communities v Federal Republic of Germany.
Date: 1989-02-02
21 That argument cannot be accepted either . As the Court stated in its judgments in Cases 216/84 and 407/85, cited above, once the Community has established a common market organization in a particular sector, the Member States must refrain from taking any unilateral measure, even if that measure is likely to support the common policy .
22 It is also clear from those judgments that, even if they support a common policy of the Community, national measures may not conflict with one of the fundamental principles of the Community - in this case that of the free movement of goods - unless they are justified by reasons recognized by Community law . As found above, this is not the position with the provisions at issue in the present case .
Star Fruit Company SA v Commission of the European Communities.
Date: 1989-02-14
10 In so far as it is based on the third paragraph of Article 175 of the Treaty, the purpose of the application is to obtain a declaration that in not commencing against the French Republic proceedings to establish its breach of obligations the Commission infringed the Treaty by failing to take a decision .
11 However, it is clear from the scheme of Article 169 of the Treaty that the Commission is not bound to commence the proceedings provided for in that provision but in this regard has a discretion which excludes the right for individuals to require that institution to adopt a specific position .
12 It is only if it considers that the Member State in question has failed to fulfil one of its obligations that the Commission delivers a reasoned opinion . Furthermore, in the event that the State does not comply with the opinion within the period allowed, the institution has in any event the right, but not the duty, to apply to the Court of Justice for a declaration that the alleged breach of obligations has occurred .
13 It must also be observed that in requesting the Commission to commence proceedings pursuant to Article 169 the applicant is in fact seeking the adoption of acts which are not of direct and individual concern to it within the meaning of the second paragraph of Article 173 and which it could not therefore challenge by means of an action for annulment in any event .
14 Consequently, the applicant cannot be entitled to raise the objection that the Commission failed to commence proceedings against the French Republic pursuant to Article 169 of the Treaty .
Giancarlo Bossi v Commission of the European Communities.
Date: 1989-02-14
31 In this respect the Court has held that an official may not, by means of a claim for compensation, circumvent the inadmissibility of an application which concerns the same act and has the same financial end in view ( judgment of 15 December 1966 in Case 59/65 Schreckenberg v Commission (( 1966 )) ECR 543 ). The Court has also held that the inadmissibility of an action for annulment entails the inadmissibility of a claim for damages with which it is closely connected ( judgment of 12 December 1967 in Case 4/67 Muller ( née Collignon ) v Commission (( 1967 )) ECR 365 ). The Court has further ruled that an official who has failed to contest in due time a decision of the appointing authority adversely affecting him may not rely on the alleged unlawfulness of that decision in an action for damages ( judgment of 7 October 1987 in Case 401/85 Schina v Commission (( 1987 )) ECR 3911 ).
32 It follows from the foregoing that an official may not, by means of an action for damages, seek to obtain the same result as he would have obtained had he been successful in an action for annulment which he failed to commence in due time .
33 In this case the applicant is seeking, in respect of each year as from the promotions to Grade B 1 decided in 1987 and until he is promoted to Grade B 1, compensation for material damage attributable to his not being promoted and consisting in the difference between the salary for Grade B 1 and that attaching to his present grade and to the loss of seniority in step in Grade B 1 .
34 If these claims were allowed the applicant would obtain exactly the same result as he would have obtained from promotion to Grade B 1 in the 1987 financial year . However, the applicant did not challenge in due time the 1987 promotion decisions in order to show that he was unlawfully passed over .
35 It follows from the foregoing that the claims for damages as compensation for the material harm allegedly suffered by the applicant by reason of his not being promoted from Grade B 2 to Grade B 1 in 1987 must be dismissed as inadmissible .
Six Constructions Ltd v Paul Humbert.
