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J/98/21

Proceedings of the court of justice and the Court of first instance of the european Communities week of 21 to 25 september 1998

I. Judgments

Court of Justice

Case C-61/97

Foreningen af danske Videogramdistributører v Laserdisken

Free movement of goods

Case C-185/97

Belinda Jane Coote v Granada Hospitality Ltd

Social policy

Case C-319/96

Brinkmann Tabakfabriken GmbH v Skatteministeriet

Taxation

Case C-413/96

Skatteministeriet v Sportgoods A/S

Free movement of goods

Case C-35/97

Commission of the European Communities v French Republic

Freedom of movement for persons

Case C-132/96

Antonio Stinco and Ciro Panfilo v Istituto nazionale della previdenza sociale (INPS)

Freedom of movement for persons

Case C-76/97

Walter Tögel v Niederösterreichische Gebietskrankenkasse

Company law

Case C-111/97

EvoBus Austria GmbH v Niederösterreichische Verkehrsorganisations G.m.b.H. (Növog)

Company law

Court of First Instance

Case T-112/95

Peter Dethlefs and 38 other farmers v Council of the European Union and Commission of the European Communities

Agriculture

II. Opinions

Case C-159/97

Trasporti Castelli Spedizioni Internazionali SpA v Hugo Trumpy SpA

Case C-396/97

Commission of the European Communities v Italian Republic

Case C-181/96

Georg Wilkens v Landwirtschaftskammer Hannover

Case C-397/97

Commission of the European Communities v Italian Republic

Joined Cases C-127/96, C-229/96 to C-74/97, ainsi que Joined Cases C-173/96 to C-247/96

Francisco Hernández Vidal, S.A. v Prudencia Gómez Pérez and Others

Friedrich Santner v Hoechst Aktiengesellschaft

Mercedes Gómez Montaña v Claro Sol, S.A. et Red Nacional de Ferrocarriles Españoles (R.E.N.F.E.)

Francisca Sánchez Hidalgo and Others v Asociación de Servicios Aser et Sociedad Cooperativa Minerva

Horst Ziemann v Fa. Ziemann Sicherheit GmbH et Fa. Horst Bohn Sicherheitsdienst

Case C-347/97

Commission of the European Communities v Kingdom of Belgium

Case C-103/97

J. Köllesperger Gesellschaft mbH & Co KG and Others v Gemeindeverband Bezirkskrankenhaus Schwaz

Case C-250/97

Dansk Metalarbejderforbund, agissant pour John Lauge e.a. / Lønmodtagernes Garantifond

Case C-256/97

D.M. Transport S.A.

III. New cases

Court of Justice

IV. Notice

TWO NEW JUDGES APPOINTED TO THE COURT OF FIRST INSTANCE OF THE EC

FORMAL SITTING OF 17 SEPTEMBER 1998

Administrative assistants - Proof-readers of Finnish mother tongue

(Open Competition No EUR/B143)

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

AND

THE COMMISSION OF THE EUROPEAN COMMUNITIES

34

Administrative assistants - Proof-readers of Swedish mother-tongue

Open Competition No EUR/B/144

The Court of Justice of the European Communities

and

the European Commission

Conference interpreters of German mother-tongue (m/f)

Open competition No CJ/LA/28the Court of Justice of the European Communities in Luxembourg

LAWYER-LINGUISTS (m/f) of English mother-tongue

(Open competition No CJ/LA/29)

LAWYER-LINGUISTS (m/f) of Greek mother-tongue

(Open competition No CJ/LA/30)

37

1.

JUDGMENTS

Court of Justice

Case C-61/97

Foreningen af danske Videogramdistributører v Laserdisken

Free movement of goods

22 September 1998

Preliminary ruling

(Copyright and related rights · Videodisc rental)

(Full Court)

By order of 7 February 1997, Retten i Ålborg (Court of First Instance, Ålborg) referred to the Court for a preliminary ruling two questions on the interpretation of Articles 30, 36, 85 and 86 of the EC Treaty and of Council Directive 92/100/EEC of 19 November 1992 ('the Directive').

Those questions were raised in proceedings between Foreningen af danske Videogramdistributører (Association of Danish Video Distributors, 'the FDV'), acting for Egmont Film A/S and Others, and the Danish undertaking Laserdisken, which specialises in marketing films on laser discs, concerning the offer of such products imported from the United Kingdom for rental in Denmark.

By its two questions, the national court is asking the Court of Justice whether it is contrary to the articles of the Treaty referred to or to the Directive for the holder of an exclusive rental right to prohibit copies of a film from being offered for rental in a Member State even where offering those copies for rental has been authorised within another Member State.

It should be noted at the outset that, while the order for reference includes Articles 85 and 86 of the Treaty among the Community provisions interpretation of which is requested by the national court, it gives no explanation of the reasons for which it raised the question of the effect of those articles in connection with the matters of fact and law in the main proceedings. In the absence of such information the national court has failed to put the Court in a position to give an interpretation of those articles which could be of use to it.

In those circumstances, the questions referred by the national court must be regarded as inadmissible in so far as they concern the interpretation of Articles 85 and 86 of the Treaty. As a result, those questions can be considered only with regard to the interpretation of Articles 30 and 36 of the Treaty and the Directive.

As the Court pointed out in its judgment in Case C-200/96 Metronome Musik v Music Point Hokamp [1998] ECR I-1953, the principle of exhaustion of distribution rights where copyright works are offered for sale by the rightholder or with his consent is expressed in the settled case-law according to which, whilst Article 36 of the EC Treaty allows derogations from the fundamental principle of the free movement of goods on grounds of the protection of industrial and commercial property, such derogations are allowed only to the

extent to which they are justified by the fact that they safeguard the rights which constitute the specific subject-matter of that property. However, the exclusive right guaranteed by the legislation of a Member State on industrial and commercial property is exhausted when a product has been lawfully distributed on the market in another Member State by the actual proprietor of the right or with his consent.

However, the release into circulation of a picture and sound recording cannot, by definition, render lawful other acts of exploitation of the protected work, such as rental, which are of a different nature from sale or any other lawful act of distribution. Just like the right to present a work by means of public performance, rental right remains one of the prerogatives of the author and producer notwithstanding sale of the physical recording.

The same reasoning must be followed as regards the effects produced by the offer for rental. The exclusive right to hire out various copies of the work contained in a video film can, by its very nature, be exploited by repeated and potentially unlimited transactions, each of which involves the right to remuneration. The specific right to authorise or prohibit rental would be rendered meaningless if it were held to be exhausted as soon as the object was first offered for rental.

The Directive draws a distinction between the specific rental and lending right, referred to in Article 1, and the distribution right, governed by Article 9 and defined as an exclusive right to make one of the objects in question available to the public, principally by way of sale. Whereas lending right is not exhausted by the sale or any other act of distribution of the object, distribution right, by contrast, is exhausted upon the first sale in the Community by the rightholder or with his consent.

Thus the Directive expressly precludes the possibility that lending right, unlike distribution right, can be exhausted by any act of distribution of the object in question.

Accordingly, it follows both from the interpretation of Articles 30 and 36 of the Treaty, as regards the protection of copyright, and from the interpretation of the Directive that the exclusive right to authorise or prohibit the rental of a film is not exhausted when it is first exercised in one of the Member States of the Community. The exercise of such a right in circumstances such as those described in the order for reference is therefore not contrary to those provisions.

The Court ruled:

'It is not contrary to Articles 30 and 36 of the Treaty or to Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property for the holder of an exclusive rental right to prohibit copies of a film from being offered for rental in a Member State even where the offering of those copies for rental has been authorised in the territory of another Member State.'

Advocate General A. La Pergola delivered his Opinion at the sitting of the Full Court on 26 May 1998.

Not available

Case C-185/97

Belinda Jane Coote v Granada Hospitality Ltd

Social policy

22 September 1998

Preliminary ruling

(Council Directive 76/207/EEC · Refusal of an employer to provide references for a former employee who was dismissed)

(Full Court)

By order of 20 November 1996, the Employment Appeal Tribunal, London, referred to the Court for a preliminary ruling two questions on the interpretation of Council Directive 76/207/EEC of 9 February 1976.

Those questions were raised in proceedings between Ms Coote and her former private-sector employer, Granada Hospitality Ltd (hereinafter 'Granada'), concerning Granada's refusal to provide references to potential employers of Ms Coote.

The dispute in the main proceedings

Ms Coote was employed by Granada from December 1992 to September 1993. In 1993 she brought a claim for sex discrimination against Granada, alleging that she had been dismissed because of pregnancy. That claim was settled, and Ms Coote's employment with Granada ended by mutual agreement on 7 September 1993.

In July 1994 Ms Coote, seeking new employment, had recourse to two employment agencies. She considers that her difficulties in finding employment were due to Granada's failure to provide a reference to one of the employment agencies; Granada disputes this.

Ms Coote then brought a further claim against Granada claiming that she had been victimised by Granada's refusal to supply a reference to the employment agency.

