larimo/cjeu-paragraph-retrieval huggingface dataset:
Minalmet GmbH v Brandeis Ltd.
Date: 1992-11-12
13 It must next be noted that, in its judgment in Case C-305/88 Lancray [1990] ECR I-2725, paragraph 18, the Court held that due service and service in sufficient time constituted two separate and concurrent safeguards for a defendant who fails to appear. The absence of one of those safeguards is therefore a sufficient ground for refusing to recognize a foreign judgment.
18 Furthermore, as the Court held in its judgment in Case 166/80 Klomps [1981] ECR 1593, paragraph 9, Article 27(2) of the Brussels Convention is intended to uphold the rights of the defence and ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the Court first seised.
19 It must be emphasized in that regard that, as is apparent from the provision at issue, the proper time for the defendant to have an opportunity to defend himself is the time at which proceedings are commenced. The possibility of having recourse, at a later stage, to a legal remedy against a judgment given in default of appearance, which has already become enforceable, cannot constitute an equally effective alternative to defending the proceedings before judgment is delivered.
20 As correctly pointed out by the national court, once a judgment has been delivered and has become enforceable, the defendant can obtain suspension of its enforcement, if suspension is appropriate, only under more difficult circumstances and may also find himself confronted by procedural difficulties. The possibility for a defaulting defendant to defend himself is thus considerably diminished. Such a result would run counter to the purpose of the provision in question.
21 It follows from all the foregoing considerations that recognition in one contracting State of a judgment delivered in default of appearance in another contracting State must be refused where the document which instituted the proceedings was not duly served on the defendant, even if the defendant had notice of the judgment and did not have recourse to the available legal remedies.
Comptoir National Technique Agricole v Ministère de l'agriculture.
Date: 1992-11-12
23 In this connection, it is appropriate to recall that the Court has consistently held that, in order to determine whether a provision of Community law is consonant with the principle of proportionality, it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement (see, in particular, the judgment in Case 266/84 Denkavit France v FORMA [1986] ECR 149, paragraph 17).
25 In those circumstances, as the Court has already intimated, loss of entitlement to the subsidy, which flows from non-compliance with that obligation, is not disproportionate in relation to the objective which the Community has sought to attain (see the judgments in Case C-357/88 Hopermann [1990] ECR I-1669, paragraphs 15 and 16, and in Case C-358/88 Hopermann [1990] ECR I-1687, paragraphs 14 and 15).
Kerafina-Keramische-und Finanz Holding AG and Vioktimatiki AEVE v Hellenic Republic and Organismos Oikonomikis Anasygkrotissis Epicheirisseon AE.
Date: 1992-11-12
16 In this connection, it is appropriate first to recall some of the principles governing the preliminary reference procedure provided for by Article 177 of the EEC Treaty. In the first place, the right to determine the questions to be brought before the Court devolves upon the national court or tribunal alone and the parties to the main proceedings may not change their tenor (see Case 44/65 Hessische Knappschaft v Singer [1965] ECR 965). Secondly, under Article 177 the Court has no jurisdiction either to apply Community law to a specific case or to decide upon the validity of a provision of national law in relation to Community law, as it would be possible for it to do under Article 169 (see the judgment in Case 6/64 Costa v ENEL [1964] ECR 585).
18 Accordingly, it is sufficient to refer to the grounds of those two judgments, and in particular to the operative part of the judgment in Karella and Karellas, according to which
Article 25(1) of the Second Council Directive may be relied upon by individuals against the public authorities before national courts, and
Article 25 in conjunction with Article 41(1) of the Second Directive must be interpreted as meaning that they preclude national rules which, in order to ensure the survival and continued operation of undertakings which are of particular economic and social importance for society as a whole and are in exceptional circumstances by reason of their excessive debt burden, provide for the adoption by administrative act of a decision to increase the company capital, without prejudice to the right of pre-emption of the original shareholders when the new shares are issued.
The third question
Commission of the European Communities v United Kingdom.
Date: 1992-11-17
42 Suffice it to observe that by imposing that condition the United Kingdom is indirectly excluding from the 75% of the crew of a fishing vessel the nationals of other Member States on account of their nationality. The great majority of United Kingdom nationals reside ashore in the United Kingdom and thus automatically satisfy that condition, whereas the nationals of other Member States are obliged in most cases to move their residence to the United Kingdom in order to satisfy the same condition (see judgment in Case C-221/89 Factortame [1991] ECR I-3905, paragraph 32).
Commission of the European Communities v Hellenic Republic.
