Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

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61995J0188 European Court reports 1997 Page I-06783 12 it is apparent that that period applies without distinction to actions based on Community law and those based on national law. 50 It is true that the Court held in Emmott, at paragraph 23, that until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time. 51 However, as was confirmed by the judgment in Case C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483, at paragraph 26, it is clear from Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475 that the solution adopted in Emmott was justified by the particular circumstances of that case, in which the time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under a Community directive (see also Haahr Petroleum, cited above, paragraph 52, and Joined Cases C-114/95 and C-115/95 Texaco and Olieselskabet Danmark [1997] ECR I-0000, paragraph 48). 52 The reply to the seventh question must therefore be that Community law, as it now stands, does not prevent a Member State which has not properly transposed the Directive from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. Question 8 53 By its eighth question, the national court asks whether Article 10 of the Directive in conjunction with Article 12(1)(e) thereof gives rise to rights on which individuals may rely before national courts. 54 It is settled case-law that where the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon in national courts by individuals against the State where the State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly (see, in particular, Case C-236/92 Comitato di Coordinamento per la Difesa della Cava and Others v Regione Lombardia and Others [1994] ECR I-483, paragraph 8). 55 In this case, it is sufficient to observe that the prohibition laid down in Article 10 of the Directive and the derogation from that prohibition in Article 12(1)(e) are expressed in sufficiently precise and unconditional terms to be invoked by individuals in their national courts in order to contest a provision of national law which infringes the Directive. 56 The reply to the eighth question must therefore be that Article 10 of the Directive in conjunction with Article 12(1)(e) thereof gives rise to rights on which individuals may rely before national courts. DOCNUM 61995J0188 AUTHOR Court of Justice of the European Communities © An extract from a JUSTIS database 200
61995J0188 European Court reports 1997 Page I-06783 13 FORM Judgment TREATY European Economic Community TYPDOC 6 ; CJUS ; cases ; 1995 ; J ; judgment PUBREF European Court reports 1997 Page I-06783 DOC 1997/12/02 LODGED 1995/06/15 JURCIT 31969L0335-A10 : N 20 21 27 55 56 31969L0335-A10LA : N 21 31969L0335-A10LC : N 21 22 31969L0335-A11 : N 17 18 31969L0335-A12 : N 20 - 23 31969L0335-A12P1 : N 18 31969L0335-A12P1LE : N 18 28 34 55 56 31969L0335 : N 1 12 - 18 61976J0033-N05 : N 48 61976J0045-N17 : N 48 61976J0045-N18 : N 48 61978J0161-N11 : N 14 61979J0061-N16 : N 37 61981J0270-N14 : N 26 61982J0199-N12 : N 38 31985L0303 : N 1 61986J0036-N09 : N 18 61990J0208-N23 : N 50 61991J0071-N41 : N 27 61991J0071-N42 : N 27 61991J0071-N43 : N 29 32 61991J0071 : N 12 61991J0338 : N 51 11992E177 : N 36 37 61992J0236-N08 : N 54 61992J0410-N26 : N 51 61993J0312-N12 : N 39 61994J0002-N23 : N 21 61994J0090-N49 : N 49 61994J0090-N52 : N 51 61994J0197-N47 : N 37 61995J0114-N48 : N 51 61995J0192-N20 : N 38 61995J0261-N28 : N 48 CONCERNS Interprets 31969L0335-A10 Interprets 31969L0335-A12P1LE Interprets 31985L0303 SUB Taxation © An extract from a JUSTIS database 201
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