Category: Judgment of the court (sixth chamber) 1 april

Judgment of the court (sixth chamber) 1 april

The German Federal Office for Employment Bundesanstalt possessed a statutory monopoly on placing employees with employers. German law also allowed the Bundesanstalt after consulting with workers and employers associations to entrust other institutions or people with employment procurement services under its supervision.

It had become the practice that a number of executive recruitment businesses developed, to which the Bundesanstalt turned a blind eye. However, without the explicit approval of the Bundesanstaltacts, including contracts, which infringed the statutory provision were void under the German Civil Code. Macrotron GmbH had decided that they did not want the candidate.

In its defence, Macrotron argued that any contract was void. As a preliminary question, the European Court of Justice held that the Bundesanstalteven though it was a public body, could be subject to competition laws. It was an "undertaking", and therefore fell within the scope of the Treaty. Furthermore, by failing to satisfy demand for a good or service, the exclusive right of the German government to regulate employment services could amount to the abuse of a dominant position.

Employment procurement has not always been, and is not necessarily, carried out by public entities. That finding applies in particular to executive recruitment. Article 90 1 in fact provides that the Member States are not to enact or maintain in force, in the case of public undertakings and the undertakings to which they grant special or exclusive rights, any measure contrary to the rules contained in the Treaty, in particular those provided for in Articles 85 to A Member State is in breach of the prohibition contained in those two provisions only if the undertaking in question, merely by exercising the exclusive right granted to it, cannot avoid abusing its dominant position.

That does not mean that the abusive conduct in question must actually have affected such trade. A Member State which has conferred an exclusive right to carry on that activity upon the public employment agency is in breach of Article 90 1 of the Treaty where it creates a situation in which that agency cannot avoid infringing Article 86 of the Treaty.

That is the case, in particular, where the following conditions are satisfied:. That finding cannot be invalidated by the fact that a contract concluded between the recruitment consultants and the undertaking concerned includes the theoretical possibility of seeking German candidates resident in other Member States or nationals of other Member States. From Wikipedia, the free encyclopedia. Namespaces Article Talk. Views Read Edit View history. Help Community portal Recent changes Upload file.

Download as PDF Printable version. Add links. Judgment of the Court Sixth Chamber of 23 April It established that the courts of European Union member states have a duty to interpret national legislation in light of unimplemented European Union directives. Marleasing SA the Applicant brought an application before the Spanish national courts for an order that the contract establishing "La Comercial" was void and that the formation of La Comercial should be nullified on the grounds that establishment "lacked cause, was a sham transaction and was carried out in order to defraud the creditors of Barviesa a co-founder of La Comercial ".

The Spanish court then referred the following question to the European Court of Justice:. The ECJ held that the Spanish Courts were under a duty to interpret national law in a way that gave effect to European law.

It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article of the Treaty.

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From Wikipedia, the free encyclopedia. This section provides insufficient context for those unfamiliar with the subject. Please help improve the article by providing more context for the reader. February Learn how and when to remove this template message. Direct effect of European Union law.

Hidden categories: Wikipedia articles needing context from February All Wikipedia articles needing context Wikipedia introduction cleanup from February All pages needing cleanup All articles with unsourced statements Articles with unsourced statements from March Use dmy dates from April Namespaces Article Talk. Views Read Edit View history. Help Community portal Recent changes Upload file. Download as PDF Printable version. Eesti Edit links. European Court of Justice. Reference for a preliminary ruling.

Judge-Rapporteur Tom O'Higgins. Advocate General Walter van Gerven. Treaty articles. General principles.Toader RapporteurPresident of the Chamber, A.

Rosas and M. Safjan, Judges. Winters and J. Heller and K.

Marleasing SA v La Comercial Internacional de Alimentacion SA

Meessen, acting as Agents. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor.

The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen.