The Employment Appeal Tribunal is, however, uncertain whether, having regard to the Directive, the United Kingdom legislation ought not to be interpreted as prohibiting not only retaliatory measures which take the form of detrimental conduct during the employment relationship but also those which are decided on or whose harmful effects are produced after the employment has ended.

However, it has been consistently held that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. In applying national law, in particular legislative provisions which, as in the present case, were specially introduced in order to implement the directive, the national court is required to interpret its national law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the third paragraph of Article 189 of the Treaty.

In those circumstances, the questions put by the national court must be understood as seeking to ascertain, for the purpose of interpreting national provisions transposing the Directive, whether the Directive requires Member States to introduce into their national legal systems such measures as are necessary to ensure

judicial protection for workers whose employer, after the end of the employment relationship, refuses to provide references as a reaction to proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive.

By virtue of Article 6 of the Directive, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to interfere with the equal treatment for men and women laid down in the Directive. It is for the Member States to ensure effective judicial control of compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the Directive provides.

The principle of effective judicial control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.

Having regard to the objective of the Directive, which is to arrive at real equality of opportunity for men and women, and to the fundamental nature of the right to effective judicial protection, it is not, in the absence of a clear indication to the contrary, to be inferred from the Directive that the legislature's intention was to limit the protection of workers against retaliatory measures decided on by the employer solely to cases of dismissal, which, although an exceptionally serious measure, is not the only measure which may effectively deter a worker from making use of the right to judicial protection. Such deterrent measures include inter alia those which, as in the present case, are taken as a reaction to proceedings brought against an employer and are intended to obstruct the dismissed employee's attempts to find new employment.

The Court ruled:

'Article 6 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions requires Member States to introduce into their national legal systems such measures as are necessary to ensure judicial protection for workers whose employer, after the employment relationship has ended, refuses to provide references as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of that directive.'

Advocate General J. Mischo delivered his Opinion at the sitting of the Full Court on 2 April 1998.

He proposed, finally, that the Court should phrase its answer to the questions on which the Employment Appeal Tribunal seeks a preliminary ruling as follows:

  • (1) The provision of references for employees by an employer is covered by the prohibition of any discrimination on grounds of sex laid down by Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. In that connection, it is irrelevant
  • whether the references were in fact refused during the period of employment or after its termination, or
  • whether the employer decided on the refusal before or after the termination of the period of employment.
  • (2) Directive 76/207 does not, however, require Member States to introduce into their national legal systems such measures as are necessary to enable employees to bring legal proceedings against former employers who have refused to provide references for them, where that refusal constitutes retaliation for legal proceedings brought by the employee against the employer with a view to enforcing compliance with the requirement of equal treatment for men and women.

Case C-319/96

Brinkmann Tabakfabriken GmbH v Skatteministeriet

Taxation

24 September 1998

Preliminary ruling

(Tax on the consumption of manufactured tobacco · Directive 79/32/EEC · Cigarettes · Smoking tobacco · Concept · Non-contractual liability of a Member State for breach of Community law)

(Second Chamber)

By an order of 4 September 1996, the Østre Landsret (Danish Eastern Regional Court) referred to the Court for a preliminary ruling a number of questions on the interpretation of Articles 3(1) and 4(1) of the Second Council Directive (79/32/EEC) of 18 December 1978 (hereinafter 'the Second Directive'), and of the principle of a State's liability for damage caused to individuals by a breach of Community law attributable to that State.

Those questions have been raised in proceedings between Brinkmann Tabakfabriken GmbH, whose registered office is in Bremen (Germany), a producer of manufactured tobacco, and Skatteministeriet (the Danish Ministry of Fiscal Affairs) in relation to the levying of taxes applicable to manufactured tobaccos on a particular tobacco product manufactured by Brinkmann and sold under the designation 'Westpoint' and, more particularly, in relation to the question whether Westpoint should be taxed as a cigarette or as smoking tobacco, which would result in a lower rate.

The first question

First of all, the Second Directive, already contained a precise definition of cigarettes stating their three distinctive features to be as follows: (a) they are rolls of tobacco (b) which are capable of being smoked as they are and (c) which are not cigars or cigarillos.

It is common ground that a product such as Westpoint exhibits the first and third characteristics. It does not, however, exhibit the second because the roll of tobacco at issue cannot be smoked as it is but must first be inserted into a cigarette-paper tube or wrapped in normal cigarette paper.

A product of the kind at issue in the main proceedings thus falls within the scope of Article 4(1) of the Second Directive, which defines smoking tobacco. The rolls of tobacco at issue here in fact consist of tobacco which has been cut and is capable of being smoked without further industrial processing.

The second, third and fourth questions

By its second, third and fourth questions, the Østre Landsret is essentially asking whether a Member State whose authorities, in interpreting Articles 3(1) and 4(1) of the Second Directive, erroneously classified a product such as that at issue in these proceedings as a cigarette and did not suspend the operation of the decision adopted, is required under Community law to compensate the manufacturer for the damage sustained by the latter as a result of the erroneous decision.

In this case, there is no disputing that Articles 3(1) and 4(1) of the Second Directive which contain the definitions of cigarettes and smoking tobacco were not properly transposed into national law, as the competent Minister authorised by the relevant law to lay down the necessary provisions has not adopted any rule of law in implementation thereof.

However, it must be emphasised that there is no direct causal link in this case between the breach of Community law and the damage allegedly suffered by Brinkmann. Indeed, the Danish authorities gave immediate effect to the relevant provisions of the Second Directive containing precise definitions of tobacco products. Accordingly, the fact that the definitions in the Second Directive were not implemented by ministerial decree does not in itself give rise to liability on the part of the State.

It remains to be determined whether the Danish authorities committed a sufficiently serious breach of the relevant provisions of the Second Directive, having regard to the degree of clarity and precision of those provisions.

In this case, they did not. Indeed, Westpoint does not correspond exactly to either of the definitions in the directive. Rather, the product is one which did not exist at the time when the Second Directive was adopted and which sought to give consumers the advantages of a cigarette while benefiting from the lower tax applicable to smoking tobacco. In those circumstances, the interpretation given by the Danish authorities to the relevant definitions was not manifestly contrary to the wording of the Second Directive or in particular to the aim pursued by it.

The Court ruled:

  • '1. Articles 3(1) and 4(1) of the Second Council Directive (79/32/EEC) of 18 December 1978 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, in the version in force in May 1990, are to be interpreted as meaning that rolls of tobacco wrapped in porous cellulose which have to be inserted into cigarette-paper tubes to be smoked must be deemed to be smoking tobacco within the meaning of Article 4(1) of that directive.
  • 2. A Member State whose authorities, in interpreting Articles 3(1) and 4(1) of the Second Directive 79/32/EEC, erroneously classified a product such as that at issue in this case as a cigarette and did not suspend the operation of the decision adopted, is not bound

by Community law to compensate the manufacturer for the damage sustained by the latter as a result of that erroneous decision.'

Advocate General F.G. Jacobs delivered his Opinion at the sitting of the Second Chamber on 22 January 1998.

He was of the opinion that the questions referred by the Østre Landsret should be answered as follows:

  • (1) A product consisting of a roll of tobacco wrapped in porous cellulose which cannot be smoked as it is but must first be inserted into a cigarette-paper tube or wrapped in ordinary cigarette paper fell to be classified as smoking tobacco under Article 4(1) of Council Directive 79/32/EEC in the version in force on 14 May 1990.
  • (2) A Member State whose authorities, in applying the definitions in Directive 79/32, mistakenly classified such a product as a cigarette under Article 3(1) of the Directive does not incur liability by virtue of Community law to repair any loss or damage resulting from the mistaken classification, unless in similar circumstances such liability would arise in respect of a breach of national law.

Case C-413/96

Skatteministeriet v Sportgoods A/S

Free movement of goods

24 September 1998

Preliminary ruling

(Customs duty · Constitution of a customs debt · Post-clearance recovery of import duties · Remission of import duties)

(Fifth Chamber)

By decision of 20 December 1996, the Højesteret (Danish Supreme Court) referred for a preliminary ruling three questions concerning the interpretation of Article 2(1) of Council Regulation (EEC) No 1697/79 of 24 July 1979 ('the regulation in issue') and on the legal effect of a decision delivered by the Commission following consultation with the Customs Code Committee.

Those questions have arisen in a dispute between Skatteministeriet (the Danish Ministry of Fiscal Affairs) and Sportgoods A/S, a company incorporated under Danish law, concerning the post-clearance recovery of customs duties on imports of five consignments of football boots from Thailand.

The first and second questions

By its first and second questions, the Højesteret is asking in substance whether Article 2(1) of the regulation in issue, which was applicable at the time of the facts in the main proceedings, is to be construed as meaning that, where a post-clearance inspection has revealed an error in the tariff classification of goods indicated in a declaration for release into free circulation, and where the levying of customs duties on products covered by the heading under which those goods ought to have been classified was suspended at the date on which that declaration was accepted but had been re-established when the error was detected, the factual and legal situation to be taken into account by the customs authorities in order to recalculate the amount of customs duty legally due is that prevailing when the declaration was accepted or when the error in tariff classification was discovered.