Date: 1989-02-15
10 According to the Court' s case-law, as the national court rightly pointed out, the obligation to be taken into consideration for the purposes of applying Article 5(1 ) of the Convention to contracts of employment is the obligation which characterizes such a contract, in particular, the obligation to carry out the agreed work ( judgments of 26 May 1982 in Case 133/81 Ivenel v Schwab (( 1982 )) ECR 1891, and of 15 January 1987 in Case 266/85 Shenavai v Kreischer (( 1987 )) ECR 239 ). In that regard, the Court based its decision on the finding that contracts of employment, and more generally contracts for the performance of work other than work on a self-employed basis differ from other contracts by virtue of certain particularities inasmuch as they create a lasting bond which brings the worker to some extent within the organizational framework of the business of the undertaking or employer and they are linked to the place where the activities are pursued, which determines the application of mandatory rules and collective agreements .
20 Although there are indeed some disadvantages in the alternative jurisdiction envisaged by the Convention in contract matters being precluded by the manner in which the parties to the contract have agreed that it is to be performed, it should be observed that the plaintiff is always entitled to bring his action before the courts of the place of the defendant' s domicile in accordance with Article 2 of the Convention, which thereby provides a certain and reliable criterion .
Commission of the European Communities v Italian Republic.
Date: 1989-02-21
2 Article 2 of the Sixth Directive defines the transactions which are to be subject to value-added tax as "the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such" and "the importation of goods ". Title X of the directive provides for exemptions for certain categories of such transactions .
10 In so far as an exemption of the type in question is not provided for in Title X, it constitutes a derogation from the general rule set out in Article 2 of the directive . Such a derogation may not be decided upon unilaterally by a Member State . By its decisions, the Council authorized the derogation in question only temporarily, and deliberately prescribed a specific date at which the authorization was to come to an end . Consequently, by extending the exemption beyond that date without the authorization of the Council, the Italian Republic infringed Article 2 of the directive .
Commission of the European Communities v Italian Republic.
Date: 1989-02-22
12 It must also be borne in mind that, as the Court has consistently held ( see in particular the judgment of 20 March 1986 in Case 303/84 Commission v Federal Republic of Germany (( 1986 )) ECR 1171 ), that the default interest provided for by Article 11 of the regulation is payable in respect of "any delay", regardless of the reason for the delay in making the entry in the Commission' s account .
Commission of the European Communities v French Republic and United Kingdom of Great Britain and Northern Ireland.
Date: 1989-02-22
22 Furthermore, it must be pointed out that, according to the case-law of the Court ( see the judgment of 9 July 1981 in Case 169/80 Administration des douanes v Gondrand frères (( 1981 )) ECR 1931 ), the principle of legal certainty requires that rules imposing charges on the taxpayer be clear and precise so that he may know without ambiguity what are his rights and obligations and may take steps accordingly .
Erik van der Stijl and Geoffrey Cullington v Commission of the European Communities.
Date: 1989-02-28
11 It must be recognized that the institutions have a wide discretion in their choice of the most appropriate means for meeting their personnel requirements . However, without its being necessary to inquire whether in other circumstances the institutions could take different courses, it must be pointed out that in the case of posts involving the exercise of a power to take decisions the institutions must follow one of the legal procedures which are laid down limitatively in the Staff Regulations or in the Conditions of Employment of Other Servants of the European Communities .
18 Those arguments need not be addressed . As the Court held in its judgment of 25 November 1976 in Case 30/76 Kuester v Parliament (( 1976 )) ECR 1719, paragraph 8, those to whom a judgment of the Court annulling an act of an institution is addressed are directly concerned by the way in which the institution seeks to comply with the judgment . Since the action is directed against an act which was adopted as a result of the judgment of 7 October 1985, cited above, it must be held to be admissible, even if the contested act has in the mean time exhausted its effects .
B - The substance
22 In this regard it must be stated that in its judgment of 7 October 1985 the Court did not rule on the question whether Mr Math had the necessary qualifications for the contested post . It cannot, therefore, be disputed that the Commission was entitled to engage him as a member of the temporary staff in order to fill that post .
