larimo/cjeu-paragraph-retrieval huggingface dataset:
SA Les Fils de Jules Bianco and J. Girard Fils SA v Directeur Général des douanes et droits indirects.
Date: 1988-02-25
12 ON THIS POINT IT SHOULD BE BORNE IN MIND THAT, AS THE COURT HELD IN ITS JUDGMENT OF 9 NOVEMBER 1983 IN CASE 199/82 AMMINISTRAZIONE DELLE FINANZE DELLO STATO V SAN GIORGIO SPA (( 1983 )) ECR 3595 ), ANY REQUIREMENT OF PROOF WHICH HAS THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE OR EXCESSIVELY DIFFICULT TO SECURE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO COMMUNITY LAW IS INCOMPATIBLE WITH COMMUNITY LAW, AND THAT THIS IS SO IN PARTICULAR IN THE CASE OF PRESUMPTIONS OR RULES OF EVIDENCE DESIGNED TO PLACE ON THE TAXPAYER THE BURDEN OF ESTABLISHING THAT THE UNDULY PAID CHARGES HAVE NOT BEEN PASSED ON TO OTHER PERSONS .
17 IN THIS RESPECT IT MUST BE STRESSED THAT, EVEN THOUGH INDIRECT TAXES ARE DESIGNED IN NATIONAL LAW TO BE PASSED ON TO THE FINAL CONSUMER AND IN COMMERCE ARE NORMALLY PASSED ON IN WHOLE OR IN PART, IT CANNOT BE GENERALLY ASSUMED THAT THE CHARGE IS ACTUALLY PASSED ON IN EVERY CASE . THE ACTUAL PASSING ON OF SUCH TAXES, EITHER IN WHOLE OR IN PART, DEPENDS ON VARIOUS FACTORS IN EACH COMMERCIAL TRANSACTION WHICH DISTINGUISH IT FROM OTHER TRANSACTIONS IN OTHER CONTEXTS . CONSEQUENTLY, THE QUESTION WHETHER AN INDIRECT TAX HAS OR HAS NOT BEEN PASSED ON IN EACH CASE IS A QUESTION OF FACT TO BE DETERMINED BY THE NATIONAL COURT WHICH MAY FREELY ASSESS THE EVIDENCE . HOWEVER, IN THE CASE OF INDIRECT TAXES, IT MAY NOT BE ASSUMED THAT THERE IS A PRESUMPTION THAT THEY HAVE BEEN PASSED ON AND THAT IT IS FOR THE TAXPAYER TO PROVE THE CONTRARY . THIS IN NO WAY PREJUDGES THE SOLUTION OF THE SPECIFIC PROBLEM THAT ARISES AS REGARDS THE BURDEN OF PROOF WHERE THE TAXPAYER HAS BEEN OBLIGED TO PASS ON A CHARGE BY THE RELEVANT LEGISLATION ITSELF .
Commission of the European Communities v Federal Republic of Germany.
Date: 1988-02-25
13 THE DIRECTIVE MUST BE INTERPRETED IN THE LIGHT OF THOSE PRINCIPLES . ARTICLE 5 OF THE DIRECTIVE MAY NOT HAVE THE EFFECT OF IMPOSING UPON A LAWYER PROVIDING SERVICES REQUIREMENTS FOR WHICH THERE IS NO EQUIVALENT IN THE PROFESSIONAL RULES WHICH WOULD APPLY IN THE ABSENCE OF ANY PROVISION OF SERVICES WITHIN THE MEANING OF THE TREATY . IT IS UNDISPUTED THAT, IN PROCEEDINGS FOR WHICH GERMAN LAW DOES NOT MAKE REPRESENTATION BY A LAWYER MANDATORY, THE PARTIES MAY CONDUCT THEIR CASES THEMSELVES; IN SUCH PROCEEDINGS, GERMAN LAW ALSO ALLOWS REPRESENTATION TO BE ENTRUSTED TO A PERSON WHO IS NEITHER A LAWYER NOR A SPECIALIST, PROVIDED THAT THAT PERSON DOES NOT ACT IN A PROFESSIONAL CAPACITY .
Criminal proceedings against Rainer Drexl.
Date: 1988-02-25
18 AS THE COURT HAS ALREADY HELD IN ANOTHER CONTEXT CONCERNING THE FREE MOVEMENT OF PERSONS, A SYSTEM OF PENALTIES SHOULD NOT HAVE THE EFFECT OF JEOPARDIZING THE FREEDOMS PROVIDED FOR BY THE EEC TREATY . THAT WOULD BE THE CASE IF A PENALTY WERE SO DISPROPORTIONATE TO THE GRAVITY OF THE OFFENCE THAT IT BECAME AN OBSTACLE TO THE FREEDOM GUARANTEED BY COMMUNITY LAW ( SEE THE JUDGMENT OF 3 JULY 1980 IN CASE 157/79 REGINA V PIECK (( 1980 )) ECR 2171 ).
