A review of the cases disposed of by the two courts in 1998 (768) brings to light the developments in the case-law emanating from the judicial institution of the Communities. The judgments can be classified broadly by subject-matter in order to take account of the most significant developments, any changes in case-law or essential points of clarification.
- For the first time, the Court of Justice was required to consider the question of citizenship of the Union, holding that a national of a Member State lawfully residing in the territory of another Member State may rely on the article of the Treaty on the European Union concerning European citizenship (Martínez Sala).
- It also referred to that article to extend the benefit of national legislation designed to protect a linguistic minority to Community nationals whose language is the same as the one enjoying that protection and who travel or stay in the province concerned (Bickel and Franz).
- The Court held that a provision of a collective agreement defining the conditions for promotion of public service employees, which did not take account of previous periods of comparable employment completed in the public service of another Member State, infringed the principle of non-discrimination (Schöning-Kougebetopoulou).
- By contrast, the Court did not consider that differentiations in the fiscal treatment of workers residing in one Member State but working in another Member State and resulting from the allocation of fiscal jurisdiction between two Member States, constituted discrimination (Gilly).
- Finally, the Court held that the French Republic had failed to fulfil its obligations by excluding frontier workers residing in Belgium from qualifying for supplementary retirement pension points after being placed in early retirement (Commission v France).
- In Decker and Kohll, the Court of Justice considered the compatibility with Community law of a national rule, according to which the reimbursement, at the tariffs in force in the State of insurance, of the cost of spectacles acquired or hospital out-patient treatment provided in another Member State was subject to specific prior authorization .
It concluded that the national rules at issue constituted an obstacle to the free movement of goods and the freedom to provide services and held that those obstacles were not justified.
- As regards technical regulations, the Court held that failure to notify technical regulations to the Commission rendered those regulations inapplicable but did not render unlawful the use of a product which was in conformity with the unnotified national regulations (Lemmens).
- As regards pharmaceutical products and the conditions which must be fulfilled by an applicant in order to follow the abridged procedure for obtaining marketing authorisation, the Court clarified the criteria for defining those products which may be the subject of applications under the abridged procedure (Generics UK).
- The Court stated that the provisions concerning freedom of establishment prohibit, in particular, the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation. Such an obstacle may result from discriminatory fiscal treatment (ICI).
- The Court held that the Swedish legislation concerning taxation of savings in the form of life assurance, which provided for different arrangements for companies established in Sweden and elsewhere, was incompatible with the principle of freedom to provide services (Safir).
- In Grant, the Court of Justice held that an employer's refusal to grant travel concessions to the person of the same sex with whom an employee had a stable relationship did not constitute discrimination. It pointed out that the concession was refused regardless of the sex of the worker concerned and considered whether a stable relationship between persons of the same sex had to be treated as equivalent to marriage or to a stable relationship with a partner of the opposite sex, bearing in mind Community law, the laws of the Member States and the case-law of the European Court of Human Rights. It concluded that such equivalence was not accepted and that only the Community legislature could alter that position.
- As regards protection for pregnant women, the Court held that the principle of non-discrimination required similar protection throughout the period of pregnancy, in particular if the dismissal was based on absences due to incapacity for work caused by an illness resulting from that pregnancy (Brown) and found it necessary to define certain aspects of the financial arrangements and other rights to which women may lay claim during the period of maternity leave (Boyle).
- More specifically, the fact that the rights of individuals must be effective meant, inter alia, that an employer could not rely on a two-year time-limit for bringing proceedings against a female employee in a situation where that employer's deceit had caused the employee's delay in bringing proceedings for enforcement of the principle of equal pay (Levez).
- A large number of judgments were delivered by the Court of Justice concerning the prohibition of restrictive agreements, the abuse of a dominant position and the control of concentrations between undertakings (theory of the failing company defence, in accordance with which the Court broadly approved the Commission's approach in defining the conditions enabling it to consider that a concentration did not lead to the creation or strengthening of a dominant position (France and Others v Commission).
- The Court also defined more clearly the Commission's obligations in relation to the examination of complaints about State aid and the stating of reasons for dismissing them. It is the decision informing the Member State of the Commission's position which may be the subject of any action for annulment which the complainant may bring, and not the letter to the complainant informing him of that decision; there is no basis for imposing on the Commission an obligation to conduct an exchange of views and arguments with the complainant; the Commission is required to provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have not been sufficient to demonstrate the existence of State aid (Commission v Sytraval and Brink's France).
