The Gazette 1983

GAZETTE

APRIL 1983

European Court of Justice

The E . E . C. Committee has prepared brief notes on a

selection of recent decisions of European Court of Justice

which might be of interest to Irish practitioners. We under-

stand that it is intended that further brief notes of this

nature will be prepared from time to time.

Practitioners should, of course, consult a full report of

any decision before giving advice based thereon.

1. 8/81

Becker

Finanzamt Munster-Innenstadt

—

Preliminary ruling under Article 177 of the Treaty of

Rome — Directive of direct effect — Sixth Council Dir-

ective on harmonisation of laws relating to VAT.

The Plaintiff Mrs Becker was a credit negotiator who

requested the Ge rman Tax Authorities that her transac-

tions be exempt from tax under the provisions of Article

13B (d) of the Sixth Directive which compels member

states to exempt from Value Add ed Tax inter alia "the

granting and the negotiation of credit" on or before 1st

January 19 79. Ge rmany had not implemented the

Directive.

H E L D — the provisions of the Sixth Council Direc-

tive N o . 7 7 / 3 8 8 / E EC of 17th May 1977 might be relied

on from 1st January 1979 by a credit negotiator and the

State might not rely as against her on its failure Jo imple-

ment the Directive. A s and from 1st January 1 9 79 tne

Directive b e c ame a direct application.

On 10th June 1 9 82 in case 2 5 5 / 81 -

R. A.

Grendel

GmbH

Finanzamt

fur Korperschaften

on a reference

for preliminary ruling under Article 177 of the Treaty of

Rome the Court in circumstances very similar to tne

Becker case gave nearly identical judgement and referred

specifically to its judgement in the Becker case.

2 76/81 —

S. A. Transporoute

Travaux

(Bruxelles)

Minister of Public Works (Luxembourg)

Preliminary ruling under Article 177 of the Treaty - free-

dom to provide services - directives on Public Works

Contracts.

i r M

The Court dealt with the interpretation of Council Dir-

ectives N o s . 71 / 3 0 4 and 71 / 3 0 5 dealing with the abolition

of restrictions on the freedom to provide services in respect

of Public Works Contracts and the award of Public Works

Contracts. A Belgian company submitted the lowest

tender for carrying out a Public Works Contract for the

Bridges and Highways Authority of Luxembourg, l h e

tender was rejected because:-

1. The Belgian company did not have a Government

Establishment Permit required by Luxembourg

2. Th e ' p r i c es in the tender were considered to be

abnormally low;

and the Contract was awarded to Luxembourg Con-

tractors

H E L D -

(1) Directive N o . 7 1 / 3 05 precludes a

Memb er State from requiring a tenderer from another

State to furnish proof that the criteria listed in Articles 23

- 26 of the Directive are satisfied and proof of his good

standing, including an Establishment Permit. (2) Direc-

tive N o 7 1 / 3 05 requires that the authority where it is of

the opinion that a tender is obviously abnormally low must

seek from the tenderer, before the award of the Contract,

an explanation of his prices or to inform the tenderer

which of his tenders appears to be abnormal and to allow

him a reasonable time within which to submit further

details.

3. 6/81 —

Industrie Diensten Groep B.V.

J. A.

Beele Handelmaatschappij

B. V. —

Preliminary ruling

under Article 177 of the Treaty of Rome — Free Mo v e-

ment of Go o ds — Servile imitations.

This case arose in the course of litigation between two

Dutch companies one of which was the sole importer of

goods manufactured in Sweden and marketed in the

Netherlands since 1 9 63 and the other of which had since

1978 marketed in the Netherlands similar goods manu-

factured in Germany. The Swedish goods had formerly

enjoyed patent protection inter alia in Ge rmany and the

Netherlands and the manufacture of the German goods

commenced only after the expiry of the patents.

H E L D — The rules of the E EC Treaty on the Free

Mov ement of Go o ds do not prevent a national law, apply-

ing to domestic and imported products alike, from allow-

ing a trader, who has in the E EC State in question market-

ed a product which differs from similar products, to obtain

an injunction against another trader restraining him from

continuing to market in that State a product coming from

another State in which it is lawfully marketed but which for

no compelling reason is almost identical to the first

mentioned product and thereby causes needless confusion

between the two products.

4. 102/81 —

Nordsee

Reederei Mond

andReederei

Friedrich Busse —

Preliminary ruling under Article 177

of the Treaty of Rome — Arbitration.

The case centered on proceedings regarding the per-

formance of a Contract entered into in 1973 by a number

of German Shipbuilders. The dispute was submitted to

o u n a n d F u l l . .

T h e b e s t

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los Pension

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30, Lr. Ab b ey St., Dublin 1. T c l : 7 3 2 3 3 3 , 7 2 9 9 22