22 IT MUST BE STATED IN THAT REGARD THAT THE TWO CATEGORIES OF OFFENCES IN QUESTION ARE DISTINGUISHED BY DIFFERENT CIRCUMSTANCES CONCERNING BOTH THE CONSTITUENT ELEMENTS OF THE OFFENCE AND THE GREATER OR LESSER EXTENT OF THE DIFFICULTY OF DISCOVERING IT . VALUE-ADDED TAX ON IMPORTATION IS CHARGED SIMPLY WHEN THE GOODS ACTUALLY ENTER THE TERRITORY OF THE MEMBER STATE CONCERNED, RATHER THAN ON A TRANSACTION . THOSE DIFFERENCES MEAN, IN PARTICULAR, THAT THE MEMBER STATES ARE NOT REQUIRED TO HAVE THE SAME SYSTEM OF RULES FOR THE TWO CATEGORIES OF OFFENCES .
24 AS THE COURT STATED IN ITS JUDGMENT OF 5 MAY 1982 IN CASE 15/81 GASTON SCHUL DOUANE EXPEDITEUR BV V INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN, ROOSENDAAL (( 1982 )) ECR 1409, THE INTERPRETATION OF ARTICLE 95 MUST TAKE ACCOUNT OF THE OBJECTIVES OF THE TREATY AS LAID DOWN IN ARTICLES 2 AND 3, WHICH INCLUDE, IN THE FIRST PLACE, THE ESTABLISHMENT OF A COMMON MARKET INVOLVING THE ELIMINATION OF ALL OBSTACLES TO TRADE IN ORDER TO MERGE THE NATIONAL MARKETS INTO A SINGLE MARKET BRINGING ABOUT CONDITIONS AS CLOSE AS POSSIBLE TO THOSE OF A GENUINE INTERNAL MARKET . THE COURT ADDED THAT IT IS IMPORTANT THAT NOT ONLY TRADERS BUT ALSO PRIVATE PERSONS WHO CARRY OUT ECONOMIC TRANSACTIONS ACROSS NATIONAL FRONTIERS SHOULD ALSO BE ABLE TO ENJOY THE BENEFITS OF THAT MARKET .
Allen and Hanburys Ltd v Generics (UK) Ltd.
Date: 1988-03-03
11 IN GENERAL TERMS THE SPECIFIC SUBJECT-MATTER OF INDUSTRIAL AND COMMERCIAL PROPERTY INCLUDES 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 ( SEE THE AFOREMENTIONED JUDGMENT IN MERCK ).
25 IT SHOULD BE OBSERVED THAT THE REQUIREMENTS LAID DOWN BY THE TREATY REGARDING THE FREE MOVEMENT OF GOODS APPLY EQUALLY TO ALL THE AUTHORITIES OF A MEMBER STATE, WHETHER THEY BE JUDICIAL OR ADMINISTRATIVE BODIES .
Commission of the European Communities v Board of Governors of the European Investment Bank.
Date: 1988-03-03
24 THOSE CONSIDERATIONS ARE EQUALLY VALID AS REGARDS THE APPLICATION OF ARTICLE 13 OF THE PROTOCOL TO THE STAFF OF THE BANK PURSUANT TO ARTICLE 22 OF THE PROTOCOL . IN ITS JUDGMENT OF 15 JUNE 1976 IN CASE 110/75 ( MILLS V EUROPEAN INVESTMENT BANK (( 1976 )) ECR 955 ) THE COURT HELD THAT THE BANK WAS A COMMUNITY BODY ESTABLISHED AND ENDOWED WITH LEGAL PERSONALITY BY THE TREATY . CONSEQUENTLY, THE BANK' S STAFF HAD TO BE EXEMPTED FROM NATIONAL TAXES JUST LIKE THE COMMUNITY' S STAFF AND BE SUBJECTED TO A COMMUNITY TAX . SINCE THE PROTOCOL CONTAINS NO PROVISIONS TO THE CONTRARY, THE RESULT OF THE APPLICATION OF ARTICLE 13 TO THE STAFF OF THE BANK MUST BE THAT THE COUNCIL HAS THE POWER TO EXTEND THE SCOPE OF THE CONDITIONS AND THE PROCEDURE ADOPTED PURSUANT TO THAT ARTICLE SO AS TO COVER THE STAFF OF THE BANK .
