ddrg/super_eurlex huggingface dataset:
4.

Recognition of a place of origin distinct from the place of recruitment entitles an official to the reimbursement of his travel expenses, calculated on a flat-rate basis, from the place of employment to the place of origin, in this case twice in each calendar year regard being had to the distance involved ( 1 ) and also, as regards annual leave spent at the place of origin, to travelling time which in this case amounts to five days. ( 2 ) Understandably, therefore, verification is necessary in order to ensure that the place of origin is correctly determined, hence criteria which are as accurate as possible are used for this purpose. It must be stated that the provision in question, which establishes the criterion of ‘heritable interests in the form of immovable property already built’, does not specify that such interests must consist of a right in rem in the property in question, vested in the official. It follows, therefore, that an official who is able to furnish proof of heritable interests in the form of a right in personam cannot be deprived a priori of the benefit of the provisions in question. Such interests, even in that form, may be evidence of a permanent link which is to be assessed in every individual case. In that regard, the Commission's argument to the effect that this would lead to an ‘unverifiable and therefore unacceptable’ situation in which an official could, merely by taking property on a lease, compel the Commission to treat the country of his choice as his place of origin cannot be upheld. In addition to the rule fraus omnia corrumpit, which makes it possible to thwart manœuvres of that kind, it should be borne in mind that a link based on property interests alone is not sufficient to determine the place of origin and that in order to do so it is necessary to satisfy at least the further requirement pertaining to family ties or citizen's interests. Hence, in my view, the Commission's decision refusing the applicant's request is not well founded.
3.

The Court then asked the Commission to inform it of the measures which had been adopted by the Member States to implement the directive, indicating the dates on which the measures were adopted, and it asked the Italian Government to inform it of the stage actually reached in the procedure for implementing the directive referred to in its defence. According to the reply received from the Commission six Member States have adopted implementing measures: Denmark (two laws adopted on 10 June 1981); United Kingdom (the Companies Act of 30 October 1981); France (a law adopted on 30 April 1983; Ministerial Decree of 17 April 1982 publishing the new form for companies' accounts; Decree of 22 November 1983); Belgium (two laws adopted on 1 July 1983 and 5 December 1984; Royal Decrees adopted on 12 September 1983); Netherlands (a law adopted on 7 December 1983; Decrees of 22 and 23 December 1983); Luxembourg (a law adopted on 4 May 1984). Two actions for failure to fulfil obligations are pending before the Court against the Federal Republic of Germany (Case 18/85) and against Ireland (Case 16/85). Note that in the case of Germany a law dated 19 December 1985 concerning the adoption of the Fourth, Seventh and Eighth Directives of the Council harmonizing company law is scheduled to enter into force on 1 January 1987. As regards Ireland, a draft law is at present before the Irish parliament (the Dail), and its provisions may be adopted in the course of the first quarter of 1986. Finally, proceedings against Greece for breach of its obligations have been initiated under Article 169 of the EEC Treaty. The reply of the Italian Government was that the draft law, although at an advanced stage, was still in the course of preparation. At the hearing the representative of the Italian Government declared that the situation had not changed.
54.

Lastly, as regards Article 17 of the Decree on Birds, the Netherlands Government contends that the authorization provided for therein applies only to the capture and killing of birds declared not to be protected under Article 2 of the decree. However, as I have shown in my analysis of the first complaint, the scope of Article 2 is excessively general, and, consequently, cannot be regarded as covered by the power to derogate contained in Article 9 of the directive; it must therefore be concluded that the scope of Article 17 is wider than that permitted by the directive.
Opinion of Mr Advocate General Lenz delivered on 29 January 1987. - Commission of the European Communities v Kingdom of Belgium. - Implementation of a directive - Community driving licence. - Case 9/86.



European Court reports 1987 Page 01331



Opinion of the Advocate-General

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Mr President,

Members of the Court

1 . I can be very brief in my Opinion in the Treaty infringement proceedings with which the Court has been concerned this morning .

2 . The applicant, the Commission of the European Communities, claims that the Court should declare that by failing to adopt within the prescribed period the laws, regulations or administrative provisions necessary in order to comply with Council Directive 80/1263 of 4 December 1980 ( 1 ) on the introduction of a Community driving licence the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty and should be ordered to pay the costs .

3 . The defendant has not expressly formulated any conclusions .