The operative date for determining the amount of the customs debt

In principle, when the customs authorities discover, in the course of an inspection, an error in the tariff classification of goods indicated in a declaration of release for free circulation, they must recalculate, in the light of the new information at their disposal, the amount of customs duties legally due at the date when that declaration was accepted.

The application of the rules governing generalised tariff preferences

It is true that a case such as the present concerns simply the reclassification of a quantity of football boots which, whether under the subheading mistakenly indicated in the declaration for release into free circulation or under the correct subheading, were entitled to a tariff suspension at the time when that declaration was accepted.

However, the problem should be viewed rather in the context of the overall scheme of the system of tariff suspensions in question, which requires the strictest possible adherence to the ceilings established.

If it were to be accepted that ceilings may be exceeded retroactively where goods are reclassified following the discovery of an error by the importer in the tariff classification of goods after the ceiling provided for the subheading under which the goods should have been classified has been reached and the levying of customs duties on imports of the goods in question has been re-established, that would have to be accepted irrespective of the quantity and value of the goods in question and irrespective of whether, at the time when the declaration was accepted, a tariff suspension applied to both of the subheadings concerned or only to one of them.

Such an interpretation would negate the effectiveness of both the regulation establishing the tariff ceilings and that re-establishing the levying of customs duties. Furthermore, the fact that a request could be made for the ceilings to be exceeded retroactively could give rise to abuse.

It follows that if, at the time when the amount of customs duty is being recalculated, the tariff ceiling has been reached and the levying of customs duties has been re-established, the imports can no longer benefit from the tariff suspension.

The application of the rules governing generalised tariff preferences

Where, after recalculating the amount of the customs debt on the basis of the rates applicable on the date when the declaration for release into free circulation was accepted, the customs authorities find that the imports in question can no longer benefit from tariff suspension, the customs duties thus recalculated are legally due.

To the extent that the person liable has not been required to pay those customs duties, the customs authorities must, in accordance with the provisions of the regulation in issue, take steps to recover any uncollected duties.

The third question

According to Skatteministeriet, the Commission, in a decision of 18 July 1994, implicitly ruled that there was a legal basis for post-clearance recovery of the customs duties in question; that decision, it claims, is binding on national courts, which cannot therefore hold that there is no such legal basis.

Here, it is sufficient to note, first, that the Commission, as it points out, did not express a view in its decision of 18 July 1994 as to the existence or otherwise of a legal basis for effecting post-clearance recovery of the customs duties concerned under the regulation in issue.

Second, the obligation on the customs authorities to take action to recover uncollected customs duties derives from the regulation in issue.

The Court ruled:

  • '1. Article 2(1) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties must be construed as meaning that, where a post-clearance inspection has revealed an error in the tariff classification of goods indicated in a declaration for release into free circulation, and where the levying of customs duties on products covered by the heading under which those goods ought to have been classified was suspended at the date on which that declaration was accepted but had been re-established when the error was detected, the customs authorities must not take account of that suspension in order to recalculate the amount of the customs duties legally due on the date on which the declaration was accepted.
  • 2. When the Commission, after consultation with the Customs Code Committee, has delivered a decision addressed to a Member State holding that there was, in a specific case, no justification for granting remission of import duties pursuant to the provisions of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, and when that decision does not contain any legal or factual indication relating to the legal basis for effecting post-clearance recovery of the import duties concerned under Regulation No 1697/79, a national court may rule on the latter question, having recourse, if appropriate, to the procedure under Article 177 of the EC Treaty.'

Advocate General S. Alber delivered his Opinion at the sitting of the Fifth Chamber on 16 December 1997.

Not available

Case C-35/97

Commission of the European Communities v French Republic

Freedom of movement for persons

24 September 1998

(Failure to fulfil obligations · Article 48 of the EC Treaty · Unemployment benefits · Award of supplementary retirement pension points · Conditions of dismissal · Article 7 of Regulation (EEC) No 1612/68 · Frontier workers)

(Fifth Chamber)

By application lodged at the Court Registry on 24 January 1997 the Commission of the European Communities brought an action for a declaration that, by excluding frontier workers residing in Belgium from qualifying for supplementary retirement pension points after being placed in early retirement, the French Republic has failed to fulfil its obligations under Article 48(2) of the EC Treaty and Article 7 of Regulation (EEC) No 1612/68 of the Council.

In France, in addition to the general old-age insurance scheme, there are supplementary retirement pension schemes established pursuant to collective agreements concluded by both sides of industry. Those schemes are financed by contributions paid by both employers and employees to the institution which manages the scheme. In terms of Article L 731-5 of the Social Security Code, membership of one of the supplementary schemes is compulsory for employees.

Title IV of the General Agreement of 24 July 1979 for the welfare of employees of steel companies in eastern and northern France affected by reorganisation ('the Agreement') lays down, the welfare scheme applicable to 'employees aged 55 or over who are placed in early retirement'.

By letter of 5 October 1993, the Commission called upon the French Government to submit to it, within a period of two months, its observations on the question whether the Agreement might be incompatible with Article 48(2) of the Treaty and Article 7 of Regulation No 1612/68.

The French Government replied in which it reiterated its view that the provisions of the Agreement were compatible with Community law.

The Commission considers that the Agreement infringes Article 48(2) of the Treaty and Article 7(1) of Regulation No 1612/68, in that it treats national workers differently from frontier workers residing in Belgium as regards the terms of dismissal applicable to them. Whilst workers resident in France aged 55 or over who are placed in early retirement are granted concessionary points until they reach normal retirement age, that advantage is not granted to persons in the same situation who reside in Belgium.

The Court has held, in paragraphs 19 and 20 of its judgment of 16 January 1992 in Commission v France, that the supplementary retirement pension schemes introduced under agreements concluded by the competent authorities with trade or inter-trade bodies, trade-union organisations or individual undertakings or under collective agreements concluded by both sides of industry, membership of which has been rendered compulsory by Article L 731-5 of the Social Security Code, do not constitute legislation within the meaning of the first subparagraph of Article 1(j) of Regulation No 1408/71.

It follows that those schemes · together with the system for the validation of concessionary points which forms part thereof · are not covered by Regulation No 1408/71, so that they cannot be assessed in the light of the provisions of that regulation.

By contrast, the system of validation, which forms an integral part of the advantages granted to workers in the sector concerned upon their being placed in early retirement, constitutes one of the conditions applicable to their dismissal, within the meaning of Article 7(1) of Regulation No 1612/68. In that regard, Article 7(4) of that regulation provides that any clause of a collective agreement concerning conditions of dismissal is null and void in so far as it lays down discriminatory conditions in respect of workers who are nationals of other Member States.

Unless it is objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage.

That is the position as regards the residence condition laid down by the Agreement in relation to the award of concessionary points, which can more easily be fulfilled by French workers · most of whom reside in France · than by workers from other Member States.

The application of Article 7(1) of Regulation No 1612/68 to the present case cannot be precluded by the fact that the concessionary points system benefits persons whose contract of employment has terminated. Workers are guaranteed certain rights linked to their status as such, including those referred to in Article 7(1) of Regulation No 1612/68 concerning conditions of dismissal, even when they are no longer in an employment relationship.

As regards the principle of the protection of legitimate expectations, neither the fact that the Agreement was concluded nearly 20 years ago, nor the fact that the French authorities have since then regarded the different treatment of frontier workers residing in Belgium as compatible with Community law nor the fact that this judgment may have significant financial implications for the French Republic eliminates the discriminatory nature of the concessionary points system established by the Agreement.

In view of the real doubt as to the requirements of Community law which it considers characterised the situation in issue at the time, the French Government requested the Court at the hearing to limit the temporal effects of its judgment should the Court find the provisions of the Agreement incompatible with Community law.

In the present case, there is nothing to justify departure from the principle that interpretative judgments are to have retroactive effect.

The present case concerns the application of the principle of non-discrimination, which is enshrined both in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68. At the time when the Agreement was concluded, the case-law clearly established, beyond doubt, that this principle prohibited all covert forms of discrimination and that criteria such as the place of origin or residence of a worker may, according to the circumstances, be tantamount, as regards their practical effect, to unlawful discrimination on the grounds of nationality.

Furthermore, the financial consequences which may ensue for a State from a judgment of the Court have never justified in themselves limiting its effects. To limit the effects of a judgment solely on the basis of such considerations would considerably diminish the judicial protection of the rights which individuals have under Community law.

The Court:

  • '1. Declares that, by excluding frontier workers residing in Belgium from qualifying for supplementary retirement pension points after being placed in early retirement, the French Republic has failed to fulfil its obligations under Article 48(2) of the EC Treaty

and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community;

2. Orders the French Republic to pay the costs.'

Advocate General S. Alber delivered his Opinion at the sitting of the Fifth Chamber on 26 March 1998.

