ddrg/super_eurlex huggingface dataset:
4.

I would preface my remarks by stating that the Portuguese Government, the Public Prosecutor attached to the Tribunal Fiscal Aduaneiro and, to a lesser extent, the Commission have expressed strong doubts about the relevance of the questions referred to the Court. I must state that, with the exception of the eighth question, which in any event needs reformulating and with which I shall be dealing later, I consider those reservations to be completely justified. In view of the matters at issue, it is incomprehensible how the Court's replies to the questions as formulated could be useful to the national court for the purposes of giving judgment in the proceedings pending before it; in fact, the Court seems to be being asked to set out in completely general, abstract terms an assessment of the compatibility of the Portuguese legislation with Community law on the basis of domestic provisions which have nothing to do with the subject-matter of the proceedings and therefore go beyond the function conferred on the Court by Article 177 of the Treaty. It appears from the wording of Article 1 77 and from that which the Court itself has held that the procedure provided for in Article 177 of the Treaty is an instrument of cooperation between the Court of Justice and the national courts whereby the former supplies the latter with information on the interpretation of Community law which is necessary in order to enable them to settle disputes which are brought before them; ( 1 ) moreover, Article 177 does not confer on the Court the function of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. ( 2 ) Moreover, by way of implementation of those principles the Court has, on the one hand, consistently refused to reply to questions put by national courts where it was plain that the provision of Community law in question could not be applied ( 3 ) and, on the other hand, has very often reformulated questions inappropriately put by national courts. The Court has in fact consistently held that, as regards the division of jurisdiction between the national courts and the Court of Justice under Article 177 of the Treaty it is for the national court, which is alone in having a direct knowledge of the facts of the case and of the arguments put forward by the parties, and which will have to give judgment in the case, to appreciate, with full knowledge of the matter before it, the relevance of the question of law raised by the dispute before it and appreciate the necessity for a preliminary ruling so as to enable it to give judgment. ( 4 ) However, the Court has also held that it is for the Court, when faced with questions which are not framed in an appropriate manner or which go beyond its functions under Article 177, to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of Community law which require interpretation or whose validity is at issue, having regard to the subject-matter of the dispute. ( 5 )
4.

I propose to consider the three complaints against the Greek Government separately, in the order listed. With respect to the first complaint, regarding the prohibition of the importation of chickens because of the alleged presence of salmonella, I feel I should begin by recalling in greater detail the facts which gave rise to the present proceedings. It appears from the documents in the case that the Greek authorities did in fact confiscate 90 tonnes of chickens in June 1987 after detecting the presence of ‘infantis’ and ‘Vir-chow’ serotypes on the goods. However a counter-analysis carried out in December 1987 by a veterinary expert designated by the exporting company on the basis of Article 10 of Directive 71/118/EEC ( 6 ) resulted in the conclusion that the presence of the salmonella found by the Greek authorities was in all probability due to post mortem contamination of the meat. According to the expert, the disparity between the results of the microbiological tests carried out in France (entirely negative) and those carried out in Greece (partly positive) was attributable to the difference between the method of analysis used by the Greek veterinary experts, which was to take a 25-gramme sample of skin, subcutaneous tissue and pectoral muscle, and that employed by the French veterinary experts, which involved removing the skin and cauterizing the muscle surfaces. A further expert report, using other samples, substantially confirmed the earlier results: traces of salmonella were found on two samples analysed according to the Greek method but the samples analysed according to the French method again yielded negative results.
15.

Although the Treaty does not make any express provision in regard to sanctions imposed by national authorities, the Court has interpreted Article 5 of the Treaty as requiring Member States to impose sanctions, in certain circumstances, for breaches of Community regulations. In Case 50/76 Amsterdam Bulb v Produktschat voor Siergewassen [1977] ECR 137, which concerned the question whether the Netherlands was permitted to take certain measures relating to the fixing of export prices for flower bulbs which were not contained in the regulations establishing a common organization of the market in such produce, the Court observed, at paragraph 33 of the judgment: ‘... in the absence of any provision in the Community rules providing for specific sanctions to be imposed on individuals for a failure to observe those rules, the Member States are competent to adopt such sanctions as appear to them to be appropriate’. In Case 68/88 Commission v Greece [1989] ECR 2965, the Court however went further, stating, at paragraphs 23 to 25 of the judgment, that: ‘It should be observed that where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. Moreover, the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.’ Thus, even where Community legislation does not provide sanctions for its infringement — and it is to be noted that, in both the judgments cited above, the Court leaves open the possibility that Community legislation might so provide — the freedom of action of Member States is none the less constrained by their duty, under Article 5 of the Treaty, to cooperate in the achievement of the Community's objectives. Where the purpose of Community rules would not be fully attained without the imposition of sanctions, Member States must ensure that adequate penalties are available.
18.