- The Court of First Instance delivered a large number of judgments in the field of competition law, in particular in the "Cartonboard" cases. In these it clearly defined the conditions under which an undertaking may be held responsible for a general cartel. It also held that reductions in the fines imposed by the Commission were justified only if the conduct of the undertaking made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it.
- For the first time, the Court of First Instance held that the Commission had failed to act in the field of State aid; the Commission had failed to adopt a position on two complaints concerning audio-visual undertakings (Gestevisión Telecinco v Commission).
- In the field of State aid, the Court of First Instance considered the conditions for the admissibility of an action brought by a region. It held that the Commission decision concerning aid granted by the Flemish Region to an airline had a direct and individual effect on the legal position of that region by preventing it from exercising its own powers as it saw fit and requiring it to modify the loan contract entered into with an undertaking (Vlaams Gewest v Commission). A trade union, on the other hand, was not recognised as being directly and individually concerned by a Commission decision finding aid to be incompatible with the common market (Comité d'Entreprise de la Société Française de Production and Others v Commission). Similarly, a Spanish regional authority was held not to be individually concerned by a Council regulation on aid to certain shipyards, notwithstanding any general interest it may have had in the development of economic activity and the level of employment.
- The Court of First Instance annulled, on the ground of procedural irregularities, the Commission decision authorising the French authorities to grant aid to Air France in the form of an increase in capital, holding that insufficient reasons had been given for the decision, in particular, as regards the effects of the aid on competing airlines (British Airways and Others v Commission).
- The number of judgments delivered by the Court of Justice in this field continues to increase, in particular as a result of questions referred for preliminary rulings by national courts concerning, inter alia, the meaning of a "body governed by public law" in relation to the concept of contracting authority, a concept which is of importance in the Community public procurement regime. The Court held that a body established in order to produce official administrative documents on an exclusive basis constituted a body governed by public law (Mannesmann). In another judgment (BFI Holding) it held that the removal and treatment of household refuse constituted a "need in the general interest"; the concept of general interest is one of the criteria applied under Community law in order to define the category of bodies governed by public law. In that respect, the Court held that needs in the general interest could be met by private bodies created for that purpose, even though they may engage for the greater part in other activities, directed to different purposes.
- The first cases concerning the Community trade mark were brought before the Court of First Instance against a decision of one of the Boards of Appeal of the Office for Harmonisation in the Internal Market.
- As regards trade mark law, the Court of Justice held that the likelihood of confusion in the public's mind between the goods or services covered by two trade marks, the distinctive character of the earlier trade mark and its reputation must be taken into account in determining the protection to be granted to it (Canon). The principle of Community exhaustion, by virtue of which the proprietor of a trade mark is no longer entitled to prohibit its use where the products have been put on the market in the EEA with his consent, must be interpreted strictly; the proprietor of the mark is entitled to prevent its use by third parties outside the EEA (Silhouette).
- The Court also reiterated that literary and artistic works may be the subject of commercial exploitation by means other than the sale of the recordings made of them and that specific protection of the rental right may appear to be justified on grounds of the protection of industrial and commercial property (Metronome Musik).
- The proprietor of an exclusive rental right may 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 (FDV).
- The Court of Justice was called upon to rule on the validity of the framework agreement on bananas with four Central and South American States, which was concluded following the condemnation, in the context of the GATT, of the Community import arrangements. It assessed the differences in treatment accorded to traders, on a case-by-case basis, and held that some were acceptable, where they were an automatic consequence of the different treatment accorded to third countries, whilst rejecting others, in particular as regards the exemption of certain traders from the export-licence system (Germany v Council).
- The Court was required to consider the Commission's exercise of its powers relating to animal health
and the reconciliation of those powers with the requirements of the common market. In cases concerning "mad-cow" disease, the Court held that where there is uncertainty as to the existence or extent of risks to human health, the institutions could take protective measures without having to wait until the reality and seriousness of those risks became fully apparent (National Farmers Union and United Kingdom v Commission).
- The Court of Justice looked at the obligations resulting from the directive on the conservation of wild birds concerning the classification of special protection areas. Member States are obliged to carry out that classification in accordance with specified ornithological criteria (Commission v Netherlands).