Date: 1992-11-17
12 It is true that the Court has consistently held that the subject-matter of an application under Article 169 of the Treaty is limited to that defined during the pre-litigation procedure provided for by that article, and that therefore the Commission' s reasoned opinion and the application to the Court must be based on the same complaints (judgment in Case 298/86 Commission v Belgium [1988] ECR 4343).
13 That requirement cannot, however, go so far as to make it necessary that in every event the national provisions mentioned in the reasoned opinion and in the application should be completely identical. Where a change in the legislation occurred between those two phases in the procedure, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has as a whole been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (see the judgments in Case 45/64 Commission v Italy [1965] ECR 857 and in Case C-42/89 Commission v Belgium [1990] ECR I-2821).
20 Those arguments cannot be accepted. As for the first, it is sufficient to state that, as the Court has consistently held, a Member State is guilty of a failure to fulfil its obligations under the Treaty regardless of the frequency or the scale of the circumstances complained of (see the judgment in Case C-209/89 Commission v Italy [1991] ECR I-1575, paragraph 19).
Commission of the European Communities v Kingdom of the Netherlands.
Date: 1992-11-17
12 The Court has consistently held that when, as in this case, an action is brought before the Court under Article 169 of the Treaty alleging failure by a Member State to fulfil its obligations, it is the Commission' s responsibility to prove that the obligation has not been fulfilled and to provide evidence (see Case 141/87 Commission v Italy [1989] ECR paragraphs 15 and 17). The Commission alleges that the Netherlands legislation is defective but nevertheless does not give details of its complaint by reference to that legislation and does not adduce any evidence of a failure to comply with Article 28 of the directive.
17 The Court has consistently held that an application may not be based on complaints other than those set out in the reasoned opinion. It follows that the Commission' s complaint relating to Article 30(1) of the directive must be rejected.
Commission of the European Communities v Ireland.
Date: 1992-11-17
5 In the first place, Article 30 of the Treaty, the provisions of which were expressly reiterated in Regulations No 805/68 and No 827/68, precludes the application to intra-Community trade of national provisions which require, even as a pure formality, import licences or any other similar procedure (judgment in Case 124/81 Commission v United Kingdom [1983] ECR 203, at paragraph 9). In that regard, the exception provided for in Article 36 of the Treaty in respect of the protection of health and life of humans and animals cannot be relied upon, even temporarily, to justify the maintenance in force of such legislation when Community directives provide for the harmonization of the measures necessary to guarantee the protection of animal and human health and establish procedures for checking that they are observed (judgment in Case 251/78 Firma Denkavit Futtermittel GmbH v Minister fuer Ernaehrung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen [1979] ECR 3369, at paragraph 14).
10 With regard to the implementation of directives, the Court has consistently held that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State' s obligations under the Treaty (judgment in Case 168/85, Commission v Italy [1986] ECR 2945, at paragraph 13).
Commission of the European Communities v Ireland.
Date: 1992-11-17
6 As the Court has consistently held in judgments concerning the implementation of directives, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State' s obligations under the Treaty (judgment in Case 168/85 Commission v Italy [1986] ECR 2945, paragraph 13).
Commission of the European Communities v Federal Republic of Germany.
Date: 1992-11-24
14 In Case 228/87 Criminal proceedings against X [1988] ECR 5099, also concerning Directive 80/778, the Court held that derogations from the directive must be interpreted strictly (paragraph 10) and that the term "emergencies" within the meaning of Article 10(1) of the directive must be construed as meaning urgent situations in which the competent authorities are required to cope suddenly with difficulties in the supply of water intended for human consumption (paragraph 14).
20 According to the case-law of the Court (see, in particular, Case 166/82 Commission v Italy [1984] ECR 459, paragraph 16), the scope of an action brought under Article 169 of the Treaty is delimited both by the preliminary administrative procedure provided for by that article and by the form of order sought in the application. The reasoned opinion and the application must be founded on the same grounds and pleas.
35 Having regard to all the foregoing considerations, it should be declared that, by permitting, until 1 January 1991, derogations from Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption in circumstances not envisaged in Article 10(1) of that directive and by not providing the obligation for the Laender to notify permitted derogations in order to ensure compliance with Article 9(1) and Article 10(3) of the directive, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.
Commission of the European Communities v United Kingdom.
Date: 1992-11-25
21 It follows from Article 7(6) of the directive that the Member States must take the steps necessary to ensure that water intended for human consumption at least meets the requirements specified in Annex I.
