The Juzgado de Primera Instancia e Instrucción No 1, Oviedo, Spain, referred the ECJ for a preliminary ruling in proceedings pending between Marleasing SA and La Comercial Internacional de Alimentación S.A. on the interpretation of Article 11 of the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by the Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, to make such safeguards equivalent throughout the Community. 

Marleasing claimed that the founders’ contract that establish La Comercial is void on the ground that the establishment of the company lacked cause, was a sham transaction and was carried out to defraud the creditors, which is illegal under Spanish law. 

La Comercial, from its part, alleged that Article 11 of Directive 68/151, which lists exhaustively the cases in which the nullity of a company may be ordered, did not include lack of cause.

In this context, the national court asked the ECJ if Article 11 of Council Directive 68/151/EEC of 9 March 1968, is directly applicable even if it has not been implemented in the national law.

The ECJ ruled that a national court must interpret its national law in the light of the wording and the purpose of the community law, in this specific case following a directive even if it was not implemented in the national legal system. 

[1] Judgment of the Court of 13 November 1990. C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion S.A, ECLI:EU:C:1990:395.

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The Pretura Penale, Milan (Italy) referenced to the ECJ for a preliminary ruling in the action pending before that court between Pubblico Ministero (public prosecutor) and Tullio Ratti, on the interpretation of Council Directive NO 73/173/EEC of 4 June 1973, related to the classification, packaging and labelling of dangerous preparations (solvents) and Directive NO 77/728/EEC of 7 November 1977, related to the classification, packaging and labelling of paints, varnishes, printing-inks, adhesives and similar product. 

In the main case, Tullio, that sold solvents and varnishes, was prosecuted for failure to comply with an Italian law NO 245 of 5 March 1963 that require manufacturers of products containing benzene, toluene and xylene to affix to the containers of those products labels indicating, not only the fact that those substances are present, but also their total percentage and, separately, the percentage of benzene.

Tullio argued that his business complied with these two Directives, so he should not have to comply with that stricter Italian law. He also understood that the Italian law entered in conflict with these two Directives. 

He defended that the Italian government did not incorporate the Directive NO 73/173 of 4 June 1973 to its internal legal order within the mandatory established period, and that therefore, if it had been implemented, that would have meant the repeal of the Italian law, which he was charged with contravening. 

The ECJ ruled that a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its failure to perform the obligations which the directive entails, clarifying in this way that after the expiration of the period fixed for the implementation of a directive a Member State may not apply its internal law which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive. 

However, the ECJ specified that being the Directive NO 73/173 to which the term to incorporate it into the internal legal system has expired, is the only one the applicant can rely on and not in the Directive 73/173, since its term of incorporation had not expired yet. 

[1] Judgment of the Court of 5 April 1979, Tullio Ratti, Case 148/78, ECLI:EU:C:1979:110. Paragraph 22 and 24

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The Pretoria di Susa ( Italy ) reference the European Court of Justice (ECJ) for a preliminary ruling in the case pending between Amministrazione delle Finanze Sello Stato (Italian Finance Administration) and Simmenthal S.P.A, where Simmenthal brought an action against the Amministrazione delle Finanze dello Stato claiming the repayment of fees it had been charged for the medical inspection of meat, which it had imported into Italy from France, imposed by an Italian law from 1970. 

Simmenthal alleged that Italian law No. 1239 of 30 December 1970, was incompatible with the free movement of goods (article 30 of the ECC Treaty) and thus, in conflict with the Community law, in particular with the Regulation (EEC) No. 805/68 of the Council of 27 June 1968 on the Common Organization of the Market in Beef and Veal. 

From the other part, the importer argued that Italian Law was passed after EU provisions came into force and that, therefore, it prevails over Community Regulations. 

The question then from the national Courts was if the Italian law even if it is contrary to Community law, but since it was subsequent, it should be applied or not until it is declared invalid. 

In this respect, the national court asked about the interpretation of article 189 of the EEC Treaty concerning the effects of the direct applicability of a community law if it conflicts with any provisions of national law. 

The ECJ clarified that the principle of the precedence of Community law (supremacy of EU law), means not only that the entry into force render automatically inapplicable any conflicting provision of current national law but also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions.

In consequence, the ECJ ruled that these charges were incompatible with EU law and contrary to the Treaty. 