This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of the Brussels Convention and of the Regulations replacing it. The dispute in the main proceedings and the question referred for a preliminary ruling. It follows from the decision at issue that, untilthe discussions relating to prices, price increases and the introduction of new emission standards took place at the registered offices of the addressees of that decision and that from at least August onwards, discussions took place via German subsidiaries which, to varying degrees, reported to their head offices.

Consequently, it imposed fines on all participating entities, including DAF Trucks, with the exception of one entity which was granted immunity. As is apparent from the file before the Court, Tibor-Trans is a national and international freight transport company which, from the start of and untilincreasingly invested in the purchase of new trucks.

As an end user, Tibor-Trans could not make a direct purchase from the manufacturers, as it was obliged to use dealerships established in Hungary. It received financing from leasing companies, also established in Hungary, by means of financial leasing agreements involving definite transfer of ownership, and the finance company added the leasing costs and its own profit margin onto the price agreed by Tibor-Trans. The right of ownership over the vehicles was usually transferred to Tibor-Trans upon expiry of the leasing agreement, following performance of the obligations stemming therefrom.

It is not disputed in the case in the main proceedings that Tibor-Trans never purchased trucks directly from DAF Trucks. It follows from the request for a preliminary ruling that other companies governed by Hungarian law also made purchases during the period referred to by the decision at issue. In that regard, DAF Trucks submits, first, that the collusive meetings took place in Germany, which should entail the jurisdiction of the German courts and, second, that it never entered into a direct contractual relationship with Tibor-Trans, with the result that it could not reasonably expect to be sued in the Hungarian courts.

The referring court therefore asks whether the Hungarian courts may, however, base their jurisdiction on the place where the alleged damage occurred. The question referred relates solely to the determination of the place where the alleged damage occurred, consisting of additional costs incurred because of artificially high prices, such as those of the trucks covered by the cartel at issue in the main proceedings.

judgment of the court (sixth chamber) 1 april

It is also clear from the file before the Court that Tibor-Trans did not purchase trucks directly from the participants in the cartel at issue, as they were initially sold to Hungarian vehicle dealerships which passed the costs of the price increase on to the end users, such as Tibor-Trans.

As regards the nature of the damage alleged, it should be noted that it is not merely a financial consequence of the damage that could have been suffered by direct purchasers, such as Hungarian vehicle dealerships, and which could have consisted of a loss of sales following the price increase.

As regards the other specific circumstances pointed out by the referring court, linked to the fact that Tibor-Trans brought an action against only one of the undertakings involved in the infringement at issue, from which it did not obtain its supplies directly, it must be noted, as the Commission has done, that a single and continuous infringement of competition law involves the joint and several liability of all of the undertakings that committed the infringement.

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. Wagner, acting as Agents. On those grounds, the Court Sixth Chamber hereby rules:.Judgment of the Court Sixth Chamber of 23 April Freedom to provide services - Exercise of public authority - Competition - Executive recruitment consultants. Avis juridique important.

Summary Parties Grounds Decision on costs Operative part. Competition - Community rules - To whom addressed - Undertakings - Concept - Public employment agency engaged in employment procurement - Included.

Competition - Dominant position - Abuse - Undertaking with a statutory monopoly - Public employment agency engaged in employment procurement - Criteria for assessment. Freedom to provide services - Treaty provisions - Situations internal to a Member State - Not applicable.

A public employment agency engaged in the business of employment procurement may be classified as an undertaking for the purpose of applying the Community competition rules since, in the context of competition law, that classification applies to every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. As an undertaking entrusted with the operation of services of general economic interest, a public employment agency engaged in employment procurement activities is, pursuant to Article 90 2 of the Treaty, subject to the prohibition contained in Article 86 of the Treaty, so long as the application of that provision does not obstruct the performance of the particular task assigned to it.

A Member State which has granted it an exclusive right to carry on that activity is in breach of Article 90 1 of the Treaty where it creates a situation in which that agency cannot avoid infringing Article 86 of the Treaty. That is the case, in particular, where the following conditions are satisfied:.

judgment of the court (sixth chamber) 1 april

The provisions of the Treaty on freedom of movement cannot be applied to activities which are confined in all respects within a single Member State and therefore a recruitment consultant in a Member State may not rely on Articles 7 and 59 of the Treaty regarding the procurement of nationals of that Member State for posts in undertakings in the same State.