22 That result had to be achieved within a period of five years from notification of the directive (Article 19), that period being longer than that allowed for implementation of the directive, namely two years from notification (Article 18), in order to enable Member States to satisfy the abovementioned requirements.
23 As the Court stated in its judgment in Case 228/87 Pretura Unificata di Torino v X [1988] ECR 5099 (paragraph 10), the only derogations from the obligation on Member States to ensure that water intended for human consumption conforms to the requirements of the directive are those provided for in Articles 9, 10 and 20. The first of those provisions permits derogations to take account of situations arising from the nature and structure of the ground in the area from which the supply in question comes, as well as situations arising from exceptional meteorological conditions; the second authorizes derogations in the event of emergencies; and, finally, the third provision permits Member States, in exceptional cases and for geographically defined population groups, to submit a special request to the Commission in order to obtain a longer period for compliance with Annex I.
24 The directive therefore requires Member States to ensure that certain results are achieved and, except within the limits of the derogations laid down, they may not rely on special circumstances in order to justify a failure to discharge that obligation.
25 It follows that the defendant' s claim that it took all practicable steps to secure compliance cannot justify, except within the limits of the derogations expressly laid down, its failure to comply with the requirement to ensure that water intended for human consumption at least meets the requirements of Annex I of the directive.
27 As the Court held in its judgment in Commission v Belgium, mentioned above (paragraph 23), a request under Article 20 of the directive for a longer period for complying with Annex I must be made within the period laid down in Article 19 for implementation of the directive. Notification of the derogations in accordance with Article 9 of the directive occurred after 18 July 1985, that is to say after that period had expired. Consequently, it is unnecessary to rule on the request made by the United Kingdom Government.
Commission of the European Communities v Kingdom of Belgium.
Date: 1992-11-25
27 It must therefore be concluded, having regard to the aim of the Directive and to the principle of optimization of protection, that if the Community legislature had intended to prohibit the introduction by the Member States of a higher level of protection than that provided for by the Directive it would have included an express provision to that effect in the Directive.
Commission of the European Communities v Ireland.
Date: 1992-12-02
7 At the hearing Ireland pointed out that the contested regulations had been revoked on 11 March 1992. However, the Court has consistently held (see judgment of 18 March 1992 in Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12) that the subject-matter of an action brought under Article 169 is determined by the Commission' s reasoned opinion, and even when the default has been remedied after the expiry of the time-limit prescribed by the second paragraph of that article, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur as a result of its default towards other Member States, the Community or private parties.
21 Ireland further contends that the contested regulations are justified on the grounds that they advance the achievement of the same objectives as the Community system of fishing quotas, namely safeguarding the populations of coastal areas and industries dependent on fishing against interference with normal conditions of fishing in Irish waters. It also points out that the Court held in its judgment in Case C-216/87 (The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow [1989] ECR 4509, paragraph 24) that the quota system constitutes a derogation from the general rule of equal conditions of access to fishery resources laid down in Article 2(1) of Regulation No 101/76.
24 Suffice it to observe that under international law a vessel has the nationality of the State in which it is registered and that it is for that State to determine in the exercise of its sovereign powers the conditions for the grant of such nationality (see judgment of 24 November 1992 in Case C-286/90 Poulsen [1992] ECR I-6019, paragraphs 13, 14 and 15). The contested Irish regulations cannot, therefore, be justified on the basis of public international law.
Société Générale d'Entreprises Electro-Mécaniques SA (SGEEM) and Roland Etroy v European Investment Bank.
Date: 1992-12-02
13 Secondly, the Bank constitutes a Community body established by the Treaty (Case 110/75 Mills v EIB [1976] ECR 955, paragraph 14). It 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 (Case 85/86 Commission v EIB [1988] ECR 1281, paragraph 29).
14 It follows that any acts and omissions towards the applicants for which the Bank may have been responsible in the implementation of the financing contract in question are attributable to the Community in accordance with the general principles common to the Member States, referred to in the second paragraph of Article 215 of the Treaty.
15 It would be contrary to the intention of the authors of the Treaty if, when it acts through a Community body established by the Treaty and authorized to act in its name and on its behalf, the Community could escape the consequences of the provisions of Article 178 and the second paragraph of Article 215 of the Treaty, the intention of which is to reserve for the Court' s jurisdiction cases involving the non-contractual liability of the Community as a whole towards third parties.
16 The term "institution" employed in the second paragraph of Article 215 of the Treaty must therefore not be understood as referring only to the institutions of the Community listed in Article 4(1) of the Treaty but as also covering, with regard to the system of non-contractual liability established by the Treaty, Community bodies such as the Bank.