28 IT IS TRUE THAT UNDER ARTICLE 129 OF THE TREATY THE BANK HAS LEGAL PERSONALITY DISTINCT FROM THAT OF THE COMMUNITY AND THAT IT IS ADMINISTERED AND MANAGED BY ORGANS OF ITS OWN IN ACCORDANCE WITH ITS STATUTE . IN ORDER TO PERFORM THE TASKS ASSIGNED TO IT BY ARTICLE 130 OF THE TREATY THE BANK MUST BE ABLE TO ACT IN COMPLETE INDEPENDENCE ON THE FINANCIAL MARKETS, LIKE ANY OTHER BANK . INDEED, THE BANK IS NOT FINANCED OUT OF THE BUDGET BUT FROM ITS OWN RESOURCES, WHICH CONSIST IN PARTICULAR OF THE CAPITAL SUBSCRIBED BY THE MEMBER STATES AND FUNDS BORROWED ON THE FINANCIAL MARKETS . LASTLY, THE BANK DRAWS UP ANNUAL ACCOUNTS AND A PROFIT AND LOSS ACCOUNT WHICH ARE AUDITED ANNUALLY BY A COMMITTEE APPOINTED BY THE BOARD OF GOVERNORS .
29 NEVERTHELESS, THE FACT THAT THE BANK HAS THAT DEGREE OF OPERATIONAL AND INSTITUTIONAL AUTONOMY DOES NOT MEAN THAT IT IS TOTALLY SEPARATED FROM THE COMMUNITIES AND EXEMPT FROM EVERY RULE OF COMMUNITY LAW . IT IS CLEAR IN PARTICULAR FROM ARTICLE 130 OF THE TREATY THAT THE BANK IS INTENDED TO CONTRIBUTE TOWARDS THE ATTAINMENT OF THE COMMUNITY' S OBJECTIVES AND THUS BY VIRTUE OF THE TREATY FORMS PART OF THE FRAMEWORK OF THE COMMUNITY .
30 THE POSITION OF THE BANK IS THEREFORE AMBIVALENT INASMUCH AS IT IS CHARACTERIZED ON THE ONE HAND BY INDEPENDENCE IN THE MANAGEMENT OF ITS AFFAIRS, IN PARTICULAR IN THE SPHERE OF FINANCIAL OPERATIONS, AND ON THE OTHER BY A CLOSE LINK WITH THE COMMUNITY AS REGARDS ITS OBJECTIVES . IT IS ENTIRELY COMPATIBLE WITH THE AMBIVALENT NATURE OF THE BANK THAT THE PROVISIONS GENERALLY APPLICABLE TO THE TAXATION OF STAFF AT THE COMMUNITY LEVEL SHOULD ALSO APPLY TO THE STAFF OF THE BANK . THIS IS TRUE IN PARTICULAR OF THE RULE THAT THE TAX IN QUESTION IS COLLECTED FOR THE BENEFIT OF THE COMMUNITIES' BUDGET . CONTRARY TO THE CONTENTIONS OF THE BOARD OF GOVERNORS, THE FACT THAT THE TAX IS ALLOTTED TO THAT PURPOSE IS NOT LIABLE TO UNDERMINE THE OPERATIONAL AUTONOMY AND REPUTATION OF THE BANK AS AN INDEPENDENT INSTITUTION ON THE FINANCIAL MARKETS SINCE IT DOES NOT AFFECT THE CAPITAL OR THE ACTUAL MANAGEMENT OF THE BANK .
Apple and Pear Development Council v Commissioners of Customs and Excise.
Date: 1988-03-08
11 IT SHOULD BE NOTED THAT, IN ITS JUDGMENT OF 5 FEBRUARY 1981 ( CASE 154/80 STAATSSECRETARIS VAN FINANCIEN V COOEPERATIEVE AARDAPPELENBEWAARPLAATS (( 1981 )) ECR 445 ) THE COURT RULED THAT, FOR THE PROVISION OF SERVICES TO BE TAXABLE WITHIN THE MEANING OF THE SECOND DIRECTIVE, THERE MUST BE A DIRECT LINK BETWEEN THE SERVICE PROVIDED AND THE CONSIDERATION RECEIVED .
12 IT MUST THEREFORE BE STATED THAT THE CONCEPT OF THE SUPPLY OF SERVICES EFFECTED FOR CONSIDERATION WITHIN THE MEANING OF ARTICLE 2 ( 1 ) OF THE SIXTH DIRECTIVE PRESUPPOSES THE EXISTENCE OF A DIRECT LINK BETWEEN THE SERVICE PROVIDED AND THE CONSIDERATION RECEIVED .