4 . Under Article 12 ( 1 ) of the directive the Member States had in good time and at the latest by 30 June 1982 to adopt the laws, regulations or administrative provisions necessary for the implementation of the directive from 1 January 1983 . It is not denied that that was not done .

5 . Accordingly I propose that a declaration should be made in the terms sought and that the defendant should be ordered to pay the costs .

(*) Translated from the German .

( 1 ) Official Journal L 375 of 31 December 1980, p . 1 .
Opinion of Mr Advocate General Lenz delivered on 7 April 1987. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Failure to transpose into national law Council Directive 82/76/EEC with regard to full-time and part-time training for medical specialists. - Case 49/86.



European Court reports 1987 Page 02995



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . I can be brief in my Opinion on the action concerning an infringement of the Treaty which is now before the Court .

2 . The Commission of the European Communities, the applicant, is seeking a declaration that, by failing to lay down by law, regulation or administrative action within the prescribed period the provisions necessary for its rules to comply, with regard to full-time and part-time training for medical specialists, with Council Directive 82/76/EEC of 26 January 1982, ( 1 ) the Italian Republic has failed to fulfil its obligations under the EEC Treaty . The Italian Republic does not deny the infringement of the Treaty complained of and has put forward no express conclusions . It merely stated that some of the provisions of the directive, which however are not the subject-matter of these proceedings, are already applicable in its internal legal system .

3 . According to Article 16 of Directive 82/76/EEC Member States are to take the necessary measures to comply with the directive by 31 December 1982 at the latest . It is not disputed that the Italian Republic has not fulfilled that obligation .

4 . I therefore propose that the application be allowed and that the Italian Republic be ordered to bear the costs .

(*) Translated from the German .

( 1 ) Council Directive of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services and Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors .
Opinion of Mr Advocate General Lenz delivered on 13 November 1990. - J. Cholay and société "Bizon's Club" v Société des auteurs, compositeurs et éditeurs de musique (SACEM). - Reference for a preliminary ruling: Cour d'appel de Paris - France. - Copyright management - Disparities between national laws. - Case C-270/86.



European Court reports 1990 Page I-04607

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Opinion of the Advocate-General

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Mr Advocate General Lenz delivered his Opinion on 13 November 1990 . (*)

He concluded by proposing that the Court should reply to the reference from the Cour d' appel, Paris in the same terms as paragraph 1 of the operative part of the judgment in Case 402/85 . ( 1 )

(*) Original language : German .

( 1 ) Case 402/85 Basset v SACEM [1987] ECR 1747 .
Opinion of Mr Advocate General Mischo delivered on 28 February 1989. - SC Belasco and others v Commission of the European Communities. - Competition - Application of Article 85 of the EEC Treaty to an agreement concerning roofing felt. - Case 246/86.



European Court reports 1989 Page 02117



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The new hearing held in Case 246/88 on 14 February 1989 did not bring to light any fresh information such as to prompt me to change the first Opinion which I delivered in this case on 5 May 1988 . I therefore now confirm the reasoning set out in that Opinion and the conclusion which I reached .

2 . I should merely like to make one clarification regarding the problem of the effect on trade between Member States . For the reasons given in my first Opinion, I am convinced that there has been such an effect in the present case .

3 . But I do not share the opinion that in the case of a purely national agreement it is permissible to conclude that trade between Member States has been affected solely because the structure of competition within that Member State has been changed in such a way that imports encounter conditions different from those which would have prevailed in the absence of the agreement . It seems to me that if such a principle were upheld, the great majority of purely national agreements would be deemed to affect trade between the Member States and would be caught by Article 85 . I do not think that such a result is in conformity with the spirit of that provision .

(*) Original language : French .
Opinion of Mr Advocate General Van Gerven delivered on 1 June 1989. - Tipp-Ex GmbH & Co. KG v Commission of the European Communities. - Competition - Article 85 of the EEC Treaty - Exclusive distribution agreement - Prohibition of parallel imports. - Case C-279/87.



European Court reports 1990 Page I-00261

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Opinion of the Advocate-General

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Mr Advocate General Van Gerven delivered his Opinion on 1 June 1989 . (*) He proposed that the Court should :

( i ) dismiss the application;

( ii ) order the applicant to pay the costs .

(*) Original language : Dutch .
Opinion of Mr Advocate General Jacobs delivered on 19 April 1989. - Commission of the European Communities v Kingdom of the Netherlands. - Failure of a State to fulfil its obligations - Obligation to become affiliated to a supervisory body for importing and exporting plant propogation material. - Case 43/88.



