ddrg/super_eurlex huggingface dataset:
41.

The Commission seems to have based the formulation of its proposal for the Court's answer to this question on a more far reaching application of the rule of interpretation which previously found some support in the Court's judgment in Marleasing and particularly in the Danish version, where the words ‘so far as possible’ are not present. ( 8 ) The Commission proposes in fact that it should be stated in connection with the rule of interpretation that the national courts must have ‘regard to the principle that when the provisions of the directive have not been implemented in the national legal system, the interpretation cannot have the effect of determining or aggravating the criminal liability of the person against whom proceedings are taken’. That addition would in my view be necessary if the rule of interpretation really implied that the national legal rule should, by means of ‘interpretation’, be brought into line with the directive which was not implemented at the appropriate time even if the national rule raised no doubts of interpretation. Such an ‘interpretation’contra legem would indeed completely alter the content of the penal provision and the addition proposed by the Commission would then be necessary for complying with the principles of nullum crimen sine lege and nulla poena sine lege.
Opinion of Mr Advocate General Lenz delivered on 9 January 1997. - Anestis Kapasakalis, Dimitris Skiathitis and Antonis Kougiagkas v Greek State. - Reference for a preliminary ruling: Dioikitiko Protodikeio Athinon - Greece. - Directive 89/48/EEC - General system for the recognition of higher-education diplomas - Scope - Situation purely internal to a Member State. - Joined cases C-225/95, C-226/95 and C-227/95.



European Court reports 1998 Page I-04239



Opinion of the Advocate-General

A - Introduction

1 In the present cases the plaintiffs, all Greek nationals residing in Greece, seek compensation of DR 10 000 000 each from the Greek State for non-material damage. They base their claims inter alia on the Greek State's failure to transpose Directive 89/48/EEC properly. (1) The Diikitiko Protodikio (Administrative Court of First Instance), Athens, in which proceedings were brought, has referred to the Court of Justice two questions on the content of that directive and one on the causal link between the infringement of the obligation of transposition and the damage which the applicants claim to have suffered. (2)

B - Opinion

2 It follows from the findings of the national court that the plaintiffs have neither worked nor studied nor obtained a diploma or professional qualification in a Member State of the Community other than their State of origin.

3 As can be seen from the said directive, it applies only to nationals of a Member State who wish to pursue a regulated profession in another Member State in a self-employed capacity or as employed persons. (3) It further appears from the tenth recital in the preamble that the directive is not intended to amend the rules applicable to any person pursuing a profession in the territory of a Member State. (4)

4 Consequently, the proceedings in which the reference for a preliminary ruling has been made do not fall within the scope of Directive 89/48. There is therefore no need for me to consider the questions further.

C - Conclusion

5 I therefore propose the following answer to the national court's questions:

Council Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, adopted on the basis of Articles 49, 57(1) and 66 of the EC Treaty, is not applicable to situations which have no connection with Community law.

(1) - Judgment of 25 March 1995 in Case C-365/93 Commission v Greece [1995] ECR I-499. The Commission has since initiated the procedure preliminary to a further action against the Hellenic Republic for failure to fulfil an obligation under the Treaty, on the ground that Greece has not taken the necessary measures to comply with the Court's judgment.

(2) - See OJ C 229 of 2 September 1995, p. 13.

(3) - First paragraph of Article 2 of the directive.

(4) - Tenth recital in the preamble to the directive.
Opinion of Mr Advocate General Lenz delivered on 18 February 1997. - Commission of the European Communities v Kingdom of Belgium. - Failure by a Member State to fulfil its obligations - Failure to transpose Directive 93/42/EEC - Medical devices. - Case C-294/96.



European Court reports 1997 Page I-01781



Opinion of the Advocate-General

1 In these Treaty infringement proceedings the Commission claims that the Kingdom of Belgium has failed to adopt the laws, regulations and administrative provisions needed to transpose Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (1) into national law.

2 Under Article 22(1) of the directive, the Member States were required to adopt the laws, regulations and administrative provisions needed to comply with the directive by 1 July 1994 and to inform the Commission thereof forthwith.

3 The Kingdom of Belgium does not dispute that the directive has not been transposed into national law within the time-limit set. It merely states that the requisite legislation is being prepared.