Not available

Case C-132/96

Antonio Stinco and Ciro Panfilo v Istituto nazionale della previdenza sociale (INPS)

Freedom of movement for persons

24 September 1998

Preliminary ruling

(Old-age pension · Calculation of the theoretical amount of a benefit · Inclusion of the amount necessary to attain the statutory minimum pension)

(Sixth Chamber)

By order of 4 April 1996, the Pretura Circondariale di Roma (Magistrate's Court, Rome) referred to the Court for a preliminary ruling a question on the interpretation of Article 46(2)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (hereinafter referred to as 'Regulation No 1408/71'), as in turn amended by Council Regulation (EEC) No 1247/92 of 30 April 1992 and by Council Regulation (EEC) No 1248/92 of 30 April 1992.

That question was raised in proceedings between Antonio Stinco and Ciro Panfilo ('the claimants'), who are Italian nationals, and the Istituto Nazionale della Previdenza Sociale ('the INPS') in relation to the refusal by the INPS to take into account the amount necessary to attain the minimum pension set by the INPS when calculating the old-age pension under Italian law.

By its question, the national court is essentially asking whether Article 46(2)(a) of Regulation No 1408/71 must be interpreted as requiring the competent institution, when determining the theoretical amount of the pension on the basis of which the pro rata pension is calculated, to take into account a supplement intended to bring the pension to the level of the statutory minimum.

In this case, however, the INPS and the Austrian Government argue that, since the supplement provided for under Italian law amounts to a special non-contributory benefit, under Article 4(2a) of Regulation No 1408/71 as amended by Regulation No 1247/92, it cannot, under Article 10a, be taken into account in the determination of the theoretical amount of an individual's pension under Article 46(2)(a).

In this respect, it should be noted that, under Article 10a of Regulation No 1408/71 as amended by Regulation No 1247/92, the special non-contributory benefits set out in Annex IIa of Regulation No 1408/71 are not transferable to Member States other than the Member State in which the worker resides.

The possibility of exporting a benefit such as the supplement provided for under Italian law is not in any way connected with the question of determining the theoretical amount of a pension.

It follows that a benefit such as that at issue in the main proceedings cannot be considered to be excluded from the scope of Article 46 of Regulation No 1408/71 by reason of the adoption of Article 10a.

The INPS and the Swedish Government further claim that Article 50 of Regulation No 1408/71 is the sole provision intended to guarantee a minimum income to pensioners and that national legislation setting a minimum pension should only be taken into account in the circumstances set out in Article 50.

In this respect, it must be noted that, as the Court pointed out in its judgment in Browning (Case 22/81), the method of calculation referred to in Article 46(2)(a) of Regulation No 1408/71, which relates to the determination of the theoretical amount of a pension, is distinct from the situation referred to in Article 50, which relates to the award of a supplementary payment in excess of the minimum payable in application of the normal rules under a particular national legal system.

It follows that a statutory minimum benefit set by a Member State must be taken into account in calculating the theoretical amount referred to in Article 46(2)(a) of Regulation No 1408/71.

The Court ruled:

'Article 46(2)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended in turn by Council Regulation (EEC) No 1247/92 of 30 April 1992 and by Council Regulation (EEC) No 1248/92 of 30 April 1992, must be interpreted as requiring the competent institution, in determining the theoretical amount of the pension on which the calculation of the pro rata pension is based, to take into account a supplement intended to bring the pension to the level of the statutory minimum.'

Advocate General F.G. Jacobs delivered his Opinion at the sitting of the Sixth Chamber on 25 September 1997.

He considered that the question referred by the Pretura, Rome, should be answered as follows:

'Where (i) the legislation of a Member State confers entitlement to a supplement to increase to a specified minimum the amount of an old-age pension within the meaning of Chapter 3 of Title III of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (ii) the amount of the pension to which a person could have laid claim if he had completed in that Member State all periods of insurance and/or residence under the legislation of the Member States to which he was subject would be less than the specified minimum so that the person would be entitled to that supplement, the theoretical amount referred to in Article 46(2)(a) of the Regulation is the amount of the pension as

supplemented to that specified minimum notwithstanding the fact that the supplement is listed in Annex IIa to the Regulation.'

Case C-76/97

Walter Tögel v Niederösterreichische Gebietskrankenkasse

Company law

24 September 1998

Preliminary ruling

(Public service contracts · Direct effect of a directive not transposed into national law · Classification of services for the transport of patients)

(Sixth Chamber)

By order of 5 December 1996, the Bundesvergabeamt (Federal Procurement Office) referred to the Court for a preliminary ruling four questions on the interpretation of Council Directive 89/665/EEC of 21 December 1989, and of Council Directive 92/50/EEC of 18 June 1992.

Those questions have been raised in proceedings between Mr Tögel and the Niederösterreichische Gebietskrankenkasse (Sickness Insurance Fund for Lower Austria) concerning the procedure for the award of public contracts for the transport of injured and sick persons.

The first and second question

By its first and second questions, the national court is asking essentially whether Article 1(1) and (2), Article 2(1), or any other provisions of Directive 89/665, must be interpreted as meaning that, if Directive 92/50 has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction in regard to procedures for the award of public supply and public works contracts established under Article 2(8) of Directive 89/665 also have jurisdiction in regard to appeals in connection with procedures for the award of contracts for services.

In its judgment of 17 September 1997 in Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, the Court went on to declare that, although Article 41 of Directive 92/50 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts, it does not indicate which national bodies are to be the competent bodies for this purpose or whether these bodies are to be the same as those which the Member States have designated in the field of public works contracts and public supply contracts.

In view of those circumstances, the Court reiterated, in its judgment in Dorsch Consult, that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts.

It followed that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the

light of the wording and purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty.

In the judgment in Dorsch Consult, the Court reiterated that, if the relevant domestic provisions cannot be interpreted in conformity with Directive 92/50, the persons concerned, using the appropriate domestic law procedures, may claim compensation for the damage incurred owing to the failure to transpose the directive within the time prescribed.

The third question

The first part of the third question

By the first part of the third question the national court asks whether services consisting in the transport of injured and sick persons with a nurse in attendance come within Annex I A or Annex I B to Directive 92/50, to which Article 10 of that directive refers.

It should be observed that, according to Article 1(3) of Council Regulation No 3696/93 of 29 October 1993 on the statistical classification of products by activity (CPA) in the European Economic Community, the classification provided for in the CPA must be used for statistical purposes and that, according to point

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Vocabulary (CPV) for describing the subject-matter of public contracts, the CPV is intended only to be used for the drawing up of notices and other communications published in connection with public tendering procedures.

It follows that the designations of services listed in Category No 2 of Annex I A and Category No 25 of Annex I B cannot be interpreted in the light of the CPA or the CPV.

On the other hand, the seventh recital in the preamble to Directive 92/50 clearly indicates that the reference in Annexes I A and I B to the CPC nomenclature (common product classification) of the United Nations is binding.

Consequently, CPC reference number 93 appearing in Category No 25 (Health and social services) in Annex I B, clearly indicates that this category relates solely to the medical aspects of health services governed by a public contract such as the one at issue in the main proceedings, to the exclusion of the transport aspects, which come under Category No 2 (Land transport services), which have the CPC reference number 712.

The second part of the third question

By the second part of the third question the national court is essentially seeking to ascertain whether the provisions of Titles I to VI of Directive 92/50 may be relied on by individuals before national courts.

The question is whether the relevant provisions of Directive 92/50 appear to be, as regards their content, unconditional and sufficiently precise to be relied on by an individual as against the State.

It should be observed first of all here that the provisions of Title I, concerning the matters and persons covered by the directive, and of Title II, on the procedures applicable to contracts for the services listed in Annexes I A and I B, are unconditional and sufficiently precise to be relied on before a national court.

The detailed provisions of Titles III to VI of the directive, on the choice of award procedures and the rules applicable to competitions, common technical and advertising rules, and participation and selection and award criteria, are, subject to exceptions and qualifications which are apparent from their terms, unconditional and sufficiently clear and precise to be relied on by service providers before national courts.

The fourth question

The fourth question must be construed as seeking to ascertain whether Community law requires an awarding authority of a Member State to intervene at the request of an individual in existing legal situations concluded for an indefinite period or for several years in a manner not in conformity with Directive 92/50.

An individual may rely before a national court on the provisions of Directive 92/50 if they are unconditional and sufficiently precise, when an awarding body of a Member State has awarded a public service contract in breach of those provisions, provided, however, that the award was made after expiry of the transposition period provided for by that directive.

In this instance, the file shows that the framework contracts at issue in the main proceedings were entered into in 1984, that is to say even before adoption of the directive.

