ddrg/super_eurlex huggingface dataset:
2.

Pursuant to the Regulation, in particular Article 21 thereof, packs should bear no other indications than those provided for in it. Article 18 defines the information which may be shown on small packs. This includes the date of packing but not the date of laying of the eggs. The Court has already given a ruling on another provision of the Regulation, Article 15, which imposes, with regard to the eggs themselves, a prohibition similar to that imposed by Article 21 for small packs, and it emphasized that the wording of the provision leaves no doubt as to the fact that traders are precluded from marking the eggs marketed by them with the date of laying. ( 3 ) On that occasion the Court also made it clear that, having regard in particular to the need to ensure that the information provided to consumers is reliable and therefore easily verifiable by the national authorities and to the fact that, according to the Commission, only large producers are in a position to make the investments necessary for the installation of reliable systems for the marking of eggs, there was nothing to justify the conclusion that, in reconciling the interests of consumers and the sometimes divergent interests of the various categories of producers, the Community institutions had committed any manifest error or exceeded their discretionary powers.
7.

The national court of last instance, the Bundesverwaltungsgericht (Federal Administrative Court) considered that the issue to be determined was whether — and to what extent — replacement of dairy cows prior to the application had an adverse effect on entitlement to the premium. In its view, the Community legislation did not resolve the issue and indeed appeared to be contradictory. On the one hand, Article 1(3) of the Commission implementing regulation appeared to provide for a reduction of the premium in the plaintiff's case. On the other hand, he appeared to be entitled to the full amount of the premium under the second limb of Article 3(1) of the (superior) Council Regulation because at the time of approval of his application he had at least 15 dairy cows, including in-calf heifers, on his holding. Accordingly, the national court referred the following question for a preliminary ruling: ‘Is the first indent of Article 1(3)(b) of Commission Regulation No 1391/78 to be interpreted as meaning that in determining the quantity of milk a reduction may be made in circumstances where Article 3(1) of Council Regulation (EEC) No 1078/77 (as amended by Council Regulation (EEC) No 1041/78), cited in that indent, makes no provision for a reduced premium? If that is so, how is the word “appropriate” in the first indent of Article 1(3)(b) of Regulation (EEC) No 1391/78 to be interpreted?’
Opinion of Mr Advocate General Lenz delivered on 21 November 1990. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Discharge of cadmium. - Case C-70/89.



European Court reports 1990 Page I-04817



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Court is familiar with the Commission' s application in this case, in which it asks the Court to declare that the Italian Republic has failed to fulfil its obligations under Council Directive 83/513/EEC of 26 September 1983, ( 1 ) on limit values and quality objectives for cadmium discharges, by failing to adopt, within the time-limit laid down in Article 6 of that directive, the measures necessary to ensure proper transposition of the directive or by failing to give immediate notice thereof to the Commission .

2 . The seven points which the Commission representative has just raised are set out in the Report for the Hearing . The representative of the Italian Government has not denied the infringement of the Treaty, either at the hearing today or in the written procedure . Consequently, Mr President and Members of the Court, I propose that the Court uphold the Commission' s application and order the Italian Republic to pay the costs .

(*) Original language : German .

( 1 ) OJ 1983 L 291, p . 1 .
Opinion of Mr Advocate General Lenz delivered on 17 April 1991. - Sheptonhurst Ltd v Newham Borough Council. - Reference for a preliminary ruling: High Court of Justice, Queen's Bench Division - United Kingdom. - Interpretation of Articles 30 and 36 of the EEC Treaty - National legislation prohibiting the sale of sex articles from unlicensed sex establishments. - Case C-350/89.



European Court reports 1991 Page I-02387

Pub.RJ Page Pub somm



Opinion of the Advocate-General

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Mr Advocate General Carl Otto Lenz delivered his Opinion on 17 April 1991. (*) He proposed that the Court should rule as follows:

"The questions referred to the Court should be answered in the same way as in Case C-23/89. The ruling to be given is therefore that Article 30 of the Treaty must be construed as meaning that national provisions prohibiting the sale of lawful sex articles from unlicensed shops do not constitute measures having an effect equivalent to quantitative restrictions on imports."