17 The Court' s jurisdiction in the present case is not called into question by the terms of Article 180 of the Treaty, the specific provisions of which are not intended to provide an exhaustive list of the cases in which the Court has jurisdiction in actions concerning the Bank (Mills v EIB, paragraphs 16 and 17).
Oleificio Borelli SpA v Commission of the European Communities.
Date: 1992-12-03
9 It should be pointed out that in an action brought under Article 173 of the Treaty the Court has no jurisdiction to rule on the lawfulness of a measure adopted by a national authority.
10 That position cannot be altered by the fact that the measure in question forms part of a Community decision-making procedure, since it clearly follows from the division of powers in the field in question between the national authorities and the Community institutions that the measure adopted by the national authority is binding on the Community decision-taking authority and therefore determines the terms of the Community decision to be adopted.
11 That is so where the competent national authority issues an unfavourable opinion on an application for aid from the Fund. It follows from Article 13(3) of Regulation No 355/77 that a project may receive aid from the Fund only if it is approved by the Member State on whose territory it is to be carried out and that, consequently, where the opinion is unfavourable the Commission can neither follow the procedure for the examination of the project in accordance with the rules laid down in that regulation nor a fortiori review the lawfulness of the opinion thus issued.
12 In those circumstances, any irregularity that might affect the opinion cannot affect the validity of the decision by which the Commission refused the aid applied for.
13 Accordingly, it is for the national courts, where appropriate after obtaining a preliminary ruling from the Court, to rule on the lawfulness of the national measure at issue on the same terms on which they review any definitive measure adopted by the same national authority which is capable of adversely affecting third parties and, consequently, to regard an action brought for that purpose as admissible even if the domestic rules of procedure do not provide for this in such a case.
14 As the Court observed in particular in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, and in Case 222/86 UNECTEF v Heylens [1987] ECR 4097, paragraph 14, the requirement of judicial control of any decision of a national authority reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Mauro Suffritti and others v Istituto Nazionale della Previdenza Sociale.
Date: 1992-12-03
11 It should be noted that the period prescribed for the transposition of Directive 80/987 expired only on 23 October 1983 and that both the declarations of insolvency and the termination of the employment relationships at issue in the main proceedings occurred before the said period had expired.
12 In those circumstances the employees cannot rely on the provisions of the directive in order to set aside the application of certain provisions of the national Law.
13 As the Court has previously held, it is only where a Member State has not correctly implemented a directive upon the expiry of the period prescribed for its implementation that individuals may, upon certain conditions, assert before the national courts rights which they derive directly from the provisions of that directive.
Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc.
Date: 1992-12-16
11 Furthermore, in the abovementioned judgments the Court recognized that the legislation at issue pursued an aim which was justified under Community law. National rules restricting the opening of shops on Sundays reflected certain choices relating to particular national or regional socio-cultural characteristics. It was for the Member States to make those choices in compliance with the requirements of Community law, in particular the principle of proportionality.
15 Appraising the proportionality of national rules which pursue a legitimate aim under Community law involves weighing the national interest in attaining that aim against the Community interest in ensuring the free movement of goods. In that regard, in order to verify that the restrictive effects on intra-Community trade of the rules at issue do not exceed what is necessary to achieve the aim in view, it must be considered whether those effects are direct, indirect or purely speculative and whether those effects do not impede the marketing of imported products more than the marketing of national products.
Ettien Koua Poirrez v Caisse d'allocations familiales de la région parisienne, substituée par la Caisse d'allocations familiales de la Seine-Saint-Denis.
Date: 1992-12-16
10 As the Court has consistently held, Articles 7 and 48 of the Treaty may be invoked only where the case in question comes within the area to which Community law applies, which in this case is that concerned with freedom of movement for workers (see inter alia Joined Cases 35/82 and 36/82 Morson and Jhanjan v State of the Netherlands [1982] ECR 3723, paragraphs 15 and 16).
11 Similarly, the regulations adopted to implement those provisions cannot be applied to cases which have no factor linking them with any of the situations governed by Community law and all elements of which are purely internal to a single Member State (see Case 147/87 Zaoui v Cramif [1987] ECR 5511, paragraph 15, and Case C-153/91 Petit v Office National des Pensions [1992] ECR I-4973, paragraph 8).
12 Consequently, Community legislation regarding freedom of movement for workers cannot be applied to the situation of workers who have never exercised the right to freedom of movement within the Community.