The Court ruled:

  • '1. Neither Article 1(1) and (2), Article 2(1) nor any other provision of Council Directive 89/665/EEC of 21 December 1989, on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, may be interpreted as meaning that, if Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction to review procedures for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89/665, may also hear appeals concerning procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts.
  • In circumstances such as those arising in the present case, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.
  • 2. Services consisting in the transport of injured and sick persons with a nurse in attendance come within both Annex I A, Category No 2, and Annex I B, Category No 25, to Directive 92/50, so that a contract for those services is covered by Article 10 of Directive 92/50.
  • 3. The provisions of Titles I and II of Directive 92/50 may be relied on directly by individuals before national courts. As regards the provisions of Titles III to VI, these may also be relied on by an individual before a national court if it is clear from an individual examination of their wording that they are unconditional and sufficiently clear and precise.
  • 4. Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal situations concluded for an indefinite period or for several years where those situations came into being before expiry of the period for transposition of Directive 92/50.'

Advocate General N. Fennelly delivered his Opinion at the sitting of the Sixth Chamber on 2 April 1998.

He recommended that the Court respond as follows to the questions referred by the Bundesvergabeamt:

  • (1) It does not follow from Article 41 of the Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts that, where that directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In circumstances such as those arising in the present case, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.
  • (2) The contractual services at issue comprise services some of which are to be classified as services coming under Annex I B, Category No 25 to Directive 92/50 ('Health and Social Services') and the remainder of which are to be classified under Annex I A, Category No 2 ('Land transport services, including armoured car services, and courier services, except transport of mail'). The award procedure is, therefore, to be determined in accordance with Article 10 of Directive 92/50, on the basis of the relative values of those two service categories under the contract as a whole. Where it is alleged, in a case governed by Article 10 of Directive 92/50, that a contract should have been awarded in accordance with the provisions of Titles III to VI of that Directive, it must be demonstrated to the national court, on the basis of the information which was or should have been considered by the contracting authority, and taking into account that authority's margin of appreciation, that the value of the service listed in Annex I A to that Directive which constitutes part of the services contracted for in the disputed contract should have been estimated by the contracting authority to be greater than that of the constituent service listed in Annex I B.
  • (3) Subject to an assessment, in an appropriate concrete case, of whether the relevant provisions of Titles III to VI of Directive 92/50 create rights for individuals which are unconditional and sufficiently precise to be enforceable in the absence of national implementing measures, the right of service providers under Articles 1 to 10 of Directive 92/50, taken together, to participate in the award of public service contracts in accordance with the provisions of that Directive is capable of direct effect.
  • (4) Directive 92/50 does not apply retroactively to existing public service contracts concluded before the date for transposition of that Directive. It is a question of national law whether the renegotiation of terms agreed under an existing public service contract results in a break in the continuity of that contract, leading to the application of the relevant provisions of Directive 92/50 to the award of the subsequent contract. Community law does not require a contracting authority to use a right of termination provided for in a pre-existing public service contract after the date for transposition of Directive 92/50.

Case C-111/97

EvoBus Austria GmbH v Niederösterreichische Verkehrsorganisations G.m.b.H. (Növog)

Company law

24 September 1998

Preliminary ruling

(Public procurement in the water, energy, transport and telecommunications sectors · Effect of a directive which has not been transposed)

(Sixth Chamber)

By order of 25 November 1996, the Bundesvergabeamt (Federal Procurement Office) referred to the Court for a preliminary ruling three questions on the interpretation of Council Directive 92/13/EEC of 25 February 1992.

Those questions were raised in proceedings between EvoBus Austria GmbH and the Niederösterreichische Verkehrsorganisations GmbH (hereinafter 'Növog') relating to the award of a public supply contract in respect of buses.

Legal background

On 18 July 1996, EvoBus requested the Bundesvergabeamt to set in motion a review procedure under Paragraph 91(3) of the Bundesgesetz über die Vergabe von Aufträgen ((Federal Law on Public Procurement, hereinafter 'BVergG'). That request related to the tendering procedure initiated by Növog in respect of the delivery of 36 to 46 buses for the regular inter-urban express bus service.

In support of its application, EvoBus claimed that, in the course of that procedure, the successful tender had been subsequently amended and the repurchase price of the buses thus increased from 34% to 55%.

The first and second questions

By the first and second questions, the national court is essentially asking whether Articles 1(1) to (3) and 2(1) and (7) to (9) or any other provisions of Directive 92/13 must be interpreted as meaning that, where the directive has not been transposed by the end of the period prescribed for that purpose, the review bodies of the Member States having competence in relation to procedures for the award of public supply and public works contracts may also hear applications for review relating to procedures for the award of public contracts in the water, energy, transport and telecommunications sectors.

It must be observed that, although Article 1 of Directive 92/13 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts in the water, energy transport and telecommunications sectors, it does not indicate which national bodies are to be the competent bodies for this purpose and, furthermore, does not require that those bodies be the same as those which the Member States have designated in the field of public works contracts and public supply contracts.

It is common ground that, at the time when EvoBus made its application for review before the Bundesvergabeamt, namely 18 July 1996, Directive 92/13 had not been transposed into Austrian law.

In regard to such circumstances, the Court pointed out in the judgment of 17 September 1997 in Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It follows that, when applying national law, whether adopted before or after the directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result which it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty.

That obligation requires the national court to determine whether the relevant provisions of domestic law allow recognition of a right for individuals to review in relation to awards of public service contracts in the water, energy, transport and telecommunications sectors. In circumstances such as those in point in the main proceedings, the national court is required in particular to determine whether that right to review may be exercised before the same bodies as those established to hear applications for review concerning the award of public supply contracts and public works contracts.

In the main proceedings, it is, however, common ground that, pursuant to Paragraphs 7(2) and 67(1) of the BVergG, the awarding authorities under Paragraph 67(2) are expressly excluded from the system of review established by that Law.

In those circumstances it must be pointed out that, if the relevant provisions of domestic law cannot be interpreted in conformity with Directive 92/13, the persons concerned may, in accordance with the appropriate procedures under domestic law, claim compensation for the damage incurred owing to the failure to transpose the directive within the time prescribed.

The Court held:

'Article 1(1) to (3), Article 2(1), (7) to (9) and the other provisions of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors cannot be interpreted as meaning that, where the directive has not been transposed by the end of the period prescribed for that purpose, the review bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear applications for review relating to procedures for the award of public contracts in the water, energy, transport and telecommunications sectors. However, in order to observe the requirement that domestic law be interpreted in conformity with Directive 92/13 and the requirement that the rights of individuals be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring review proceedings in relation to awards of public contracts in the water, energy, transport and telecommunications sectors.

The national court must, in particular, verify whether that right to bring review proceedings can be exercised before the same bodies as those established to hear applications for review concerning the award of public supply contracts and public works contracts. If the provisions of domestic law are incapable of being interpreted in conformity with Directive 92/13, the persons concerned may, in accordance with the appropriate procedures under domestic law, claim compensation for

damage suffered as a result of the failure to transpose the directive within the prescribed time-limit.'

Advocate General N. Fennelly delivered his Opinion at the sitting of the Sixth Chamber on 2 April 1998.

He recommended that the Court respond as follows to the questions referred by the Bundesvergabeamt:

'It does not follow from Article 1(1) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors that, where that directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of contracts in those sectors. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/13/EEC and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of contracts in the relevant sectors. It would, however, be contrary to the principle of legal certainty for Article 1(1) of Directive 92/13/EEC to be deemed to be implemented by national legislation establishing bodies to hear appeals concerning the award of public supply contracts and public works contracts which, on its face, expressly excludes the application of the relevant legislative provisions to the fields governed by that Directive.'

Court of First Instance

Case T-112/95

Peter Dethlefs and 38 other farmers v Council of the European Union and Commission of the European Communities

Agriculture

24 September 1998

(Claims for compensation · Non-contractual liability · Milk · Additional levy · Producers who have entered into non-marketing or conversion undertakings · Compensation · Regulation (EEC) No 2187/93 · Interest)

(First Chamber)

By judgment of 19 May 1992 in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061 (hereinafter 'Mulder'), the Court held the Community liable for damage caused to certain milk producers who had been prevented from marketing milk as a result of the

application of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), by reason of undertakings which they had given under Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1).

In view of the large number of producers concerned by Mulder, and in order to give full effect to that judgment, the Council adopted Regulation (EEC) No 2187/93 of 22 July 1993 providing for an offer of compensation to certain producers of milk and milk products temporarily prevented from carrying on their trade (OJ 1993 L 196, p. 6). That regulation provides for a flat-rate payment by way of compensation to be paid to producers who, in certain circumstances, suffered damage as a result of the application of the rules referred to in Mulder.

The applicants are milk producers in Germany who gave undertakings under Regulation No 1078/77 and who were prevented from resuming the marketing of milk as a result of the application of Regulation No 857/84.

Substance

In support of their action, the applicants put forward a single plea in law, alleging infringement of Article 12 of Regulation No 2187/93.

The Court emphasises, first of all, that Regulation No 2187/93 lays down the pre-conditions for offers of compensation such as those addressed to the applicants, together with all the information needed to calculate the amounts offered. Since those offers result directly from the Regulation, they are not independent of that measure.