16 IT FOLLOWS THAT MANDATORY CHARGES OF THE KIND IMPOSED ON THE GROWERS IN THIS CASE DO NOT CONSTITUTE CONSIDERATION HAVING A DIRECT LINK WITH THE BENEFITS ACCRUING TO INDIVIDUAL GROWERS AS A RESULT OF THE EXERCISE OF THE DEVELOPMENT COUNCIL' S FUNCTIONS . IN THOSE CIRCUMSTANCES, THE EXERCISE OF THOSE FUNCTIONS DOES NOT THEREFORE CONSTITUTE A SUPPLY OF SERVICES EFFECTED FOR CONSIDERATION WITHIN THE MEANING OF ARTICLE 2 ( 1 ) OF THE SIXTH DIRECTIVE .
Leesportefeuille "Intiem" CV v Staatssecretaris van Financiën.
Date: 1988-03-08
13 IN THAT REGARD IT MUST BE OBSERVED THAT IT IS CLEAR FROM THE DEDUCTION SYSTEM, AS LAID DOWN IN ARTICLES 17 TO 20 OF THE SIXTH DIRECTIVE, THAT THE RIGHT TO DEDUCT VALUE-ADDED TAX PAID ON INPUTS APPLIES TO GOODS AND SERVICES CONNECTED WITH THE PURSUIT OF THE TAXABLE PERSON' S BUSINESS, EXCLUDING, AS STATED IN ARTICLE 17 ( 6 ), ANY EXPENDITURE WHICH IS NOT "STRICTLY BUSINESS EXPENDITURE" SUCH AS THAT ON LUXURIES, AMUSEMENTS OR ENTERTAINMENT .
14 IT MUST ACCORDINGLY BE CONCLUDED THAT THIS DEDUCTION SYSTEM MUST BE APPLIED IN SUCH A WAY THAT ITS SCOPE CORRESPONDS AS FAR AS POSSIBLE TO THE SPHERE OF THE TAXABLE PERSON' S BUSINESS ACTIVITY . WHERE, IN SUCH CIRCUMSTANCES, ARTICLE 17 ( 2 ) OF THE SIXTH DIRECTIVE RESTRICTS THE TAXABLE PERSON' S RIGHT OF DEDUCTION, AS REGARDS THE VALUE-ADDED TAX ON SUPPLIED GOODS, TO THE TAX DUE OR PAID "IN RESPECT OF GOODS ... SUPPLIED TO HIM", THE PURPOSE OF THAT PROVISION CANNOT BE TO EXCLUDE FROM THE RIGHT OF DEDUCTION THE VALUE-ADDED TAX PAID ON GOODS WHICH, ALTHOUGH SOLD TO THE TAXABLE PERSON IN ORDER TO BE USED EXCLUSIVELY IN HIS BUSINESS, WERE PHYSICALLY DELIVERED TO HIS EMPLOYEES .
Anthony McNicholl Ltd and others v Minister for Agriculture.
Date: 1988-03-08
11 AS REGARDS THE CONCEPT OF FORCE MAJEURE, THE COURT HAS CONSISTENTLY HELD THAT, WHILST THAT CONCEPT DOES NOT PRESUPPOSE ABSOLUTE IMPOSSIBILITY, IT NEVERTHELESS REQUIRES THE NON-PERFORMANCE OF THE ACT IN QUESTION TO BE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON CLAIMING FORCE MAJEURE, WHICH ARE ABNORMAL AND UNFORESEEABLE AND OF WHICH THE CONSEQUENCES COULD NOT HAVE BEEN AVOIDED DESPITE THE EXERCISE OF ALL DUE CARE ( SEE, MOST RECENTLY, THE JUDGMENT OF 27 OCTOBER 1987 IN CASE 109/86 IOANNIS THEODORAKIS VIOMIKHANIA ELEOU AE V THE GREEK STATE (( 1987 )) ECR 4319 ).
SPRL Arcado v SA Haviland.
Date: 1988-03-08
10 AS THE COURT HELD IN ITS JUDGMENT OF 22 MARCH 1983 IN CASE 34/82 ( MARTIN PETERS BAUUNTERNEHMUNG GMBH V ZUID NEDERLANDSE AANNEMERS VERENIGING (( 1983 )) ECR 987 ) THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" SERVES AS A CRITERION TO DEFINE THE SCOPE OF ONE OF THE RULES OF SPECIAL JURISDICTION AVAILABLE TO THE PLAINTIFF . HAVING REGARD TO THE OBJECTIVE AND THE GENERAL SCHEME OF THE CONVENTION, IT IS IMPORTANT THAT, IN ORDER TO ENSURE AS FAR AS POSSIBLE THE EQUALITY AND UNIFORMITY OF THE RIGHTS AND OBLIGATIONS ARISING OUT OF THE CONVENTION FOR THE CONTRACTING STATES AND THE PERSONS CONCERNED, THAT CONCEPT SHOULD NOT BE INTERPRETED SIMPLY AS REFERRING TO THE NATIONAL LAW OF ONE OR OTHER OF THE STATES CONCERNED .