European Court reports 1989 Page 01649

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Opinion of the Advocate-General

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Mr Advocate General Jacobs delivered his Opinion on 19 April 1989 . (*) He considered that the Court should declare that, by laying down a requirement of affiliation to a national inspection agency for the importing, exporting and offering for export of propagating material for agricultural plants, for vegetables and spices, and for fruit trees and certain other trees, the Kingdom of the Netherlands had failed to fulfil its obligations under Regulations Nos 234/68 and 2358/71 and, in respect of seed potatoes, under Articles 30 and 34 of the EEC Treaty; the Netherlands should be ordered to pay the costs .

(*) Original language : English .
Opinion of Mr Advocate General Lenz delivered on 12 July 1989. - Commission of the European Communities v Council of the European Communities. - Agriculture - Undesirable substances and products in animal nutrition - Legal basis. - Case C-11/88.



European Court reports 1989 Page 03799

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Opinion of the Advocate-General

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Mr Advocate General Lenz delivered his Opinion on 12 July 1989 . (*) He proposed that the Court should :

( 1 ) declare void Council Directive 87/519/EEC of 19 October 1987 amending Directive 74/63/EEC on undesirable substances and products in animal nutrition;

( 2 ) Order the Council to pay the costs .

(*) Original language : German .
Opinion of Mr Advocate General Jacobs delivered on 28 June 1989. - Amministrazione delle finanze dello Stato v Società Politi & Co. Srl. - Reference for a preliminary ruling: Corte d'appello di Venezia - Italy. - Health inspection charges on imports of pigmeat from non-member countries. - Case 214/88.



European Court reports 1989 Page 02785

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Opinion of the Advocate-General

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Mr Advocate General F . G . Jacobs delivered his Opinion on 28 June 1989 .(*) He concluded that the Court should rule as follows :

As regards veterinary and public health inspections of fresh, chilled or frozen pigmeat imported from third countries in the period 1971 to 1974, Article 9 of Council Directive 64/433/EEC in conjunction with Article 17(2 ) of Council Regulation No 121/67/EEC derogates from the prohibition on the imposition of health inspection charges to the extent necessary to ensure non-discriminatory treatment, on the one hand, of traders who put such products on the market in intra-Community trade and thereby become liable to pay health inspection charges and, on the other hand, of those who imported from third countries, provided that those charges do not exceed the actual cost of the inspections .

(*) Original language : English .
Opinion of Mr Advocate General Jacobs delivered on 19 October 1989. - Commission of the European Communities v Kingdom of Belgium. - Failure of a State to fulfil its obligations - Transposition of a directive. - Case C-360/88.



European Court reports 1989 Page 03803

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Opinion of the Advocate-General

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Mr Advocate General Jacobs delivered his Opinion on 19 October 1989 . (*) He proposed that the Court should declare that the Kingdom of Belgium had failed to fulfil its obligations by failing to adopt within the prescribed period all the provisions necessary to comply with Council Directive 84/450 and that the Kingdom of Belgium must be ordered to pay the costs .

(*) Original language : English .
Opinion of Mr Advocate General Mischo delivered on 11 October 1989. - Mathilde Becker and Josyane Starquit v European Parliament. - Officials - Reinstatement after secondment. - Joined cases C-41/88 and C-178/88.



European Court reports 1989 Page 03807

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Opinion of the Advocate-General

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Mr Advocate General Mischo delivered his Opinion on 11 October 1989 . (*) He proposed that the Court should dismiss both applications as unfounded and order the parties to bear their own costs, in accordance with Article 70 of the Rules of Procedure .

(*) Original language : French .
4.

