larimo/cjeu-paragraph-retrieval huggingface dataset:
Goldstar Co. Ltd v Council of the European Communities.
Date: 1992-02-13
12 In that regard, it must be stated first of all that according to the wording and scheme of Article 2(3)(a) of the basic regulation, in order to establish the normal value regard must be had primarily to the price actually paid or payable in the ordinary course of trade (see the judgment of 5 October 1988 in Joined Cases 277 and 300/85 Canon v Council [1988] ECR 5731, at paragraph 11). It is apparent from Article 2(3)(b) of the basic regulation that that principle can be derogated from only when there are no sales of the like product in the ordinary course of trade or when such sales do not permit a proper comparison.
13 The ordinary course of trade is a concept which relates to the nature of sales themselves. It is designed to exclude, for the determination of the normal value, situations in which sales on the domestic market are not made under conditions corresponding to the ordinary course of trade, in particular where a product is sold at a price below production costs or where transactions take place between parties which are associated or have a compensatory arrangement with each other.
33 As the Court held in its judgment in Case C-69/89 (Nakajima All Precision v Council [1991] ECR I-2069, at paragraph 37), Article 2(3)(b)(ii) of the basic regulation complies with Article 2(4) of the 1979 Anti-dumping Code inasmuch as it does not disregard the spirit of the latter provision but simply specifies, as regards the different situations which may arise in practice, the reasonable methods of calculating the constructed normal value.
Commission of the European Communities v Italian Republic.
Date: 1992-02-18
16 Secondly, as the Court has consistently held, Article 36 only admits derogations from the fundamental principle of the free movement of goods within the common market to the extent to which such derogations are justified for the purpose of safeguarding rights which constitute the specific subject-matter of such property (Case C-10/89 CNL-SUCAL v HAG [1990] ECR I-3711, paragraph 12).
17 In the case of patents, the specific subject-matter of the industrial property is, in particular, the exclusive right for the patent proprietor to use an invention with a view to manufacturing industrial products and putting them into circulation for the first time, either directly or by the grant of licences to third parties, as well as the right to oppose infringements (Case 434/85 Allen and Hanburys v Generics [1988] ECR 1245, paragraph 11). The specific subject-matter of patents for the product of new plant varieties is similar.
23 In that respect such provisions constitute measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 30 of the Treaty (Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 1992-02-18
16 As Community law stands, the provisions on patents have not yet been the subject of unification at Community level or in the context of approximation of laws. In that respect, it must be pointed out that, as stated above, the Community Patent Convention has not yet entered into force.
17 In those circumstances it is for the national legislature to determine the conditions and rules regarding the protection conferred by patents.
18 However, the provisions of the Treaty, and in particular Article 222 according to which the Treaty in no way prejudices the rules in Member States governing the system of property ownership, cannot be interpreted as reserving to the national legislature, in relation to industrial and commercial property, the power to adopt measures which would adversely affect the principle of free movement of goods within the common market as provided for and regulated by the Treaty.
20 Secondly, as the Court has consistently held, Article 36 only admits derogations from the fundamental principle of the free movement of goods within the common market to the extent to which such derogations are justified for the purpose of safeguarding rights which constitute the specific subject-matter of such property (Case C-10/89 CNL-SUCAL v HAG [1990] ECR I-3711, paragraph 12).
21 In the case of patents, the specific subject-matter of the industrial property is, in particular, the exclusive right for the patent proprietor to use an invention with a view to manufacturing industrial products and putting them into circulation for the first time, either directly or by the grant of licences to third parties, as well as the right to oppose infringements (Case 434/85 Allen and Hanburys v Generics [1988] ECR 1245, paragraph 11).
27 In that respect such provisions constitute measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 30 of the Treaty (Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).
30 Such a consideration, the effect of which is to frustrate the objectives of the Community as laid down in particular in Article 2 and specified in Article 3 of the Treaty, cannot be accepted as a justification for a restriction on trade between Member States.
Antonietta Di Prinzio v Office National des Pensions.
Date: 1992-02-18
46 Furthermore, as stated above, for the purposes of calculating benefits under Community rules, the competent institution must apply Regulation No 1408/71 in its entirety and, in particular, take into account the second sentence of Article 12(2) thereof under which national provisions for reduction may not be invoked against the worker.