11 CONSEQUENTLY, THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" IS TO BE REGARDED AS AN INDEPENDENT CONCEPT WHICH, FOR THE PURPOSE OF THE APPLICATION OF THE CONVENTION, MUST BE INTERPRETED BY REFERENCE PRINCIPALLY TO THE SYSTEM AND OBJECTIVES OF THE CONVENTION IN ORDER TO ENSURE THAT IT IS FULLY EFFECTIVE .
13 THE SAME VIEW MUST BE TAKEN OF A CLAIM FOR COMPENSATION FOR THE WRONGFUL REPUDIATION OF SUCH AN AGREEMENT AS THE BASIS FOR SUCH COMPENSATION IS THE FAILURE TO COMPLY WITH A CONTRACTUAL OBLIGATION .
Leslie Brown v Court of Justice of the European Communities.
Date: 1988-03-08
13 AS REGARDS THE FIRST HEAD OF CLAIM, IT MUST BE POINTED OUT THAT IN EFFECT IT CALLS IN QUESTION AN INDIVIDUAL DECISION WHICH HAS BECOME FINAL . THE COURT HAS CONSISTENTLY HELD ( SEE, IN PARTICULAR, ITS JUDGMENT OF 15 DECEMBER 1971 IN CASE 17/71 TONTODONATI V COMMISSION (( 1971 )) ECR 1059 ) THAT AN OFFICIAL CANNOT REOPEN THE LIMITATION PERIOD PROVIDED FOR IN ARTICLE 91 OF THE STAFF REGULATIONS WHICH HE HAS ALLOWED TO LAPSE BY LODGING A COMPLAINT ON THE SAME SUBJECT-MATTER AS THE DECISION WHICH HAS BECOME FINAL . AS THE COURT STATED IN ITS JUDGMENT OF 15 MAY 1985 IN CASE 127/84 ESLY V COMMISSION (( 1985 )) ECR 1437, ONLY THE EMERGENCE OF A NEW FACT IS CAPABLE OF CAUSING TIME TO START RUNNING AGAIN SO AS TO ENABLE CONTENTIOUS PROCEEDINGS TO BE INSTITUTED AGAINST SUCH A DECISION . IN THAT REGARD, THE COURT HAS CONSISTENTLY HELD ( SEE, IN PARTICULAR, ITS JUDGMENT OF 17 JUNE 1965 IN CASE 43/64 MOELLER V COUNCILS OF THE EEC, EAEC AND ECSC (( 1965 )) ECR 385 ) THAT A JUDGMENT ANNULLING AN ADMINISTRATIVE MEASURE CAN CONSTITUTE A NEW FACTOR ONLY AS REGARDS THE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED .
Commission of the European Communities v Hellenic Republic.
Date: 1988-03-15
7 IN THAT REGARD IT MUST BE EMPHASIZED THAT, SINCE IT DEROGATES FROM THE FUNDAMENTAL RULE OF FREEDOM OF ESTABLISHMENT, ARTICLE 55 OF THE TREATY MUST BE INTERPRETED IN A MANNER WHICH LIMITS ITS SCOPE TO WHAT IS STRICTLY NECESSARY IN ORDER TO SAFEGUARD THE INTERESTS WHICH IT ALLOWS THE MEMBER STATES TO PROTECT .
8 IT IS TRUE THAT, IN THE ABSENCE OF A COMMUNITY DIRECTIVE DESIGNED TO HARMONIZE NATIONAL PROVISIONS ON THE SETTING-UP OF TEACHING ESTABLISHMENTS, THE POSSIBLE APPLICATION OF RESTRICTIONS ON FREEDOM OF ESTABLISHMENT PROVIDED FOR BY ARTICLE 55 MUST BE APPRAISED SEPARATELY IN RESPECT OF EACH MEMBER STATE . HOWEVER, THAT APPRAISAL MUST TAKE ACCOUNT OF THE COMMUNITY CHARACTER OF THE LIMITS SET BY ARTICLE 55 TO THE EXCEPTIONS WHICH ARE PERMITTED TO THE PRINCIPLE OF FREEDOM OF ESTABLISHMENT, IN ORDER TO PREVENT THE EFFECTIVENESS OF THE TREATY IN THIS AREA FROM BEING UNDERMINED BY UNILATERAL PROVISIONS ADOPTED BY THE MEMBER STATES .
Andre Hecq v Commission of the European Communities.