(*) Original language: German.
10.

The fact that Directive 84/631 provides for objections by the Member State of destination suggests that the directive does envisage the possibility of restrictions on the importation of dangerous waste. However, the wording and scheme of the provisions relating to notification and to objections make it plain that any such restrictions must be limited in scope. The text of Article 3, and in particular the reference to the information which must be contained in the consignment note, indicates that the prior notification procedure relates to the intended shipment of a specific consignment of waste. Under Article 4(1), objections must be raised not later than one month after receipt of the notification, that is to say the notification of the intended shipment by means of the consignment note. In my view, it follows that any objections raised by the Member State of destination must relate to the specific consignment which is the object of the notification, and must relate to the information concerning the consignment which is contained in the consignment note. Thus a Member State might, for instance, delay a shipment if it is not satisfied as to the measures taken to ensure safe transport, or that the consignee of the waste has adequate technical capacity for the disposal of the waste in question, matters on which the holder of the waste is required to provide satisfactory information (Article 3(3), third and fourth indents). However, these provisions exclude a global, a priori ban on the influx of waste.
15.

It is true that, by Article 3a(1)(a) of Regulation No 857/84, an applicant for a quota must not, before the end of the non-marketing period, have ceased farming or transferred the whole of his dairy enterprise, that is to say the part of the holding used to produce milk. Furthermore, the new Article 3a of Commission Regulation No 1546/88, laying down detailed rules for the implementation of the quota system, which was inserted by Commission Regulation No 1033/89 of 20 April 1989 (OJ 1989 L 110, p. 27), provides, in its paragraph 1, as follows: ‘The requests [for a quota under Article 3a(1) of Regulation No 857/84] ... shall be made by the producers concerned to the competent authority designated by the Member State ... provided that the producers can prove that they still operate, in whole or in part, the same holdings as those they operated at the time of the approval... of their premium applications.’ There must therefore be some continuity between the holding as it existed before the non-marketing period and the producer's current holding. It does not seem to me however that those provisions are intended to require a producer to resume production on a holding which is identical to the holding he operated at the time of his premium application. The provision which has just been cited is explained as follows in the third recital to Regulation No 1033/89: ‘Whereas it should be stipulated that applications may be submitted solely by producers in a position to operate at least in part the same production units as those they operated when applying for the premium for the non-marketing [of] milk...; whereas, where producers no longer operate the same holdings [i. e. production units — see Article 12(d) of Regulation No 857/84, cited above in paragraph 13], they have thereby demonstrated, according to the logic of the premium scheme, their intention of ceasing milk production and are therefore not affected by the special arrangements laid down ... pursuant to Article 3a of Regulation (EEC) No 857/84 ...’. It may not be entirely clear what is meant, in that recital, by the ‘logic of the premium scheme’. It can be seen however that the purpose of the provision is not to confine production to lands belonging to the original holding, but simply to ensure that the applicant for a quota intends to resume his previous activities, as opposed to embarking upon an entirely distinct venture. The legislator took the view that that purpose would be adequately secured as long as some at least of the original holding was to be used again for milk production.
20.

Thus, in the judgment in Iannelli v Meroni, ( 12 ) the Court held that: ‘Those aspects of aid which contravene specific provisions of the Treaty other than Articles 92 and 93 may be so indissolubly linked to the object of the aid that it is impossible to evaluate them separately so that their effect on the compatibility or incompatibility of the aid viewed as a whole must therefore of necessity be determined in the light of the procedure prescribed in Article 93. Nevertheless the position is different if it is possible when a system of aid is being analysed to separate those conditions or factors which, even though they form part of this system, may be regarded as not being necessary for the attainment of its object or for its proper functioning.’ ( 13 )
44.