Certainly, the concerns expressed by the national court and the Commission about the risk of fraud are legitimate. It is necessary to prevent the price of the goods from being artificially reduced in order to diminish the customs value, the seller receiving, in the form of exorbitant interest, payment for part of the normal value of the goods. It is in order to take account of that concern that the new Article 3 of Regulation No 1495/80 requires the financing arrangement to have been made in writing and requires the buyer to demonstrate, where required by the customs authorities, that such goods are actually sold at the price declared and that the interest rate does not exceed ‘the level for such transactions prevailing’ in the country where, and at the time when, the finance was provided. Since, moreover, the amount of the interest has to be shown separately, it is not very difficult for the customs authorities to ascertain the interest rate agreed and to compare it with the rates prevailing in the country concerned.
12.

As we have seen, the objective of Article 7(1 )(b) is to eliminate fiscal obstacles to company regrouping and reconstruction operations. The Commission suggests therefore that the provision is to be interpreted as covering all transfers of a business activity which are calculated to promote the regrouping and development of the undertakings concerned. It is apparent from the wording of Article 7(1 )(b) that, where all the assets and liabilities of a capital company are transferred to a new company, the transfer automatically qualifies for the reduced rate of duty under that provision. Where, however, only part of the assets are transferred, a further requirement is laid down. It is not sufficient that one or more assets be transferred; the assets must in addition form part of a business (‘branche de leur activité’, ‘Zweig ihrer Tätigkeit’). The essential requirement therefore seems to be that the assets must be transferred as a trading entity. As is apparent from the Court's judgment in Muwi Bouwgroep, cited above at paragraph 8, the assets transferred must form a whole capable of some degree of independent functioning: they must be more than a mere collection of individual assets. It could also be expected that the transfer of assets might, depending on the circumstances, be accompanied by the transfer of some of the transferor's liabilities, certain intangible assets such as intellectual property rights required to exploit the assets, lists of customers and even some of the staff employed in the part of the business transferred, although no single factor is necessarily decisive. As stated above, however, it does not seem necessary that the part of the business transferred should be an entirely distinct type of business activity. The abovementioned objective of Article 7(l)(b) must be regarded as extending to the dividing up and regrouping of existing businesses on the basis of, for example, separate geographical areas. Nor does the fact that the part of the business transferred shares certain central services with other parts necessarily prevent it from being a ‘part of a business’ for the purposes of Article 7(l)(b). In my view, such an interpretation would clearly be too restrictive, since few branches of large organizations are likely to be entirely independent. Provided that any services essential to the continued exploitation of the assets transferred can be provided by the new company, a degree of reliance upon central services does not prevent the assets from forming part of a business.
The company appealed against those notices to the Commissione Tributaria di Primo Grado [First Instance Tax Tribunal], Voghera. It based its appeal on the definition of ‘farmer’ resulting from Article 2(5) of Council Regulation (EEC) No 797/85 of 12 March 1985 on improving the efficiency of agricultural structures ( 5 ) (hereinafter ‘the Regulation’), which provides as follows:

‘Member States shall, for the purposes of this Regulation, define what is meant by the expression “farmer practising farming as his main occupation”.

This definition shall, in the case of a natural person, include at least the condition that the proportion of income derived from the agricultural holding must be 50% or more of the farmer's total income and that the working time devoted to work unconnected with the holding must be less than half of the farmer's total working time.

On the basis of the criteria referred to in the foregoing subparagraph, the Member States shall define what is meant by this same expression in the case of persons other than natural persons.’
4.

I take precisely the same view as the Commission and the Italian Government took in their written observations to the Court, namely that the last sentence of Article 9 does not relate to all the provisions of Article 9, but solely to paragraph 3 of that article. The position of that sentence within Article 9 is an initial indication that this is the case. As the Commission has rightly pointed out, if the Community legislator had wished to make all the entries referred to in Article 9 optional, it would have set this out in a separate last paragraph. That view is borne out by the fact (although it did occur after the material time) that when in 1986 a paragraph 4 (concerning Spanish red table wine) was added to Article 9, ( 3 ) the sentence in question remained in its original place. It was therefore no longer the last sentence of Article 9, but the last sentence of paragraph 3 of Article 9, which clearly shows that, within the whole set of provisions laid down by Article 9, that sentence was intended to refer solely to paragraph 3.
9.