49 The competent institution then calculates, in accordance with Article 46(2)(b) of Regulation No 1408/71, the actual amount of the benefit on the basis of the theoretical amount, and in the ratio which the length of the periods of insurance completed before the risk materializes under the legislation administered by it bears to the total length of the periods of insurance completed under the legislations of all the Member States concerned before the risk materialized.
50 That calculation must always be carried out, in view of the fact that, as noted at paragraph 32 of this judgment, the provisions of Article 46 of Regulation No 1408/71 are to be applied in their entirety (see also the Court' s judgment in Case 296/84 Sinatra v FNROM [1986] ECR 1047).
54 However, in a case such as that in the main proceedings, where the notional periods recognized by the applicable national legislation are prior to the materialization of the risk, those periods must be included in the calculation of the actual amount of the benefit, as is, moreover, expressly apparent from the terms "periods of insurance completed before the risk materializes" in Article 46(2)(b) of Regulation No 1408/71.
European Parliament v Jack Hanning.
Date: 1992-02-20
22 In the judgments in Schwiering v Court of Auditors, cited above, at paragraphs 11 and 12, and Hoyer v Court of Auditors, cited above, at paragraphs 12 and 13, the Court held that although the appointing authority had no power to annul or amend a decision taken by a selection board, it was required, in exercising its own powers, to take decisions free of irregularities. It could not therefore be bound by decisions of the selection board where the illegality of those decisions was liable to vitiate its own decisions.
27 Secondly, it follows from Articles 27 to 30 of the Staff Regulations that the list of suitable candidates drawn up by the Selection Board is intended to enable the appointing authority to choose the candidate who appears to it to be best able to perform the duties relating to the post to be filled.
28 The appointing authority may, for that purpose, depart from the order of merit in the list of suitable candidates drawn up by the selection board for reasons which it is incumbent upon it to determine and, if appropriate, to justify before the Community judicature, provided, however, that it does not destroy the very essence of the competition by departing substantially from the results of the competition without serious reasons (judgment in Case 246/84 Kotsonis v Council [1986] ECR 3989).
Erzeugergemeinschaft Gutshof-Ei GmbH v Stadt Bühl.
Date: 1992-02-25
12 The national court seeks a reply to the second and third questions only if the answer to the first question is affirmative. It should be borne in mind however that, according to Article 10(2)(e) of Regulation No 1907/90, large packs of eggs may also carry statements designed to promote sales provided that such statements and the manner in which they are made are not likely to mislead the purchaser. That regulation did not enter into force until 1 October 1990, that is to say after the date of the order for reference. However, it was maintained at the hearing that the national court is required by German procedural law to give its decision in the light of the provisions in force at the time of the last public sitting in the case. Accordingly, it is appropriate to give an answer to the second and third questions on the basis of the new egg marketing standards laid down in Regulation No 1907/90.
Elisabeth Hacker v Euro-Relais GmbH.
Date: 1992-02-26
8 As the Court pointed out in its judgment in Case 241/83 Roesler v Rottwinkel [1985] ECR 99, at paragraph 19, the raison d' être of the exclusive jurisdiction conferred by Article 16(1) on the courts of the Contracting State in which the property is situated is the fact that tenancies are closely bound up with the law of immovable property and with the provisions, generally of a mandatory character, governing its use, such as legislation controlling the level of rents and protecting the rights of tenants, including tenant farmers.
11 However, it must be borne in mind that the Court had previously stated, in its judgment in Case 73/77 Sanders v Van der Putte ([1977] ECR 2383, at paragraphs 15 and 16), that although those considerations explained the assignment of exclusive jurisdiction to the courts of the State in which the immovable property was situated in the case of tenancies of immovable property properly so-called, they did not apply where the principal aim of the agreement was of a different nature.
14 The situation is similar with regard to an agreement of the type in dispute in the main proceedings, which is concluded between a travel organizer and a customer in the place where they are both domiciled. Irrespective of its title, and although providing a service concerning the use of short-term holiday accommodation, such an agreement also includes other services, such as information and advice, where the travel organiser proposes a range of holiday offers, the reservation of accommodation during the period chosen by the customer, the reservation of seats in connection with travel arrangements, the reception at the destination and, possibly, travel cancellation insurance.