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The Commission of the European Communities brought an action for failure to fulfil obligations against the French Republic, asking the Court of Justice to declare that by failing to take all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals, the French Republic has failed to fulfil its obligations under the common organization of the markets in agricultural products and Article 30 in conjunction with Article 5 of the EC Treaty.

The French authorities are especially denounced for their passivity and lack of action in the face of acts of violence committed by individuals and by protest movements of French farmers against agricultural products from other Member States, such as Spain, the United Kingdom, Denmark, among others.

The court of justice has concluded that France has indeed breached its obligations to protect the free movement of goods and in consequence, it violates Article 30 of the EC Treaty, concerning the elimination of all barriers, whether direct or indirect, actual or potential, to flows of imports in intra-Community trade, because this Article does not prohibit solely measures emanating from the State which, in themselves, create restrictions on trade between Member States, but also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State.

Furthermore, the Court has rejected the allegations of the French state, considering that the economic grounds can never serve as justification for barriers prohibited by Article 30 of the Treaty and that a Member State may not unilaterally adopt protective measures or conduct itself in such a way as to obviate any breach by another Member State of rules of Community law.

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The Consiglio Nazionale Forense (a national court of Italy) referred a reference for a preliminary ruling to the European Court of Justice on the interpretation of Council Directive 77/249/EEC of March 22, 1977, a relative of freedom of lawyers to provide services, to give a judgment in the main proceedings pending between Reinhard Gebhard and Consiglio dell’ Ordine degli Avvocati e Procurator di Milano.

Mr Gebhard, a German national, authorized to practise as a Rechtsanwalt in Germany and a member of the Bar of Stuttgart, was accused of contravening his obligations under Law No 31 of February 9, 1982, on freedom for lawyers who are nationals of a Member State of the European Community to provide services, because he was pursuing professional work in Italy as an advocate in his chambers in Milan, but his main customers were German.

Some Italian lawyers reported him to the Milan Bar Council, which gave him a disciplinary sanction, prohibited him from using the title avvocato and denied his request for registration in the list of lawyers in that Bar Council. So that, Gebhard challenged the compatibility of Italian domestic law with Community law.

Article 2 of Italian Law No. 31 of February 9, 1982, which implemented the Directive of Council Directive 77/249 / EEC of March 22, 1977, allowed nationals of other Member States to practice as lawyers in that State, as long as it is temporary.

The national court asked the CJEU if opening an establishment to practice already implies that it is not temporary and should be understood by quick activities.

The ECJ understood that the two chapters (freedom to provide services and freedom of establishment) are mutually exclusive since the Chapter on Services applies where the provider of services moves to another Member State to pursue his activity temporarily, while the right of establishment refers to the right to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit from that place.

The ECJ held that a national lawyer of any other Member State should have the right to establish on the territory of other State and pursue the activity there, due to the freedom of establishment. That right can be only limited if there are national measures, but only as long as those rules are proportional, necessary, justified by general interest and applied in a non-discriminatory manner.

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The Cour d’Appel (Appeal Court), Liège, referred to the ECJ for a preliminary ruling a set of questions on the interpretation of Articles 48, 85 and 86 of the EEC Treaty, to rule in the main proceedings, where Mr Bosman, a professional footballer of Belgian nationality, that was employed from 1988 by RC Liège brought an action against RC Liège, as well as against the Belgian Football Association and UEFA, for understanding that his Freedom of the contract was hampered, that the transfer rules and nationality clauses did not apply to him and for suffering the loss of profit due to the regulations relating to transfers.

Mr Bosman refused to sign a new contract for RC Liège and was put on the transfer list. Since no club showed an interest in a compulsory transfer, Mr Bosman made contact with US Dunkerque. On 27 July 1990, a contract was concluded between RC Liège and US Dunkerque for the temporary transfer of Mr Bosman for one year, against payment by US Dunkerque to RC Liège of a compensation fee of BFR 1 200 000 payable on receipt by the Fédération Française de Football (“FFF”) of the transfer certificate issued by URBSFA. The contract gave US Dunkerque an irrevocable option for the complete transfer of the player for BFR 4 800 000. However, both contracts were subject to the suspensive condition that the transfer certificate must be sent by URBSFA to FFF in time for the first match of the season, which was to be held on 2 August 1990.