4 I accordingly propose that the Court should declare that, by failing to adopt, within the prescribed time-limit, the measures needed to comply with Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty. I also propose that the Kingdom of Belgium should be ordered to pay the costs.

(1) - OJ 1993 L 169, p. 1.
Opinion of Mr Advocate General Jacobs delivered on 25 September 1997. - Commission of the European Communities v Federal Republic of Germany. - Failure to fulfil obligations - Non-implementation of Directives 91/157/EEC and 93/86/EEC. - Case C-236/96.



European Court reports 1997 Page I-06397



Opinion of the Advocate-General

1 In these proceedings the Commission seeks a declaration, under Article 169 of the EC Treaty, that the Federal Republic of Germany has failed to comply with its obligations under the Treaty by not adopting within the prescribed period the measures necessary to implement Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (1) and Commission Directive 93/86/EEC of 4 October 1993 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances. (2)

2 Article 11 of Council Directive 91/157 provides that:

`1. Member States shall take the measures necessary to comply with this Directive before 18 September 1992. They shall forthwith inform the Commission thereof.

2. Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.'

3 Article 7 of Commission Directive 93/86 provides that:

`Member States shall take the measures necessary to comply with this Directive no later than 31 December 1993. They shall immediately inform the Commission thereof.

...'

4 The Federal Republic of Germany has not disputed its failure to implement the Directives and states in its defence that it has informed the Commission on a number of occasions of the reasons for the delay. Germany refers to voluntary undertakings by the manufacturers and distributors of batteries, but it is clear that such undertakings cannot be a substitute for the proper implementation of the Directives.

5 It follows that the Commission is entitled to the declarations which it seeks.

Conclusion

6 Accordingly I am of the opinion that the Court should:

(1) declare that, by failing to adopt within the prescribed period the provisions necessary to implement:

- Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances, and

- Commission Directive 93/86/EEC of 4 October 1993 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances,

the Federal Republic of Germany has failed to fulfil its obligations under the Treaty;

(2) order the Federal Republic of Germany to pay the costs of these proceedings.

(1) - OJ 1991 L 78, p. 38.

(2) - OJ 1993 L 264, p. 51.
24.

It also follows from a systematic interpretation of Article 28 of Regulation No 3677/86 that the maximum periods laid down therein are non-extendable. That rule is a special provision which takes priority over the general rule in Article 27, which allows the periods for completion of the inward processing arrangements to be extended. Furthermore, the third recital of the preamble to Regulation No 2281/88, which inserts a second paragraph into Article 28 of Regulation No 3677/86 restricting the period for re-exportation of milk and milk products to four months, states that ‘... a nonrenewable time-limit should also be set for dealing with the compensating products in one of the approved ways ...’. Regardless of whether the amendment inserted in Regulation No 2281/88 is applicable to the facts of the present case, a question which must be resolved by the national court and which does not affect the ruling requested from the Court of Justice, that reference to the nonrenewable nature of the maximum time-limit for re-exportation is a valid factor for consideration when interpreting Article 28 of Regulation No 3677/86 as a whole. The Community rules which have subsequently regulated the inward processing arrangements have maintained the same distinction between a general period for completion of the inward processing arrangements fixed by the customs authority and capable of being extended, which applies to goods in general covered by the inward processing arrangements, and special nonrenewable periods for completion of such arrangements which apply to agricultural products in respect of which export refunds are payable. ( 9 )
6.