The plea put forward by the applicants turns on the determination of the obligations incumbent upon a person in receipt of a compensation offer under Regulation (EEC) No 2187/93 as a result of accepting and signing the receipt (the model for which was set out in Commission Regulation No 2648/93 laying down detailed rules for the application of Regulation No 2187/93 and, in particular, to establish whether they include the obligation to discontinue any actions pending.

It is clear from the recitals in the preamble to Regulation No 2187/93 that the institutions recognised that, as a result of Mulder, a very large number of producers were entitled to compensation and that it would be impossible for them to take into account the individual situation of each producer. They therefore decided to provide by regulation for offers of compensation, acceptance of which would entail · by virtue of Article 14, second paragraph, of the Regulation in question · relinquishment of all rights of action whatsoever against the Community institutions (see T-541/93 Connaughton and Others v Council [1997] ECR II-549, paragraph 31).

In the Court's view, the producers' relinquishment of all rights of action cannot also apply, as the defendants maintain, in relation to the consequences of a breach by the institutions of their obligations under the Regulation in question.

It is common ground that a large number of producers, including the applicants, had already, at the time when Regulation No 2187/93 was adopted, brought actions for damages against the Council and the Commission.

It is thus clear from all the provisions governing the compensation offer that their objective was to restrict the number of judicial proceedings in relation to this matter.

It is necessary to examine, in the light of that conclusion, the obligations incumbent on the parties under Regulation No 2187/93 and the terms of the receipt.

Acceptance of compensation proposed under Regulation No 2187/93 by signing the related receipt placed the applicants under an obligation · which, moreover, they did not contest · to discontinue any actions pending.

The defendant institutions were therefore entitled to make payment of the compensation contingent on discontinuance of those actions.

In those circumstances, the institutions concerned were correct to suspend payment of the interest provided for in Article 12 of Regulation No 2187/93, so long as the applicants had not fulfilled their obligation to discontinue.

It should be emphasised that the Registry of the Court of First Instance communicated the applicants' discontinuance to the defendants and that the latter, by letters of 6 and 9 June 1994, submitted their observations in that regard. The defendants were thus made aware at that point that the condition on which payment of compensation depended had been satisfied; they were also apprised of the relevant date.

For the majority of the applicants, therefore, that condition was satisfied on 20 April 1994, the date on which their applications for discontinuance were registered at the Court of First Instance.

It follows from the foregoing that the claims for interest made by the applicants are partly well founded. The defendants must apply interest on the compensation paid to the applicants at the rate of 8% per annum in respect of the period between 20 April and 3 August 1994, the eve of the date from which interest has already been paid.

The Court held:

  • '1. Orders the defendants to pay the applicants Günter Backhaus, Uwe Lorentz and Manfred Mittwede in respect of the period between 20 April and 28 June 1994 interest at the rate of 8% per annum on the compensation paid to them under Council Regulation (EEC) No 2187/93 of 22 July 1993 providing for an offer of compensation to certain producers of milk and milk products temporarily prevented from carrying on their trade;
  • 2. Orders the defendants to pay the applicant Paul Gövert in respect of the period between 9 May and 3 August 1994 interest at the rate of 8% per annum on the compensation paid to him under that regulation;
  • 3. Orders the defendants to pay to all the other applicants in respect of the period between 20 April and 3 August 1994 interest at the rate of 8% per annum on the compensation paid to them under that regulation;
  • 4. Orders interest at the rate of 6% per annum to be paid on those amounts with effect from the date of this judgment;

5. Orders each of the parties to bear his own costs.'

2.

Opinions

Case C-159/97

Trasporti Castelli Spedizioni Internazionali SpA v Hugo Trumpy SpA

Reference for a preliminary ruling · Corte Suprema di Cassazione · Interpretation of Article 17 of the Brussels Convention · Extension of jurisdiction · Jurisdiction clause in a bill of lading

Advocate General P. Léger delivered his Opinion at the sitting of the Full Court on 22 September 1998.

Not available

Case C-396/97

Commission of the European Communities v Italian Republic

Failure by a Member State to fulfil obligations · Failure to transpose, within the specified period, Council Directive 95/25/EC of 22 June 1995 amending Directive 64/432/EEC on health problems affecting intra-Community trade in bovine animals and swine.

Advocate General N. Fennelly delivered his Opinion at the sitting of the First Chamber on 24 September 1998.

  • '(1) declare that by not enacting the laws, regulations and administrative provisions necessary to comply with Council Directive 95/25/EC of 22 June 1995 amending Directive 64/432/EEC on health problems affecting intra-Community trade in bovine animals and swine, or by not informing the Commission of the measures taken to comply with the Directive, the Italian Republic has failed to fulfil its obligations under Article 2 of that Directive;

(2) order the Italian Republic to pay the costs of these proceedings.'

Case C-181/96

Georg Wilkens v Landwirtschaftskammer Hannover

Preliminary ruling · Bundesverwaltungsgericht Berlin · Interpretation of the second subparagraph of Article 3a(1) of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector as amended by Council Regulation (EEC) No 1639/91 · Granting of a specific reference quantity for holdings having been the subject of a non-marketing or reconversion premium · Situation of a producer ordered to repay the premium on account of irregularities · Whether excluded

Advocate General P. Léger delivered his Opinion at the sitting of the Second Chamber on 24 September 1998.

He suggested that the Court reply as follows:

  • (1) The second subparagraph of Article 3a(1) of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector as amended by Council Regulation (EEC) No 1639/91 must be interpreted as precluding the provisional grant of a specific reference quantity to a producer who has been declared to have lost the right to payment of a non-marketing or conversion premium or who has been ordered to repay the amount of the premium where the ground for that decision is the producer's breach of the non-marketing undertaking given under Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds.
  • (2) Consideration of the second question has disclosed no factor of such a kind as to affect the validity of the second subparagraph of Article 3a(1) of Council Regulation (EEC) No 857/84.

Case C-397/97

Commission of the European Communities v Italian Republic

Failure by a Member State to fulfil obligations · Failure to transpose, within the specified period, Council Directive 93/120/EC of 22 December 1993 amending Directive 90/539/EEC on animal health conditions governing intra-Community trade in and imports from third countries of poultry and hatching eggs, and Council Directive 93/121/EC of 22 December 1993 amending Directive 91/494/EEC on animal health conditions governing intra-Community trade in and imports from third countries of fresh poultrymeat

Advocate General N. Fennelly delivered his Opinion at the sitting of the Fourth Chamber on 24 September 1998.

He proposed that the Court:

  • (1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 93/120/EC of 22 December 1993 amending Directive 90/539/EEC on animal health conditions governing intra-Community trade in and imports from third countries of poultry and hatching eggs, and Council Directive 93/121/EC of 22 December 1993 amending Directive 91/494/EEC on animal health conditions governing intra-Community trade in and imports from third countries of fresh poultrymeat, the Italian Republic has failed to fulfil its obligations under Article 2 of each of those directives;

(2) order Italy to pay the costs.

Joined Cases C-127/96, C-229/96 to C-74/97, ainsi que Joined Cases C-173/96 to C-247/96

Francisco Hernández Vidal, S.A. v Prudencia Gómez Pérez and Others

Friedrich Santner v Hoechst Aktiengesellschaft

Mercedes Gómez Montaña v Claro Sol, S.A. et Red Nacional de Ferrocarriles Españoles (R.E.N.F.E.)

Francisca Sánchez Hidalgo and Others v Asociación de Servicios Aser et Sociedad Cooperativa Minerva

Horst Ziemann v Fa. Ziemann Sicherheit GmbH et Fa. Horst Bohn Sicherheitsdienst

Reference for a preliminary ruling · Tribunal Superior de Justicia de Murcia · Interpretation of Council Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses · Scope · Expiry of the contract with an independent contractor entrusted with daily cleaning in an industrial undertaking

Advocate General G. Cosmas delivered his Opinion at the sitting of the Fifth Chamber on 24 September 1998.

Not available

Case C-347/97

Commission of the European Communities v Kingdom of Belgium

Failure of a Member State to fulfil its obligations · Failure to apply Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances · Non-adoption of programmes intended to reduce the pollution caused by used batteries and accumulators

Advocate General G. Cosmas delivered his Opinion at the sitting of the Fifth Chamber on 24 September 1998.

He proposed that the Court:

  • '(1) Declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances;
  • (2) order the Kingdom of Belgium to pay the costs pursuant to Article 69(2) of the Rules of Procedure.'

Case C-103/97

J. Köllesperger Gesellschaft mbH & Co KG and Others v Gemeindeverband Bezirkskrankenhaus Schwaz

Reference for a preliminary ruling · Landesvergabeamt Innsbruck · Interpretation of Art. 2(8) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts · Body independent of the awarding authority having the status of a court or tribunal within the meaning of Art. 177 of the EC Treaty · Rules governing composition · Position of the (Tyrolean) Landesvergabeamt

Advocate General A. Saggio delivered his Opinion at the sitting of the Sixth Chamber on 24 September 1998.