RC Liège, which had doubts about US Dunkerque’s solvency, did not ask URBSFA to send the said certificate to FFF. As a result, neither contract took effect.
On 31 July 1990, RC Liège also suspended Mr Bosman, preventing him from playing for the entire season.

The exact questions referred to the Court of Justice in the preliminary ruling were if Articles 48, 85 and 86 of the EEC Treaty should be interpreted as prohibiting a football club from requiring and receiving payment of a sum of money upon the engagement of one of its players who has come to the end of his contract by a new employing club and as prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize.

The ECJ in response held that Article 48 of the EEC Treaty precludes the application of rules laid down by sporting associations, under which a professional footballer who is a national of one Member State may not, on the expiry of his contract with a club, be employed by a club of another Member State unless the latter club has paid to the former club a transfer, training or development fee. It also opposes the application of rules laid down by sporting associations under which, in matches in competitions they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.
Therefore, the CJEU considered transfer compensation and foreigner quotas illegal when applied to citizens of the European Union.

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In this preliminary ruling, the European Court of Justice was asked questions concerning the interpretation of Community law relating to the extent of the power of national courts to grant interim relief where rights claimed under Community law are at issue.

In the main proceedings, the Secretary of State for Transport by Factortame Ltd and other companies incorporated under the laws of the United Kingdom, and also the directors and shareholders of those companies, most of whom are Spanish, were affected by a British legislative change (Section 14 of the Merchant Shipping Act 1988 and the Merchant Shipping) that supposed the creation of a new Register in which only British fishing vessels could register and as long as most of its owners are of British nationality.

The Spanish fishing company argued that the United Kingdom had violated European Community law since this legislation required that the owners of the vessels should be British to be registered in the United Kingdom.

Those vessels were about to be deprived of the right to engage in fishing from 1 April 1989. For this reason, the companies in question challenged the compatibility of Part II of the 1988 Act with Community law. They applied for interim relief until final judgment was given on their application for judicial review.

The Divisional Court of the Queen’s Bench Division) ordered the provisional suspension of the application of Part II of the 1988 Act and the 1988 Regulations. However, the Secretary of State for Transport appealed against this order holding that under national law, the courts had no power to suspend the application of Acts of Parliament by way of interim relief.

In response, the ECJ ruled that Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of federal law must set aside that rule, and that, therefore, it is up to the national courts, in the application of the principle of cooperation established in Article 5 of the EEC Treaty, to guarantee the legal protection that people derive from the direct effect of the provisions of Community law.

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In the case Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v Commission of the European Economic Community, the applicants brought an action for annulment of the Decision of the Commission of 23 September 1964, where the Commission of the European Economic Community decided that Consent and Grundig had infringed European competition rules under Article 85 of the Treaty.

In the main dispute, Grundig held an exclusive distribution agreement with, Constant which was appointed as the sole representative to distribute only Grundig’s products and only in France, while the Grundig will only deliver them the Content, including the prohibition on Consten to export the products. However, UNEF company bought electrical appliances from German distributors who offered them despite the export ban, and UNEF resold them in France. As a reply, Constant filed actions against the UNEF, but the Commission of the European Economic Community decided that Consten and Grundig were the ones that had infringed European competition rules.

The applicants submit in action for annulment that the prohibition in Article 85(1) applies only to so-called horizontal agreements and maintained that the Commission has relied on a mistaken interpretation of the concept of an agreement which may affect trade between member states and has not shown that such work would have been more significant without the agreement in dispute.

The European Court of Justice had to decide whether the contested Decision duly applied the prohibition in Article 85(1) to the agreement at issue because of the restriction of competition which entailed solely concerning the distribution of Grundig product.

The applicant Grundig argued that the Commission did not properly exclude from the prohibition those clauses of the contract in respect of which there was found no effect capable of restricting competition and that it thereby failed to define the infringement.

The ECJ clarified the provision in article 85(2 ) that agreements prohibited according to Article 85 shall be automatically void applies only to those parts of the deal which are subject to the prohibition or the agreement as a whole if those parts do not appear to be severable from the contract itself.

Consequently, the ECJ ruled that Article 1 of the contested decision must be annulled so far as it renders void, without any valid reason, all the agreement clauses under Article 85(2).