The Gazette 1983

APRIL 1983

GAZETTE

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. — 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 v. 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. 1. 8/81 Becker v. Finanzamt Munster-Innenstadt 2 76/81 — S. A. Transporoute Travaux (Bruxelles) v. 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; r 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 et

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. 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. 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 4. 102/81 — Nordsee v. Reederei Mond

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