The Invim was introduced by Presidential Decree No 643 of 26 October 1972. ( 7 ) It is charged on ‘the increase in the value of immovable property situated on Italian territory’ (Article 1) and calculated either when immovable property ‘is transferred for consideration’ (Article 2 of Presidential Decree No 643/1972, cited above) or, in the case of immovable property owned by companies, ‘at the end of each 10-year period elapsing from the date of purchase’ (Article 3). Under the provisions of the said Law, immovable property contributed to ‘companies or firms of any kind whatsoever’ is regarded as being ‘transferred for consideration’ (Article 2(2)). The basis of assessment for the Invim is the difference between the value of the immovable property at the time of transfer of ownership and its value at the time of purchase, plus any expenditure which has increased the value. For the purposes of calculating the difference in value of immovable property in the second case where Invim is charged (at the end of each 10-year period), the difference in the value of the immovable property is calculated by taking its value at the end of the 10-year period as the final value, and its value at the time of purchase, or its value as calculated for the purposes of the previous charge, as the initial value (Article 6). The rate of the tax is determined according to the scale of the appreciation in value calculated on the basis of the criteria set out in Article 15 and ranges between 3% and 30%, depending on the degree of appreciation (falling between a minimum of 20% and a maximum of more than 200% of the reference value). The Invim was abolished with effect from 1 January 1993 by Article 17 of Legislative Decree No 504 of 30 December 1992. ( 8 ) However, according to that Article, ‘The tax shall he payable at the maximum rates — the product of the tax shall be wholly incorporated in the State budget — where the conditions under which the tax is payable are met for the period from 1 January 1993 to 1 January 2003 on the basis of the appreciation in value by 31 December 1992’ (paragraph 7). According to the order for reference, the Invim was charged to the members of the company who had contributed the immovable property.
44.

It may also be observed that, in weighing the competing interests in the balance, which is what is involved when assessing compliance with the principle of the effectiveness of Community law, it would appear, to say the least, unfair to leave the bona fide recipient alone with the burden of something which is akin to strict liability, even though, in accordance with the established system, he has transferred to his suppliers the subsidies he received, without benefiting from them directly and without having been able to check the origin of the goods in question, which determines whether the subsidies were properly granted. In this connection, it must be borne in mind that, should a certain malfunctioning become apparent in the implementation of the system for the grant of Community aid, the Community legislature or the competent national authorities are not untouched by it. The Court has, moreover, addressed two warnings to them in the Deutsche Milchkontor judgment. Accordingly, it would be difficult to understand why the Community authorities should hesitate to allow a reference to national principles when, ‘if disparities in the legislation of Member States proved to be such as to ... impair the functioning of the common market, it would be for the competent Community institutions to adopt the provisions needed to remedy such disparities.’ ( 44 ) Likewise it is first and foremost for the national authorities which are responsible for ensuring, by means of appropriate checks, that the product in respect of which the aid is granted conforms to the Community legislation, so as to ensure that Community aid is not paid for products which do not qualify for it, to decide on the controls necessary for that purpose. It cannot be ruled out that a failure to discharge the obligation of supervision may be taken into account. The Court gave a forewarning of this when it observed that: ‘As regards the consequences of a failure to exercise such supervision for the recovery of sums unduly paid and in particular the question whether the recipients of the aids may rely on the failure as a defence to an action for recovery, ... those consequences are determined by national law ... It is therefore ... the task of the national courts to determine them on the basis of the relevant national law.’ ( 45 )
Opinion of Mr Advocate General Lenz delivered on 12 June 1997. - Commission of the European Communities v Italian Republic. - Failure to fulfil obligations - Directive 93/36/EEC - Failure to transpose within the prescribed period. - Case C-43/97.



European Court reports 1997 Page I-04671



Opinion of the Advocate-General

1 In the present Treaty infringement proceedings, the Commission claims that the Italian Republic has failed to fulfil its obligations under Article 34(1) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, (1) in that it has failed to adopt within the prescribed period or, as the case may be, to give notification of the laws, regulations and administrative provisions necessary to comply with that directive.

2 Article 34(1) of Directive 93/36 requires Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive before 14 June 1994 and immediately to inform the Commission thereof.

3 The defendant does not deny the failure of which the Commission complains. It submits, however, that such failure is of minor importance, since the basic Community provisions concerning procedures for the award of public supply contracts, laid down by Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (2) and by Directives 80/767/EEC of 22 July 1980 (3) and 88/295/EEC of 22 March 1988 (4) amending it, have been transposed into internal law. (5) That, however, does not invalidate the Commission's complaint that Directive 93/36 has not been transposed.

4 The defendant further submits that under a draft law currently being debated by the Italian Parliament the Government will be empowered to transpose Directive 93/36 into internal law.

5 As the defendant does not thereby contest that the directive in issue has not been transposed into internal law within the prescribed period, the Court does not have to consider the Commission's complaint concerning failure to give notification of the measures taken to transpose the directive.