Before answering the questions submitted, there is a further point I wish to make. The national court points out that its decision to refer a question to the court for a preliminary ruling also stems from the fact that since the dispute between Alsthom and the Netherlands purchaser has been submitted to arbitration, Alsthom cannot in its own defence ask the arbitration tribunal to submit a reference for a preliminary ruling since an arbitration tribunal is not qualified to bring a matter before the Court of Justice. In that connection the national court considers that Sulzer, on the other hand, is able to make such a request in the proceedings pending before it. ( 3 ) The order for reference further states that Alsthom has expressly declared that it supports Sulzer's request. ( 4 ) In the same passage the national court also takes formal note of Sulzer's assertion that it and Alsthom are undertakings engaged in the same specialized field, in which case, as stated above, a clause limiting liability stipulated between them is valid. It may be inferred from all those factors that the question submitted for a preliminary ruling is not relevant to the contractual relationship between Alsthom and Sulzer and that the national court has raised it only in support of Alsthom's position in the arbitration proceedings. Has the question submitted to the Court actually been raised before the national court seeking the ruling as required by Article 177 of the EEC Treaty? Recently the Court stated in its judgment in Pardini ( 5 ) that the power to seek a preliminary ruling from the Court is conferred on the national courts solely in order to enable them to resolve disputes before them, ( 6 ) and that it follows from both the wording and the scheme of Article 177 that only a national court or tribunal which considers that the preliminary ruling requested is necessary to enable it to give judgment is entitled to make a reference to the Court. ( 7 ) At the hearing, Sulzer's representative expressed the view that since Sulzer was in fact an undertaking engaged in a different specialized field from Alsthom, it could not rely on a clause limiting liability against Alsthom and it was therefore also adversely affected by the case-law called in question in the reference for a ruling. Furthermore, still according to the view taken by Sulzer at the hearing, Alsthom and the Netherlands purchaser terminated the arbitration proceedings by means of a settlement which stipulates, inter alia, that all the claims which the Netherlands purchaser was able to rely upon against Alsthom had been assigned to Alsthom, with the result that the latter may assert them against Sulzer. In those circumstances there are no grounds for calling in question the jurisdiction of the Court to answer the question referred to it for a preliminary ruling.
‘(1)

A motor vehicle is to be regarded as designed for the transport of both passengers and goods for the purposes of subheading 87.02 A of the Common Customs Tariff in the version in force in 1983 only if, behind the driver's seat or bench, it has folding or removable seats or specially fitted spaces for such seats, side windows, a side or rear door or tail-gate and an interior finish similar to that of a vehicle designed solely for the transport of passengers.
17.

It is apparent from the rules of the Lomé Convention and emphasized in the Court's case-law that there is a clear division of powers between the ACP States and the Community. In this connection the Court has stated, ‘contracts financed by the Fund (EDF) remain national contracts which the authorities of each ACP State have the power to prepare, negotiate and conclude. It is for the Commission, on the other hand, to adopt on behalf of the Community the financing decisions required for the implementation of the projects and programmes decided upon in agreement with the ACP States’. ( 3 ) The Court has stressed that it is clear from the Convention that ‘the measures adopted by the Commission's representatives during that procedure, whether approvals or refusals to approve, endorsements or refusals to endorse, are solely intended to establish whether or not the conditions for Community financing are met. They are not intended to interfere with the principle that the contracts in question remain national contracts which the ACP States alone are responsible for preparing, negotiating and concluding, and they cannot have that effect’ (emphasis added). ( 4 ) The Court has further stated in connection with the competent Community body's responsibilities that: ‘... the Commission has not only the right but also the duty, as part of the responsibilities conferred upon it for the proper management of the resources of the fund, to ensure that the appropriate procedural rules are complied with and that the tender selected is economically the most advantageous, taking into account in particular the qualifications of and the guarantees offered by the tenderers, the nature and conditions of execution of the works and the price, utilization costs and technical value of those works’ (emphasis added). ( 5 ) Similarly the Court has stated that the body which acts on the Community's behalf ‘is not only entitled but is in fact under a duty to obtain [the] information necessary for it in fulfilment of the responsibilities conferred on it to ensure the economical administration of the resources of the European Development Fund.’ ( 6 )
12.

(b) At the hearing, on the other hand, it focused its argument on the interests of undertakings (contractors) from other Member States. It contends that in any case such undertakings have a manifest interest in having part of the works awarded carried out by local undertakings since an undertaking from another Member State will not as a rule move with its whole organization and its whole labour force to the Member State in which the works are to be carried out. The contested provisions are consistent with the normal conduct of any undertaking established abroad and therefore contain no restriction on the freedom to provide services. In that connection it goes on to refer to a procedure with regard to another Italian law, since repealed, which the Commission regarded as inconsistent with Article 59. The restriction in that law — on the opportunities for successful tenderers to have works carried out by third-party undertakings — was held by the Commission to discriminate against undertakings from other Member States since the latter are in general dependent upon local undertakings for the execution of less specialized work. The Italian Government argues that, from that standpoint, which it accepted, it is illogical at this stage to challenge a provision which takes account of the abovementioned situation of foreign undertakings.