15 A complex contract of that type, which concerns a range of services provided in return for a lump sum paid by the customer, is outside the scope within which the exclusive jurisdiction laid down by Article 16(1) finds its raison d' être and cannot constitute a "tenancy agreement" within the meaning of that article as interpreted in the judgment in Sanders v Van der Putte, cited above.
Royale belge v Robert Joris.
Date: 1992-02-26
8 The wording of Article 73(4) of the Staff Regulations does not indicate that the subrogation in favour of the Communities is conditional upon the payment of benefits under the Staff Regulations. On the contrary, it provides that the Communities are automatically to be subrogated to the rights of the official, within the limits not of the payments made but of the obligations devolving upon them under the provisions of the Staff Regulations referred to. It is apparent from the wording of that provision that the event giving rise to subrogation in favour of the Communities is the existence of the obligation to pay benefits under the Staff Regulations, not the payment of them. The subrogation takes place upon the occurrence of the harmful event for which a third party is liable, even though it is not possible immediately to evaluate the Community' s obligations in pecuniary terms.
9 It must next be borne in mind that the purpose of the subrogation of the Communities is to ensure that an official is not compensated twice in respect of the same damage (see judgment in Case 103/81 Chaumont-Barthel v Parliament [1982] ECR 1003, paragraph 11). In so far as the damage suffered by an official renders the Communities subject to the obligation to pay him benefits under the Staff Regulations, the risk of twofold compensation can only be avoided if the official is deprived of his rights against any third party responsible for causing him damage, those rights being transferred to the Communities.
Canon Inc. v Council of the European Communities.
Date: 1992-03-10
13 Finally, with regard to the inclusion in the normal value of certain expenses incurred by CSC, it must be held that in view of the considerations set out above (in paragraphs 9 and 10) and as the Court held in Joined Cases 273/85 and 107/86 Silver Seiko v Council [1988] ECR 5927, at paragraph 14, by taking into consideration the sales subsidiary' s prices it is possible to ensure that costs which manifestly form part of the selling price of a product where the sale is made by an internal sales department of the manufacturing organization are not left out of account where the same selling activity is carried out by a company which, despite being financially controlled by the manufacturer, is a legally distinct entity.
15 In this connection it should be recalled that, according to the Court' s case-law (see inter alia the judgments in Case 240/84 Toyo v Council [1987] ECR 1809, at paragraph 13, Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, at paragraph 14, Case 258/84 Nippon Seiko v Council [1987] ECR 1923, at paragraph 14, and Case 260/84 Minebea v Council [1987] ECR 1975, at paragraph 8), determination of the normal value and determination of the export price are governed by separate rules and therefore selling, administrative and other general expenses need not necessarily be treated in the same way in both cases.
27 As was made clear by the Court' s judgment in Case C-156/87 Gestetner v Council and Commission [1990] ECR 781, at paragraphs 32 and 33, the fact that the costs incurred by Canon Europa relate to activities pursued prior to importation does not prevent the application of Article 2(8)(b) of Regulation No 2176/84, which does not preclude the making of necessary allowances where the export price must be constructed for reasons other than those referred to in that article.
32 It should be observed in limine that it follows from the judgments in the cases cited in paragraph 15, in particular Case 260/84 Minebea v Council, at paragraph 43, that the party claiming an adjustment must prove that its claim is justified, that is to say that the difference on which it relies concerns one of the factors listed in Article 2(9) of Regulation No 2176/84, that the difference affects price comparability and lastly, if it is a question particularly of differences in conditions and terms of sale, that those differences bear a direct relationship to the sales under consideration.
55 In this connection it should be recalled that according to a consistent line of cases, referred to in particular in the judgment in Case C-156/87 Gestetner, at paragraph 69, the statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights, and to enable the Court to exercise its supervisory jurisdiction.
Mita Industrial Co. Ltd v Council of the European Communities.