Date: 1988-03-23
6 IN THAT REGARD IT MUST BE POINTED OUT THAT IN ITS JUDGMENTS THE COURT HAS HELD THAT THE COMMUNITY INSTITUTIONS HAVE A BROAD DISCRETION TO ORGANIZE THEIR DEPARTMENTS TO SUIT THE TASKS ENTRUSTED TO THEM AND TO ASSIGN STAFF AVAILABLE TO THEM IN THE LIGHT OF SUCH TASKS, ON CONDITION HOWEVER THAT THE STAFF ARE ASSIGNED IN THE INTERESTS OF THE SERVICE AND IN CONFORMITY WITH THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST ( JUDGMENT OF 23 JUNE 1984 IN CASE 69/83 LUX V COURT OF AUDITORS (( 1984 )) ECR 2447 ).
7 IT IS CLEAR FROM ARTICLES 5 AND 7 OF THE STAFF REGULATIONS THAT AN OFFICIAL HAS THE RIGHT TO EXPECT THAT THE DUTIES WHICH ARE ASSIGNED TO HIM SHOULD AS A WHOLE BE IN KEEPING WITH THE POST WHICH CORRESPONDS TO THE GRADE WHICH HE OCCUPIES IN THE SCALE OF POSTS . HOWEVER, FOR A MEASURE FOR THE REORGANIZATION OF DEPARTMENTS TO AFFECT THAT RIGHT ADVERSELY, IT IS NOT SUFFICIENT THAT IT SHOULD BRING ABOUT A CHANGE IN OR EVEN ANY DIMINUTION OF THE OFFICIAL' S RESPONSIBILITIES, BUT IT IS NECESSARY THAT, TAKEN TOGETHER, HIS NEW RESPONSIBILITIES SHOULD FALL CLEARLY SHORT OF THOSE CORRESPONDING TO HIS GRADE AND POST, TAKING ACCOUNT OF THEIR CHARACTER, THEIR IMPORTANCE AND THEIR SCOPE .
8 IN ORDER TO EXAMINE WHETHER THE APPLICANT' S RIGHTS HAVE BEEN DISREGARDED BY THE DECISIONS BY WHICH NEW RESPONSIBILITIES WERE ASSIGNED TO HIM, IT IS THEREFORE NECESSARY TO COMPARE THOSE RESPONSIBILITIES TO HIS GRADE AND POST . CONSEQUENTLY, THE SUBMISSION BASED ON A COMPARISON BETWEEN THE APPLICANT' S PRESENT DUTIES AND HIS PREVIOUS DUTIES IS OF NO RELEVANCE .
Commission of the European Communities v Italian Republic.
Date: 1988-03-24
6 AS THE COURT HAS ALREADY HELD ( SEE THE JUDGMENT OF 27 FEBRUARY 1980 IN CASE 68/79 JUST V DANISH MINISTRY OF FISCAL AFFAIRS (( 1980 )) ECR 501 ), IN THE ABSENCE OF COMMUNITY RULES CONCERNING THE REFUNDING OF NATIONAL CHARGES WHICH HAVE BEEN LEVIED IN BREACH OF COMMUNITY LAW, IT IS FOR THE MEMBER STATES TO ENSURE THE REPAYMENT OF SUCH CHARGES IN ACCORDANCE WITH THE PROVISIONS OF THEIR INTERNAL LAW . FURTHERMORE, COMMUNITY LAW DOES NOT REQUIRE AN ORDER FOR THE RECOVERY OF CHARGES IMPROPERLY MADE TO BE GRANTED IN CONDITIONS WHICH WOULD INVOLVE AN UNJUST ENRICHMENT OF THOSE ENTITLED . THUS IT DOES NOT PREVENT THE FACT THAT THE BURDEN OF SUCH CHARGES MAY HAVE BEEN PASSED ON TO OTHER TRADERS OR TO CONSUMERS FROM BEING TAKEN INTO CONSIDERATION .
7 LASTLY, AS THE COURT HELD IN THE JUDGMENT OF 9 NOVEMBER 1983 ( CASE 199/82 AMMINISTRAZIONE DELLE FINANZE DELLO STATO V SAN GIORGIO (( 1983 )) ECR 3595 ), WITH REGARD TO ARTICLE 19 OF THE VERY DECREE-LAW AT ISSUE IN THIS CASE, ANY REQUIREMENT OF PROOF WHICH HAS THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE OR EXCESSIVELY DIFFICULT TO SECURE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO COMMUNITY LAW IS INCOMPATIBLE WITH COMMUNITY LAW; THAT IS PARTICULARLY SO IN THE CASE OF PRESUMPTIONS OR RULES OF EVIDENCE INTENDED TO PLACE ON THE TAXPAYER THE BURDEN OF ESTABLISHING THAT THE CHARGES UNDULY PAID HAVE NOT BEEN PASSED ON TO OTHER PERSONS OR OF SPECIAL LIMITATIONS CONCERNING THE FORM OF THE EVIDENCE TO BE ADDUCED, SUCH AS THE EXCLUSION OF ANY KIND OF EVIDENCE OTHER THAN DOCUMENTARY EVIDENCE .