- In a case concerning the taxation of electricity of domestic origin according to its method of production, the Court referred to environmental considerations and held that the principle of imposing a different rate of tax on imported electricity was compatible with Community law, provided that the different systems of taxation did not lead to higher taxation being imposed on a similar imported product (Outokumpu).
- The Court of Justice clarified the conditions for the admissibility of an action for annulment brought by an association for the protection of the environment (Greenpeace Council and Others v Commission) or by companies against Commission decisions, by applying the criterion of the direct effect or the direct and individual effect of the decision in question on the rights invoked (Dreyfus and Others).
- As regards the procedure for referring questions for preliminary rulings, the Court confirmed that the possibility of referring questions for preliminary rulings was available only to bodies performing a judicial function (Victoria Film).
It also stated that it could give its decision by reasoned order where the question referred to the Court was manifestly identical to a question on which the Court had already ruled (Beton Express; Conata and Agrindustria).
- The Court of Justice partially annulled a judgment of the Court of First Instance on the ground of the excessive duration of the proceedings before that court. It referred to the case-law of the European Court of Human Rights in determining whether the duration of those proceedings was reasonable and what its effect was on the matters at stake in the dispute. It held, however, that no limit could be imposed on the period elapsing between the close of the oral procedure and delivery of the judgment. Nor was there any right of access to the "Court file" (Baustahlgewebe v Commission).
- Finally, the urgency which must exist for an order suspending the operation of a measure to be granted cannot be assumed from the fact that the authority whose decision is contested has discretionary power (Emesa Sugar v Council and Emesa Sugar v Commission).
- The Court of Justice has pointed out that Member States must lay down the procedural rules governing actions, under domestic law, for safeguarding rights which individuals derive from Community law. The principle of "equivalence" requires that such rules should not be less favourable than those governing similar domestic actions and should not render impossible or excessively difficult the exercise of the rights conferred by Community law in accordance with the principle of "effectiveness".
- The Court also had the opportunity to clarify the scope of its judgment in Simmenthal in which it had held that incompatibility with provisions of Community law had the effect of precluding new national legislative measures from being validly adopted. Every national court must apply Community law in its entirety and protect rights which the latter confers on individuals, setting aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule (IN.CO.GE.'90).
- Confirming its earlier case-law, the Court indicated that national courts could apply a provision of national law in order to determine whether a right arising from a provision of Community law is being exercised abusively, provided, however, that when making that determination they do not alter the scope of that provision or compromise the objectives pursued by it (Kefalas).
- In Interporc v Commission, the Court of First Instance condemned the Commission's refusal to provide access to certain documents; the relationship between those documents and a decision whose annulment was sought was capable of constituting grounds for refusing to notify the documents but the Commission failed to provide any explanation to demonstrate that relationship. By contrast, an application for annulment of a Commission decision refusing to provide access to letters which the Directorate General for Competition had sent to national courts was dismissed (Van der Wal v Commission). Finally, the Court of First Instance, whilst acknowledging that it had no jurisdiction to review the legality of measures adopted under the provisions on cooperation in the fields of justice and home affairs, considered that it was not in a position to determine whether the documents concerning Europol, which the Council refused to communica te to Swedish journalists, fell within the exceptions relied on for the protection of public security and the confidentiality of proceedings (Svenska Journalistförbundet v Council).
- The traditional questions raised by the choice of legal basis for Community measures prompted the Court of Justice to reiterate that the use of Article 235 of the EC Treaty is justified only where no other provision gives the Community institutions the necessary power to adopt the measure in question (application by the European Parliament for annulment of a Council decision on Trans-european networks).
- The Court of Justice held that it had jurisdiction to review the content of a joint action adopted by the Council within the framework of the third pillar of the Treaty on European Union (cooperation in the field of justice and home affairs), the annulment of which was sought by the Commission. In that case the Court did not accept the arguments put forward by the Commission concerning airport transit arrangements and held that the Council had not encroached upon the powers of the Community.
- In Commission v Germany the Court stated that decisions adopted by the Commission with a view to ensuring compliance with the competition rules had to be adopted by the College of Commissioners and did not constitute measures of administration or of management.
- In a case where the Commission had awarded grants for projects seeking to overcome social exclusion, the Court observed that a basic act, that is to say an act of secondary legislation authorising expenditure, was necessary, except as regards non-significant Community action, and that in the circumstances it was for the Commission to demonstrate that the planned measure was not significant Community action (United Kingdom v Commission).
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