He proposed that the Court declare the questions referred by the Tyrol Landesvergabeamt inadmissible, since that body is not a court or tribunal for the purposes of Article 177 of the Treaty.

In the alternative, he proposed that the Court reply as follows:

'The second part of Article 2(8) of the review directive must be interpreted as meaning that the conditions it lays down concern solely the composition of independent bodies responsible for reconsidering decisions taken by a body having the capacity to hear and determine actions brought against the award of public contracts, which is not a court or tribunal as referred to in Article 177 of the Treaty. The provision in question is therefore irrelevant to the appreciation of the composition and operation of the Tiroler Landesvergabeamt.'

Case C-250/97

Dansk Metalarbejderforbund, agissant pour John Lauge e.a. / Lønmodtagernes Garantifond

Reference for a preliminary ruling · Civilretten i Hillerød · Interpretation of Articles 3(1) and 4(4) of Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies, as amended by Council Directive 92/56/EEC of 24 June 1992 · Concept of 'collective redundancies arising from termination of the establishment's activities as a result of a judicial decision' · Collective redundancies announced on the same day as that on which the employer filed a winding-up petition

Advocate General G. Cosmas delivered his Opinion at the sitting of the Sixth Chamber on 24 September 1998.

He proposed that the Court reply as follows:

'The second subparagraph of Article 3(1) and Article 4(4) of Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies, as amended by Council Directive 92/56/EEC of 24 June 1992 mean that the concept of 'collective redundancies arising from termination of the establishment's activities as a result of a judicial decision' does not apply to a situation in which the collective redundancies were announced on the very day that the employer filed its application for the commencement of winding-up proceedings and the establishment terminated its activities since the Skifteret later gave the winding-up judgment setting the date on which the winding-up proceedings commenced as the day on which it received the application for commencement of those proceedings, without any other deferral even than that caused by the time-limit set by the Skifteret itself.'

Case C-256/97

D.M. Transport S.A.

Reference for a preliminary ruling · Tribunal de commerce, BruxelIes · Interpretation of Article 92 of the EC Treaty · Payment (of contributions) facilities granted at the discretion of a social security body

Advocate General F.G. Jacobs delivered his Opinion at the sitting of the Sixth Chamber on 24 September 1998.

He considered that the second question referred by the Tribunal de Commerce, Bruxelles, did not call for an answer and the Court should reply to the first question as follows:

Measures in the form of discretionary facilities for the late payment of social security contributions entail the grant of State aid within the meaning of Article 92(1) of the Treaty if those facilities, taking into account the terms on which they are granted, are manifestly more generous than those which a private creditor would grant in comparable circumstances.

3.

NEW CASES

Court of Justice

Case C-246/98

Berendse-Koenen M.G. en Berendse H.G. Maatschap

Reference for a preliminary ruling · Arrondissementsrechtbank te Arnhem · Interpretation of Article 30 of the EC Treaty and Article 8 of Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations, in the light of a national regulation prohibiting veterinary medicinal products containing clenbuterol (Verordening Stoffen met sympathico mimetische werking · PVV 1991).

Case C-247/98

Greece v Commission

Annulment of Commission Decision C(98) 1124 final on the clearance of the accounts presented by the Member States in respect of the expenditure for 1994 of the Guarantee Section of the EAGGF · Sectors: beef and veal, fruit and vegetable, and wine.

Case C-248/98 P

Koninklijke Nederlandse Papierfabreieken BT NV (KNP BT) v Commission

Appeal against the judgment of the Court of First Instance (Third Chamber, Extended Composition) of 14 May 1998 in Case T-309/94 Koninklijke Nederlandse Papierfabreiken v Commission in so far as the Court

n 94/60

1994 concerning a proceeding under Article 85 of the EC Treaty (IV/C/33.833 · Cartonboard) · Responsibility for the conduct of a subsidiary

Case C-249/98 P

Mario Costacurta v Commission

Appeal against the judgment in Case T-177/96 by which the Court of First Instance dismissed an application for annulment of a decision refusing to apply the weighting for Zaïre (247.13) to certain salary transfers and a secondary claim for compensation for the damage thereby caused

Case C-250/98

Commission v France

Failure by a State to comply with its obligations · Failure to transpose within the prescribed time-limit Council Directive 89/594/EEC amending Directives 73/362/EEC, 77/452/EEC, 78/686/EEC, 78/1026/EEC and 80/154/EEC relating to the mutual recognition of diplomas, certificates and other evidence of formal qualifications as doctors, nurses responsible for general care, dental practitioners, veterinary surgeons and midwives, together with Directives 75/363/EEC, 78/1027/EEC and 80/155/EEC concerning the coordination of provisions laid down by law, regulation or administrative action relating to the activities of doctors, veterinary surgeons and midwives.

Case C-251/98

C. Baars et Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorichem

Interpretation of Articles 6 and 52 EC, and of Articles 73b and 73d EC with regard to a provision of national law concerning assets tax · exemption for a material shareholding in an undertaking (provided that undertaking is established in the Member State concerned).

Case C-252/98

Commission v France

Failure by a State to comply with its obligations · Articles 48 and 52 of the EC Treaty · Failure to organise a procedure whereby a person holding a diploma as a specialist nurse which has been obtained by the 'direct route' may secure recognition of the equivalence of that diploma with the (French) diploma awarded to nurses providing general care without that person being required systematically to sit the final examinations comprised in the French programme (that is to say, without the training acquired by that person in another Member State being taken into account).

Case C-253/98

Commission v Belgium

Failure by a State to comply with its obligations · Failure to transpose within the prescribed time-limit Commission Directive 96/40/EC establishing a common model for an identity card for inspectors carrying out port State control.

Case C-254/98

Schutzverband gegen unlauteren Wettbewerb and TK-Heimdienst Sass GmbH

Reference for a preliminary ruling - Oberster Gerichtshof - Interpretation of Article 30 of the EC Treaty - National law relating to the distribution on rounds of groceries, meats and breads and imposing a territorial restriction thereon.

Case C-255/98

Spain v Commission

n 98/32

presented by the Member States in respect of the expenditure for 1997 of the EAGGF, Guarantee Section · Clearance of accounts (Article 5(2)(b) of Commission Regulation (EEC) No 729/70) · Exclusion of deductions which must be subject to material verification (Article 5(2)(c) of Regulation (EEC) No 729/70)

Case C-256/98

Commission v France

Failure by a State to comply with its obligations · Failure to transpose within the prescribed time-limit Article 6 of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora · Failure to draw up the management plans provided for by the directive.

Case C-257/98 P

Arnaldo Lucaccioni v Commission

Appeal against the judgment in Case T-165/95, by which the Court of First Instance dismissed an action for compensation for damage resulting from an occupational disease · Taking into account of benefits received under Article 73 of the Staff Regulations of officials · Duration of the procedure for acknowledging the existence of an occupational disease.

Case C-258/98

Giovanni Carra et Alesandra Colombo v Barbara Gianassi

Interpretation of Articles 86 and 90 of the EC Treaty following the judgment of the Court of Justice of 11 December 1997 in Case C-55/96 Job Centre · Direct effect of those articles

Case C-259/98

Commission v Germany

Failure of a Member State to fulfil its obligations, Article 20 of Council Directive 78/686/EEC concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, and Article 5 of Council Directive 78/687/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners · entry to the occupation of 'Kassenzahnarzt' (approved dental practitioner) · obligation to attend an introductory three-day course

Case C-260/98

Commission v Greece

Failure of a Member State to fulfil its obligations · Articles 2 and 4 of the Sixth VAT Directive · Failure to subject certain road tolls to value added tax · Failure to make available to the Commission the corresponding own resources

Case C-261/98

Commission v Portugal

Failure of a Member State to fulfil obligations: failure to transpose within the prescribed period Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, and in particular failure to adopt the programmes provided for in Article 7 of that directive for the substances on List II.

Case C-262/98

Commission v Belgium

Failure by a State to comply with its obligations · Failure to transpose within the prescribed time-limit Council Directive 93/65/EEC of 19 July 1993 on the definition and use of compatible technical specifications for the procurement of air-traffic management equipment and systems.

Case C-263/98

Belgium v Commission

n 98/35

Member States in respect of the expenditure for 1994 of the Guarantee Section of the EAGGF · Export refunds in the cereal and beef sectors · Nature and extent of checks to be carried out · Flat-rate reduction

Case C-264/98

Tibor Balog and Royal Charleroi Sporting Club asbl (RCSC)

Interpretation of Article 85 of the EC Treaty and Article 53 of the EEA Agreement with reference to the conduct of a sports club which, on the basis of the rules of the national, European and world football federations, demands payment of a 'transfer sum' on the occasion of the engagement of one of its former professional players of non-Community nationality who has reached the end of his contract by another club established in (a) the same Member State, (b) another Member State of the European Union or the European Economic Area or (c) a non-member country.