Date: 1992-03-10
9 It should first be recalled that the Court held in ruling on a similar plea in law also seeking the annulment of Regulation No 535/87 in the judgment in Joined Cases C-133/87 and C-150/87 Nashua Corporation v Commission and Council [1990] ECR 719, at paragraph 33, that the institutions had taken into consideration the difference between the costs and profits associated with sales to OEMs and the equivalent figures for other sales and that it was for that purpose, and because the institutions had found it impossible to gauge that difference accurately, that in constructing the normal value of products sold to OEMs they had set the profit margin at 5% instead of its average rate, estimated at 14.6%, applied to sales under the manufacturers' own brand names. Furthermore, Mita did not adduce evidence that the level of the allowance made by the institutions was insufficient to cover all the alleged differences.
11 It emerges from the case-law of the Court, as laid down in particular in the judgment in Case 250/85 Brother v Council [1988] ECR 5683, at paragraph 18, that the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in the country of origin or in the exporting country and consequently it is the expenses relating to sales on the domestic market which must be taken into account. Accordingly, it must be held that the institutions were right to refuse to use data relating to a market other than the domestic market of the country of origin or exporting country.
19 It should be borne in mind, first of all, that in its judgment in Case C-156/87 Gestetner v Council and Commission [1990] ECR 781, at paragraph 27, concerning Mita' s sales to the OEM Gestetner, the Court pointed out that the PPCs produced by Mita were sold through Mita Europe, which handled customers' orders, sent them the invoices and received the relevant payments and that the price paid by purchasers to Mita Europe was not the same as the price invoiced by Mita Japan to Mita Europe.
Konishiroku Photo Industry Co. Ltd v Council of the European Communities.
Date: 1992-03-10
19 It should be noted in this connection that when the same argument was relied on by the applicant in Case C-156/87 Gestetner, cited above, the Court pointed out at paragraph 57 that, with regard to imports of PPCs supplied by Fuji Xerox from Japan, the institutions took the view that Rank Xerox had not produced evidence that it had been led to buy the machines on grounds of self-protection. According to the information obtained the decision was a management decision taken by the Xerox group of companies. However, the volume of those imports was minimal in relation to the entire range of PPCs produced by Rank Xerox within the Community and in relation to the Community market as a whole (1%), and the resale prices were the same as the prices of equivalent machines produced by Rank Xerox.
23 That argument cannot be accepted. As the Court held in its judgment in Case C-156/87 Gestetner, at paragraph 47, Olivetti and Océ imported PPCs from Japan so as to be able to offer their customers a full range of models. Those PPCs, falling within segments 1 and 2, were sold at higher prices than those charged by their suppliers and accounted for between 35 and 40% of sales and rentals of new machines placed on the market over the period from 1981 to July 1985. The attempts of both producers to develop and market a full range of models failed, however, because of the depressed market prices imposed by Japanese imports.
43 It should be borne in mind that, as the Court held in its judgment in C-156/87 Gestetner, at paragraph 63, the question whether the interests of the Community call for Community intervention involves appraisal of complex economic situations and judicial review of such an appraisal must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.
Sanyo Electric Co. Ltd v Council of the European Communities.
Date: 1992-03-10
19 It should be noted in this connection that when the same argument was relied on by the applicant in Case C-156/87 Gestetner, cited above, the Court pointed out at paragraph 57 that, with regard to imports of PPCs supplied by Fuji Xerox from Japan, the institutions took the view that Rank Xerox had not produced evidence that it had been led to buy the machines on grounds of self-protection. According to the information obtained the decision was a management decision taken by the Xerox group of companies. However, the volume of those imports was minimal in relation to the entire range of PPCs produced by Rank Xerox within the Community and in relation to the Community market as a whole (1%), and the resale prices were the same as the prices of equivalent machines produced by Rank Xerox.
23 That argument cannot be accepted. As the Court held in its judgment in Case C-156/87 Gestetner, at paragraph 47, Olivetti and Océ imported PPCs from Japan so as to be able to offer their customers a full range of models. Those PPCs, falling within segments 1 and 2, were sold at higher prices than those charged by their suppliers and accounted for between 35 and 40% of sales and rentals of new machines placed on the market over the period from 1981 to July 1985. The attempts of both producers to develop and market a full range of models failed, however, because of the depressed market prices imposed by Japanese imports.
43 It should be borne in mind that, as the Court held in its judgment in C-156/87 Gestetner, at paragraph 63, the question whether the interests of the Community call for Community intervention involves appraisal of complex economic situations and judicial review of such an appraisal must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.