12 DESPITE THE ABOVEMENTIONED JUDGMENTS RELIED ON BY THE ITALIAN GOVERNMENT, AND EVEN THOUGH IT MUST BE ACKNOWLEDGED THAT THE DEVELOPMENT OF THE CASE-LAW OF THE ITALIAN CONSTITUTIONAL COURT DOES HAVE THE EFFECT OF FACILITATING THE APPLICATION OF THE PRINCIPLES OF THE DIRECT EFFECT AND PRIMACY OF COMMUNITY LAW IN THE DOMESTIC LEGAL ORDER, IT MUST BE OBSERVED THAT THE CONTESTED PROVISION IS STILL PART OF NATIONAL LAW . AS THE COURT HAS HELD ON A NUMBER OF OCCASIONS, THE PRIMACY AND DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW DO NOT RELEASE MEMBER STATES FROM THEIR OBLIGATION TO REMOVE FROM THEIR DOMESTIC LEGAL ORDER ANY PROVISIONS INCOMPATIBLE WITH COMMUNITY LAW, SINCE THE MAINTENANCE OF SUCH PROVISIONS GIVES RISE TO AN AMBIGUOUS STATE OF AFFAIRS IN SO FAR AS IT LEAVES PERSONS CONCERNED IN A STATE OF UNCERTAINTY AS TO THE POSSIBILITIES AVAILABLE TO THEM OF RELYING ON COMMUNITY LAW .
Commission of the European Communities v Hellenic Republic.
Date: 1988-03-24
12 THE GREEK GOVERNMENT CONSIDERS THAT SINCE THE BARRIERS TO CEREAL IMPORTS WERE LIFTED BEFORE THE ACTION WAS COMMENCED IT IS DEVOID OF PURPOSE .
13 AT THE HEARING THE COMMISSION ACKNOWLEDGED THAT THE FAILURE TO FULFIL OBLIGATIONS HAD BEEN REMEDIED BUT NEVERTHELESS ASSERTED THAT IT HAD AN INTEREST IN OBTAINING A RULING IN RESPECT OF MEASURES ADOPTED BY THE HELLENIC REPUBLIC IN THE PAST .
14 AS THE COURT HAS CONSISTENTLY HELD ( SEE MOST RECENTLY THE JUDGMENT OF 5 JUNE 1986 IN CASE 103/84 COMMISSION V ITALIAN REPUBLIC (( 1986 )) ECR 1759 ), THE SUBJECT-MATTER OF AN ACTION BROUGHT UNDER ARTICLE 169 IS ESTABLISHED BY THE COMMISSION' S REASONED OPINION AND EVEN WHERE THE DEFAULT HAS BEEN REMEDIED AFTER THE PERIOD LAID DOWN PURSUANT TO THE SECOND PARAGRAPH OF THAT ARTICLE HAS ELAPSED, AN INTEREST STILL SUBSISTS IN PURSUING THE ACTION . THAT INTEREST MAY CONSIST IN ESTABLISHING THE BASIS FOR A LIABILITY WHICH A MEMBER STATE MAY INCUR, BY REASON OF ITS FAILURE TO FULFIL ITS OBLIGATIONS, TOWARDS THOSE TO WHOM RIGHTS ACCRUE AS A RESULT OF THAT FAILURE .
15 SINCE THE HELLENIC REPUBLIC DID NOT COMPLY WITH THE REASONED OPINION OF 25 NOVEMBER 1985 WITHIN THE PERIOD STIPULATED BY THE COMMISSION THE ACTION IS ADMISSIBLE IN SO FAR AS IT CONCERNS THE SUBJECT-MATTER OF THE DISPUTE AS DEFINED BY THAT OPINION .
M. v Council of the European Communities.
Date: 1988-04-19
16 IN THAT REGARD, IT MUST BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD THAT THE TIME-LIMITS LAID DOWN IN ARTICLE 7 OF ANNEX IX ARE NOT MANDATORY BUT CONSTITUTE RULES OF SOUND ADMINISTRATION; FAILURE TO OBSERVE THOSE TIME-LIMITS MAY RENDER THE INSTITUTION LIABLE FOR ANY DAMAGE CAUSED TO THOSE CONCERNED ( SEE THE COURT' S JUDGMENTS OF 4 FEBRUARY 1970 IN CASE 13/69 VAN EICK V COMMISSION (( 1970 )) ECR 3, AND OF 29 JANUARY 1985, F . V COMMISSION, CITED ABOVE ). SINCE THE FACT THAT THE TIME-LIMIT OF ONE MONTH WAS EXCEEDED DOES NOT IN ANY WAY AFFECT THE VALIDITY OF THE CONTESTED DECISION, THE THIRD COMPLAINT MUST BE REJECTED AND, CONSEQUENTLY, THE WHOLE OF THE SUBMISSION CONCERNING THE PROCEDURE .