24 The second submission is that the contested decision constitutes a misuse of procedure and a misuse of powers .
51 The Court held in its judgment of 30 October 1974 in Case 188/73 Grassi v Council (( 1974 )) ECR 1099, paragraph 38 that, though the appointing authority has wide discretion in comparing the candidates' merits, it must exercise it within the self-imposed limits contained in the Notice of Vacancy . In paragraph 43 of the same judgment the Court held that if, after the event, the appointing authority found that the conditions of eligibility in the Notice of Vacancy were more exacting than the needs of the service demanded, it was entitled to reopen the procedure after withdrawing the original Notice of Vacancy and putting an amended one in its place .
52 Even though those principles were enunciated with regard to an internal promotion procedure, they are to be applied all the more strictly where the correspondence between a notice of vacancy and a notice of competition is concerned . Any other interpretation would deprive Article 29 of the Staff Regulations of its effect, that provision requiring the institutions to consider whether a post can be filled internally before they organize an open competition . If it were open to the institutions to change the conditions of participation from one stage of the procedure to the next, in particular by making them less strict, they would be at liberty to organize external recruitment procedures without having to consider internal candidates .
Cargill BV v Produktschap voor Margarine, Vetten en Oliën.
Date: 1989-02-28
21 It must be emphasized that the invalidity of the regulation which suspended the advance fixing implies that Cargill BV is entitled to be placed in the same situation as that which would have obtained if the advance fixing had not been suspended . As regards Commission Regulation No 735/85 which, according to the parties, contains a material error, it must be deemed to be valid until such time as it is declared invalid . The question of the validity of the latter regulation has not been raised in these proceedings .
Heinz Schumacher v Hauptzollamt Frankfurt am Main-Ost.
Date: 1989-03-07
15 In the second place, as the Court has already had occasion to point out, Directive 65/65, as amended by Council Directives 75/319 of 20 March 1975 ( Official Journal 1975, L 147, p . 13 ), 83/570 of 20 October 1983 ( Official Journal 1983, L 332, p . 1 ) and 87/21 of 22 December 1986 ( Official Journal 1987, L 15, p . 36 ), is intended only to achieve progressive harmonization of the national legislation on the manufacture and marketing of proprietary medicinal products . As Community law now stands, that harmonization has not been fully achieved, since, for example, a medicinal preparation may be authorized in one Member State but not in one or more others, with or without prescription . It is only when Community directives provide for complete harmonization of all the measures necessary for the protection of human and animal health that recourse to Article 36 will cease to be justified . It is therefore necessary to consider whether measures of the type at issue may be justified under Article 36 of the Treaty .
17 As the Court has consistently held, health and the life of humans rank foremost among the property or interests protected by Article 36 and it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to assure and in particular how strict the checks to be carried out are to be .
18 The Court has also held, however, that it emerges from Article 36 that national rules or practices which restrict imports of pharmaceutical products or are capable of doing so are compatible with the Treaty only to the extent to which they are necessary for the effective protection of the health and life of humans .
20 The purchase of a medicinal preparation in a pharmacy in another Member State provides a guarantee equivalent to that referred to by the German and Danish Governments, that is to say that which arises from the fact that the medicinal preparation is sold through a pharmacy in the Member State into which the medicinal preparation is imported by a private individual . That conclusion is all the more compelling inasmuch as the conditions for access to the profession of pharmacist and the conditions for the exercise of that profession are regulated in Council Directives 85/432 and 85/433 of 16 September 1985 ( Official Journal 1985, L 253, pp . 34 and 37 ).
22 In answer to the question referred by the national court, it must therefore be stated that national provisions which prohibit the importation by a private individual for his personal needs of medicinal preparations which are authorized in the Member State of importation, are available in that State without a medical prescription and were purchased in a pharmacy in another Member State are incompatible with Articles 30 and 36 of the Treaty .