Case C-265/98

Salvat Editores SA and José Compañ Calbuig

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-266/98

Salvat Editores SA and Gianfranco Caminati

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-267/98

Océano Grupo Editorial SA and Rafael Bogas Cardeñosa

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-268/98

Océano Grupo Editorial SA and María Casas Minguélez

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-269/98

Planeta Crédito SA and Antonio Villar Castelao

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-270/98

Artel SA and Pilar López Aznar

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-271/98

Salvat Editores SA and José Antonio Serrano Garrido

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-272/98

Artel SA and Francisca Arencom Salazar

Interpretation (of Article 189(3) of the EC Treaty) and of Council Directive 93/13/EEC of 15 April 1993 on unfair terms in consumer contracts · Authority of the court seised under a possibly unfair clause conferring jurisdiction to decide on the validity of that clause of its own motion when considering its jurisdiction · Effects of the directive, which was not transposed within the prescribed period.

Case C-273/98

Hans-Josef Schlebusch and Hauptzollamt Trier

Interpretation of the first sentence of Article 3a(3) of Council Regulation (EEC) No 857/84 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector, as amended by Regulation No 1639/91 · conditions for the definitive allocation of a special reference quantity (SLOM II) · resumption of deliveries corresponding to the provisional special reference quantity by a producer who does not use his original reference quantity himself

Case C-274/98

Commission v Spain

Failure of a Member State to fulfil its obligations · Failure to establish within the prescribed period action programmes pursuant to Article 5 of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources

Case C-275/98

Unitron Scandinavia A/S et 3-S A/S, Danske Svineproducenters Serviceselskab and Ministeriet for Fødevarer, Landbrug og Fiskeri

Interpretation of Article 2(2) of Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts and Council Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts (as both amended by European Parliament and Council Directive 97/52/EC) · Private undertaking (not the contracting authority) responsible for administering a monitoring scheme in the agricultural sector · Obligation for the administrative body which is the contracting

authority, to require certain conduct from the private undertaking as requires the purchase of supplies linked to an activity for which the latter is responsible

Case C-276/98

Commission v Portugal

Failure of a Member State to fulfil its obligations · Articles 12 and 28(2) of the Sixth VAT Directive (Directive 77/388/EEC), as amended by Directive 92/77/EEC of 19 October 1992 on the approximation of VAT rates · Introduction or keeping in force of a reduced rate of 5% for wines, machines and equipment for exploiting alternative forms of energy, tolls for crossing the Tagus bridge in Lisbon and agricultural tools and implements.

Case C-277/98

France v Commission

n 98/35

presented by the Member States in respect of the expenditure for 1994 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund · Corrections in respect of supplementary levies for milk corresponding to sums the recovery of which is the subject of proceedings before the competent national courts.

4.

NOTICE

TWO NEW JUDGES APPOINTED TO THE COURT OF FIRST INSTANCE OF THE EC

FORMAL SITTING OF 17 SEPTEMBER 1998

By decision of 25 May 1998 the Representatives of the Governments of the Member States appointed two Judges to the Court of First Instance for the period from 17 September 1998 to 31 August 2004.

Mr Arjen W. H. Meij, and Mr Michael Vilaras entered into office and took the oath, in accordance with the provisions of the Treaties, at the formal sitting of the Court of Justice of the European Communities on 17 September 1998.

Mr Arjen W. H. MEIJ, born in 1944; Justice at the Supreme Court of the Netherlands (1996); Judge and Vice-President at the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry) (1986), Judge Substitute at the Court of Appeal for Social Security, and Substitute Member of the Administrative Court for Customs Tariff Matters; Legal Secretary at the Court of Justice of the European Communities (1980); Lecturer in European Law in the Law Faculty of the University of Groningen and Research Assistant at the University of Michigan Law School; Staff Member of the International Secretariat of the Amsterdam Chamber of Commerce and Industry (1970); Judge at the Court of First Instance from 17 September 1998.

Mr Michael VILARAS, born in 1950; lawyer; Junior Member of the Greek Council of State; Member of the Greek Council of State; Associate Member of the Superior Special Court of Greece; national expert with the Legal Service of the European Commission, then Principal Administrator in DG V (Employment, Industrial Relations, Social Affairs); Director of the Legal Service of the Greek Government; Judge at the Court of First Instance from 17 September 1998.

Administrative assistants - Proof-readers of Finnish mother tongue

(Open Competition No EUR/B143)

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

AND

THE COMMISSION OF THE EUROPEAN COMMUNITIES

are organising an open competition on the basis of tests to establish a reserve list for recruitment of Administrative assistants - Proof-readers of Finnish mother tongue (ref. Open Competition No EUR/B/143)

Candidates must

· Be a national of a Member State of the European Union;

· Be less than 45 years old on 30 October 1998;

· Have completed higher secondary school studies leading to the 'Ylioppilastutkinto' or an equivalent diploma;

· Have at least 2 years working experience;

  • · Have a thorough knowledge of Finnish and an adequate knowledge of one other official language of the European Communities.

Further information and the official application form may be obtained on written request (see Official Journal of the European Communities of 23 September 1998) from: the Court of Justice of the European Communities, Personnel Division, L-2925 Luxembourg

The closing date for applications is 30 October 1998

Administrative assistants - Proof-readers of Swedish mother-tongue

Open Competition No EUR/B/144

The Court of Justice of the European Communities

and

the European Commission

are organising an open competition on the basis of tests to establish a reserve list for

recruitment of Administrative assistants - Proof-readers of Swedish mother-tongue (ref. Open Competition No EUR/B/144)

Candidates must

· Be a national of a Member State of the European Union;

· Be less than 45 years old on 30 October 1998;

  • · Have completed higher secondary school studies leading to the 'Avgångsbetyg fraån gymnasieskolan, 3-årig linje' or an equivalent diploma;

· Have at least 2 years working experience;

  • · Have a thorough knowledge of Swedish and an adequate knowledge of one other official language of the European Communities.

Further information and the official application form may be obtained on written request (see Official Journal of the European Communities of 23 September 1998) from: the Court of Justice of the European Communities, Personnel Division, L-2925 Luxembourg

The closing date for applications is 30 October 1998

Conference interpreters of German mother-tongue (m/f)

Open competition No CJ/LA/28 the Court of Justice of the European

Communities in Luxembourg

is organising an open competition based on tests for the constitution of a reserve list for recruitment of Conference Interpreters of German mother-tongue (m/f) (ref. Open Competition No CJ/LA/28)

Candidates must

· Be a national of a Member State of the European Union;

· Be less than 45 years old on 27 November 1998;

  • · Either have successfully completed a university interpretation course or have equivalent professional experience as an interpreter;
  • · Have a perfect knowledge of the German language, thorough knowledge of French and of at least two other official languages of the European Communities.

Further information and the official application form may be obtained on written request (see Official Journal of the European Communities of 23 October 1998) from: the Court of Justice of the European Communities, Personnel Division, L-2925 Luxembourg

The closing date for applications is 27 November 1998

LAWYER-LINGUISTS (m/f) of English mother-tongue

(Open competition No CJ/LA/29)

The Court of Justice of the European Communities

is organising an open competition (No CJ/LA/29), based on qualifications and tests, for the constitution of a reserve for future recruitment of:

Lawyer-Linguists (translators)

of English mother-tongue

Candidates must:

- Be a national of a Member State of the the European Union;

- Be less than 40 years old on 27 November 1998;

- Have perfect command of the English language;

  •  Have good knowledge of French and a good knowledge of another official language of the European Communities;
  •  Have completed a course in law evidenced 'by a law degree awarded in Ireland or the United Kingdom or be qualified as an Advocate, Barrister or Solicitor in one of those countries'.

Further information and the official application form may be obtained on written request (see Official Journal of the European Communities of 16 October 1998) from: the Court of Justice of the European Communities, Personnel Division, L-2925 Luxembourg

The closing date for applications is 20 November 1998

LAWYER-LINGUISTS (m/f) of Greek mother-tongue

(Open competition No CJ/LA/30)

The Court of Justice of the European Communities

is organising an open competition (No CJ/LA/30), based on qualifications and tests, for the constitution of a reserve for future recruitment of:

Lawyer-Linguists (translators)

of Greek mother-tongue

Candidates must:

- Be a national of a Member State of the European Union;

- Be less than 35 years old on 27 November 1998;

- Have perfect command of the Greek language;

  •  Have a good knowledge of French and a good knowledge of another official language of the European Communities;

- Have completed a course in law leading to the 'ptychion' or an equivalent legal diploma.

Further information and the official application form may be obtained on written request (see Official Journal of the European Communities of 2 October 1998) from: the Court of Justice of the European Communities, Personnel Division, L-2925 Luxembourg

The closing date for applications is 13 November 1998

  1. :  This bulletin is issued by the Court's Press and Information Division (L-2925 Luxembourg) to provide rapid information on the work of the Court. However, it is only the text of the judgments and opinions published in the European Court Reports that is authentic. This information may be reproduced provided the source is acknowledged.

Original version: French

Completed on 14.10.1998

Catalogue No: DX-AC-98-0021-EN-C


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