( B ) THE STATEMENT OF REASONS
21 WITHOUT ITS BEING NECESSARY FOR THE COURT TO RULE ON THE CREDIBILITY OF THE EXPLANATIONS AS TO THE IGNORANCE OF THE FACTS COMPLAINED OF ON THE PART OF THE APPLICANT - WHO IS HIMSELF A LAWYER BY TRAINING AND WHO WAS REPRESENTED BY A LAWYER BEFORE THE NETHERLANDS COURTS - IT MUST BE EMPHASIZED THAT THE APPLICANT KNEW THAT DIVORCE PROCEEDINGS HAD BEEN STARTED AGAINST HIM AND WAS THEREFORE UNDER A DUTY TO FIND OUT WHAT STAGE THOSE PROCEEDINGS HAD REACHED, BEFORE HE MADE THE DECLARATIONS IN QUESTION . HE WAS AWARE THAT THOSE DECLARATIONS WOULD CONSTITUTE THE BASIS ON WHICH THE VARIOUS ALLOWANCES WOULD BE PAID AND EVEN IF, IN THE FINAL ANALYSIS, THE FINANCIAL LOSS SUFFERED BY THE COUNCIL IS RELATIVELY SMALL, THAT DOES NOT ALTER THE FACT THAT THE DECLARATIONS WERE FALSE, CONTRARY TO THE HONESTY AND TRUST WHICH SHOULD GOVERN RELATIONS BETWEEN THE ADMINISTRATION AND OFFICIALS AND INCOMPATIBLE WITH THE INTEGRITY WHICH EACH OFFICIAL IS REQUIRED TO SHOW .
Criminal proceedings against Guy Bekaert.
Date: 1988-04-20
5 IN VIEW OF THE WAY IN WHICH THE QUESTION IS WORDED, IT SHOULD FIRST OF ALL BE POINTED OUT THAT ALTHOUGH THE COURT HAS NO JURISDICTION UNDER ARTICLE 177 OF THE TREATY TO APPLY A RULE OF COMMUNITY LAW TO A PARTICULAR CASE AND THUS TO JUDGE A PROVISION OF NATIONAL LAW BY REFERENCE TO SUCH A RULE IT MAY, IN THE FRAMEWORK OF THE JUDICIAL COOPERATION PROVIDED FOR BY THAT ARTICLE AND ON THE BASIS OF THE MATERIAL PRESENTED TO IT, PROVIDE A NATIONAL COURT WITH AN INTERPRETATION OF COMMUNITY LAW WHICH MAY BE USEFUL TO IT IN ASSESSING THE EFFECTS OF THAT PROVISION .
6 ALTHOUGH THE QUESTION ASKED MAY THEREFORE BE UNDERSTOOD AS REQUESTING AN INTERPRETATION OF COMMUNITY LAW, IT MERELY MENTIONS "THE TREATY OF ROME AND THE DIRECTIVES OF THE EUROPEAN ECONOMIC COMMUNITY" AND DOES NOT STATE WHICH PROVISION OR PROVISIONS OF COMMUNITY LAW ARE IN ISSUE .
7 IN SIMILAR CIRCUMSTANCES THE COURT HAS HELD THAT IT MUST EXTRACT FROM ALL THE FACTORS PROVIDED BY THE NATIONAL COURT, AND IN PARTICULAR FROM THE STATEMENT OF GROUNDS CONTAINED IN THE REFERENCE, THE ELEMENTS OF COMMUNITY LAW REQUIRING AN INTERPRETATION, HAVING REGARD TO THE SUBJECT-MATTER OF THE DISPUTE ( JUDGMENT OF 29 NOVEMBER 1978 IN CASE 83/78 PIGS MARKETING BOARD V REDMOND (( 1978 )) ECR 2347 ).
12 THE ABSENCE OF ANY ELEMENT GOING BEYOND A PURELY NATIONAL SETTING IN A GIVEN CASE THEREFORE MEANS, IN MATTERS OF FREEDOM OF ESTABLISHMENT, THAT THE PROVISIONS OF COMMUNITY LAW ARE NOT APPLICABLE TO SUCH A SITUATION .