Having said that, it must be emphasized that the directive contains no provision which has as its object the harmonization of the conditions of competition in particular industries or of the terms of trade in relation to particular products. As regards in particular the conditions of competition, the directive does not — as I have already mentioned — lay down common rules relating to the activity of waste management, but merely defines the principles by which action by the Member States is to be guided. It follows that each Member State may adopt in subiecta materia the provisions which, in its view, are most appropriate for the purpose of attaining the prescribed objectives. Consequently, the rules on waste disposal and recycling may differ — even to a significant degree — from one Member State to another and hence the cost burden on the undertakings affected may also turn out to differ considerably. It therefore seems to me that it can be considered that not only does the directive in question not equalize, but it does not even set out to equalize, the conditions of competition of undertakings specifically dealing with waste management or of the industries which produce waste and, in the final analysis, have to bear the costs of disposal. Similarly, as regards the terms of trade, it certainly cannot be held that the directive introduces common rules intended to implement the free movement of waste within the Community. On the contrary, in accordance with the principle of proximity, which the Court recognized in Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraphs 34 and 35, the directive proceeds from the assumption that waste should essentially be collected, treated and disposed of locally, so as to minimize the movement of waste generally. From that point of view, not only does the directive provide that, in drawing up their management plans, the Member States should aim for self-sufficiency in waste disposal, it also recognizes that they may themselves take the measures necessary to prevent movements of waste which are not in accordance with their management plans. In short, the directive confirms, in accordance with the case-law cited above, that Community environmental law — at least in its present configuration — lays down with regard to waste management a jus singulare which is based on the principles of self-sufficiency and proximity and, in accordance with those principles, aims to achieve, not a liberalization of trade in waste, but, on the contrary, reduced movements of waste within the Community (see the ninth recital in the preamble to the contested directive). It follows that, in terms of their object, the rules laid down by the contested directive fall squarely within the environmental policy measures designed to implement the specific objectives of Article 130r of the Treaty, and not within the actions intended to harmonize conditions of competition and trade on the internal market. Consequently, the Council acted properly in adopting the measure on the basis of Article 130s of the Treaty.
10.

Let us consider the benefits at issue in this case. As has already been said, the SDA and the ICA are noncontributory benefits, the grant of which is thus not based on contributions paid and which, therefore, from that point of view, have no impact on the financial mechanisms set up for the purpose. More generally, I must say that the view that the link between the difference of pensionable ages and the benefits in question is necessary to preserve the financial equilibrium of the entire social security system seems to me to be untenable. And indeed, the statements made by the United Kingdom concerning the important financial consequences of, for example, fixing a common age-limit for men and women (65 years) are undermined by the fact that, under the Social Security (Overlapping Benefits) Regulations 1979, the amount of an invalidity benefit taking the place of income is liable to be reduced by the amount of the old-age pension. It is nevertheless true that, by contrast with old-age pensions, invalidity benefits are not taxable; but the impact of this affects not so much the financial equilibrium of the pension system as the fact that the benefits in question received by women aged between 60 and 65 will be partially taxed, which is not the case for men in the same age bracket. The United Kingdom also asserted that there would be an increased financial burden since people who would not normally be entitled to a pension might be entitled to one of the invalidity benefits at issue in this case. In that regard, two remarks will, I think, suffice. The first is that it should not be forgotten that those people are covered by Directive 79/7. The second is that whilst it is indeed possible that some people who have not paid sufficient contributions for entitlement to a pension may, on the other hand, obtain one of the benefits in question, it is also true, as the Commission stated without being challenged by the United Kingdom, that in such circumstances the people in question will not benefit from income support, which is granted, under the national legislation, to people who have insufficient resources to support themselves.
2.

Referring to the Report of the Judge-Rapporteur for the details, I will confine myself here to pointing out that the contested French legislation ( 2 ) requires that a product file be compiled which, apart from the information which a Member State may lawfully require in accordance with Article 7(3) of the Cosmetics Directive ‘for purposes of prompt and appropriate medical treatment in the event of difficulties’, also must contain an amount of additional information, part of which must already appear on the packaging, container or label of the product in accordance with the cosmetic directive (Article 6(1)), and part of which is not at all required by the Directive. The French Government, whilst it does not deny the Commission's assertion that only the commununication of the full formula of the product falls within the information required under Article 7(3) of the Cosmetics Directive, justifies the requirement of a file containing additional information on the ground of protection of health and also points out that there is at present before the Council a proposal for the amendment of the Directive in question with a view to introducing, at Community level, the requirement of a file similar to that required under the French legislation in question.
1.

In the present case, the Court is once again called upon to interpret Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries. ( 1 ) The regulation in question was adopted, on the basis of Article 14 of Council Regulation (EEC) No 516/77 of 14 March 1977, ( 2 ) in order to remedy the serious disturbances which were affecting the Community market because Morello cherries were being imported from non-member countries and marketed at abnormally low prices. Article 1 of the regulation lays down a minimum price at which Morello cherries may be imported into the Community and provides for a countervailing charge to be levied on those products which do not respect the specified price. Article 2 of that regulation provides that the customs authorities are obliged, for each consignment at the time of completion of customs import formalities, to compare the import price with the corresponding minimum import price (paragraph 1); furthermore, the import price must be declared on the entry for free circulation, and the entry is to be accompanied by all the documents required to verify the price (paragraph 3). The import price for Morello cherries from non-member countries is itself determined, in accordance with Article 3(1) of the regulation, by taking the fob price in the country of origin and the transportation and insurance cost up to the place of entry into the customs territory of the Community. Moreover, Article 3(3) provides that if the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated or if the competent authorities of the Member State consider that the price declared does not reflect the fob price in the country of origin, they are to take the necessary measures to determine that price, in particular by reference to the importer's resale price. The regulation in question, applicable until 9 May 1986 (Article 5), was subsequently extended for one year by Regulation (EEC) No 1257/86. ( 3 )