Mancini, President of the Chamber, T. O' Higgins, C. Kakouris, F. Schockweiler and P. Kapteyn, Judges. The dispute concerns fees claimed from that company by Messrs Hoefner and Elser pursuant to a contract under which the latter were to assist in the recruitment of a sales director. According to Paragraph 1, measures taken under the AFG are intended, within the economic and social policy of the Federal Government, to achieve and maintain a high level of employment, constantly to improve job distribution and thus to promote economic growth.

Paragraph 3 entrusts the attainment of the general aim described in Paragraph 2 to the Bundesanstalt fuer Arbeit Federal Office for Employment, hereinafter referred to as "the Bundesanstalt"whose activity consists essentially in bringing prospective employees into contact with employers and administering unemployment benefits.

The Bundesanstalt may, in exceptional cases and after consulting the workers' and employers' associations concerned, entrust other institutions or persons with employment procurement for certain professions or occupations. However, their activities remain subject to the supervision of the Bundesanstalt.

Paragraph of the AFG, contained in the sixth title thereof, which deals with the financial resources enabling the Bundesanstalt to carry out its activities on that basis, allows the Bundesanstalt to collect contributions from employers and workers. Paragraph provides that fines may be imposed for the conduct of any employment procurement activity in breach of the AFG.

That activity is carried on by recruitment consultants who assist undertakings regarding personnel policy.Judgment of the Court Sixth Chamber of 19 April European Court reports Page I Summary Parties Grounds Decision on costs Operative part.

It is for the national court to determine whether the works are incidental to the main object of the award.

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Mancini, President of the Chamber, M. Kakouris, F. Schockweiler and P. Kapteyn, Judges. Since the hotel in question was owned by the Municipality of Las Palmas, the second of the invitations to tender was issued by the Government of the Canary Islands on behalf of that municipality pursuant to a cooperation agreement between those two authorities. The conditions to be fulfilled by the tenderers include, in Article 2 1 c and i of that Annex, the following:.

However, the object of the undertaking may include the right to offer and provide the additional services referred to in Article 2 2 of these conditions of tender. Article 5 2 b provides that applications for the concession for the opening and installation of the gaming establishment are to be accompanied by a copy of the municipal authorization to undertake certain works and by a certificate confirming the completion of those works.

Article 2 2 b provides that the successful tenderer is to carry out the necessary works for the renovation, conversion and restoration of the installations so that the hotel and its surroundings can retain their five-star status and can offer the obligatory additional services.

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Article 3 3 of Annex II states that tenders relating to those works must specify the basic proposals for the works, the budgets for them and the time-limits for their completion. Are, therefore, 'authorities awarding contracts' which wish to award a contract having those characteristics obliged to publish a notice of that contract in the Official Journal of the European Communities?

Subparagraph a of that article states that such contracts are "contracts for pecuniary consideration concluded in writing between a contractor a natural or legal person and an authority awarding contracts The list of professional trade activities annexed to that directive mentions activities relating to construction. The first, which concerned a casino, was issued on behalf of the Autonomous Community of the Canary Islands, whilst the second, relating to the operation of a hotel, was issued on behalf of the Municipality of Las Palmas.

It sought to award that contract to an undertaking which would also assume responsibility for the operation of the hotel business. To that end, Article 2 of Annex II specified that eligibility to participate was to extend only to those undertakings which also submitted tenders for the award of the final concession for the installation and opening of the gaming establishment.

Those works were to be such as to make the premises suitable for the activities for which they were intended. In that regard, Article 3 3 g of Annex I imposed on that tenderer the obligation to indicate such additional works or works of adaptation as might prove necessary for the installation of the casino. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.We had an amazing time in Iceland and have been so excited to share stories of our vacation with friends and family.

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