6 I therefore propose that the Court should declare that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, the Italian Republic has failed to fulfil its obligations under Article 34(1) of that directive. I further propose that the Italian Republic should be ordered to pay the costs of the case.

(1) - OJ 1993 L 199, p. 1.

(2) - OJ 1977 L 13, p. 1.

(3) - OJ 1980 L 215, p. 1.

(4) - OJ 1988 L 127, p. 1.

(5) - In order to understand this submission, it must be pointed out that the aim of Directive 93/36 is to recast Directive 77/62 and its amending directives (see the first recital in the preamble to Directive 93/36). Article 33 of Directive 93/36 consequently provides that Directive 77/62 is repealed.
Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 17 December 1998. - Commission of the European Communities v Kingdom of Belgium. - Failure by a Member State to fulfil its obligations - Directive 94/47/EC - Non-transposition. - Case C-319/98.



European Court reports 1999 Page I-01201



Opinion of the Advocate-General

1 In this action under Article 169 of the EC Treaty, the Commission asks the Court for a declaration that, by failing to adopt or communicate to it, within the prescribed period, the laws, regulations and administrative measures necessary to comply with Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, (1) the Kingdom of Belgium has failed to fulfil its obligations under the Treaty.

2 Article 12 of Directive 94/47/EC (hereinafter `the Directive') provides that the Member States are to adapt their national laws to the provisions of the Directive by no later than 30 April 1997 and that they are to immediately inform the Commission thereof.

3 During the pre-litigation procedure, the Commission sent a letter before action to the Belgian Government on 9 September 1997. Having received no reply to that communication, the Commission, on 19 February 1998, sent a reasoned opinion to the Belgian Government, calling on it to adopt the necessary measures to implement the Directive.

4 In answer to the reasoned opinion, the Belgian Government informed the Commission, by letter of 20 April 1998, that, albeit somewhat belatedly, the corresponding draft law had been adopted by the Council of Ministers and that, once it had become law, it would be sent to the Commission.

5 Given that, by 17 August 1998, there was no evidence that the Directive had been transposed, the Commission brought the present action before the Court of Justice.

6 In its defence, the Belgian Government stated that the draft law implementing the Directive had been presented to the House of Representatives on 18 August 1998 and that it would be adopted as soon as possible.

7 Accordingly, since the Kingdom of Belgium clearly failed to fulfil its obligations, it is appropriate to uphold the Commission's application and, under Article 69(2) of the Rules of Procedure, to order the defendant to pay the costs.

Conclusion

8 In view of the foregoing, I propose that the Court should:

(1) declare that, by failing to adopt or communicate to the Commission, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a time-share basis, the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty.

(2) order the defendant to pay the costs.

(1) - OJ 1994 L 280, p. 83.
((Approximation of legislation – Labelling of dangerous substances – Directive 97/69/EC – Derogating national measures – Article 95(5) EC – Conditions of application))
((Appeal – Competition – Article 65(1) of the ECSC Treaty – Normal competition – Information exchange system – Adoption of a decision by the Commission – Discrepancies between the recitals and operative part of the decision – Duration of the proceedings))
((Freedom to provide services – Articles 49 EC and 50 EC – Sickness insurance – Social security system providing benefits in kind by means of agreements with health professionals and centres – Medical treatment in another Member State – Prior authorisation – Criteria – Justification))
((Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain)) (Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha – Interpretation of Article 1 of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of insolvency of their employer – Employees' claims arising from contracts of employment or employment relationships – Whether or nor a claim arising from a settlement reached in a compulsory pre-litigation procedure concerning a dismissal falls within the scope of that term – Direct application of the Directive in the event of legislation which by definition precludes this situation))
((State Aid – Transport – Commission notice on the de minimis rule for State aid – Relevant market – Transport services on own account – Transport services for hire or reward – Community guidelines on State aid for environmental protection))
((EAGGF – Expenditure excluded from Community financing – Compensatory aid for bananas – Annulment of Decision 2000/449/EC))
((Sugar – Specific measures for the Azores and Madeira – Poseima programme – Decision 91/315/EEC – Regulation (EEC) No 1600/92))
((Failure of a Member State to fulfil its obligations – Environment – Directive 91/676/EEC – Pollution – Protection of waters – Nitrates))