Should the Court nevertheless interpret the Commission's letter as meaning that it does in fact contain the agreement (to the provisional award of the contract) or the refusal (to rectify the situation) which are criticized by the applicant, such acts could not in any event be of direct concern to the applicant. ( 25 ) This finding is also in no way affected by the Court's judgment in Piraiki-Patraiki, ( 26 ) which was cited by the applicant. At issue in that case was whether or not authorization by the Commission of protective measures under the second subparagraph of Article 130(1) of the Act of Accession of the Hellenic Republic was a matter of direct concern to the applicants, Greek manufacturers of cotton yarn. That authorization allowed France to impose quota restrictions for a specified period on imports of cotton yarn from Greece. The Court held that the Commission's decision could not have affected the applicants in the absence of implementing measures adopted at national level, but that nevertheless, in view of the conduct of the French authorities both before and at the time of their request, there was no more than a merely theoretical possibility that they would not make use of the authorization granted them by the Commission's decision. The Court accordingly held that the applicants were directly affected. The crucial distinction between that case and the present one lies in the fact that the Commission's authorization in Piraiki-Patraiki related to the protective measure itself, whereas here the measures taken by the Commission's representatives concern only the financing by the European Development Fund and the decisions touching on the progress and result of the actual tendering procedure are taken independently at ICDCS level.
17.

Conversely, the Court reserved the exemption from the tachograph requirement for ‘specialized vehicles’ for ‘door-to-door selling’ ( 16 ) to ‘vehicles whose construction, fitments or other permanent characteristics guarantee that they are used primarily for one of those operations’. ( 17 ) In the case of such vehicles the prescribed driving and rest periods are likely to be complied with since they are fitted out in such a way that their use for anything other than a selling activity involving frequent stops is precluded. Similarly, the Court has held that in order to qualify for exemption from the tachograph requirement as a ‘specialized breakdown vehicle’, ( 18 ) the vehicle must be one whose fitments or other characteristics are such that in the main it can only be used for removing vehicles that have recently been involved in an accident and not for merely transporting other vehicles. ( 19 ) The Court has thus minimized the extent to which the objectives of the Community rules on tachographs may be undermined by the possibilities of derogating therefrom.
29.

In its second question the national court wishes to know, in the alternative, whether protection of the indications of geographical provenance in question, should it not already be justified from the point of view of Article 30, may nevertheless be justified under Article 36. As has been seen, protection of indications of geographical provenance is already justified from the point of view of Article 30 so that there is no need to have recourse to Article 36. That protection is necessary in the interests of producers and consumers in the common market. However, it is also sufficiently assured in the context of Article 30 because it is accessible to every producer operating in the place concerned without the user having to satisfy further conditions. On the other hand, it seems to me that stricter requirements should apply to industrial and commercial property, as, for example, in the case of patents, trade marks or copyright. The difference seems to me to be that in those cases the holder has a power of disposal, whereas no such power exists in the case of indications of geographical provenance. These are available to everyone who satisfies the conditions, and there is no need for authorization. Nor can they be assigned to anyone who does not fulfil the conditions.
8.

In my opinion the Commission's argument must be accepted in that the national authorities' opinion as to whether the traveller satisfies the conditions for temporary tax exempt importation of personal effects must be fair so as not to lose sight of the objective of the system. However, I must agree with the Greek Government that the Commission has not shown that the Greek customs authorities misjudged the intentions of the tourist in question in the case in point. The Commission argued on the basis of some general comments concerning the unlikelihood of the tourist in question intending to avoid the payment of customs and duties. That is not a sufficient basis for stating that the Greek customs authorities' assessment was incorrect. ( 5 ) Such a finding would require a far stronger evidential basis than that which the Commission has been able to adduce. Certain evidence which could be important in the assessment of the subjective state of the person in question is disputed and other relevant information is completely missing. Consideration might be given to the question of whether it is appropriate at all to accept an action under Article 169 of the Treaty where a decision on whether the Treaty has been infringed requires a prior assessment of the evidence relating to a person's subjective state. I do not, however, think that the present case in a suitable basis for deciding that question of principle. It need merely be stated that the Commission has not discharged its burden of proof as it is required to do in cases where it alleges infringement of the Treaty.
11.

The Netherlands admits that in relation to practical training, and more particularly Articles 4 and 8 of the directive, the national law in force is contrary to the Community provisions. It alleges primarily that the failure complained of is confined to that sole issue and should not embrace, as the Commission claims, the whole of the directive. It is not denied that the practical training, which is an essential item of the system proposed, based on examination of professional competence covering not only theoretical knowledge but also practical training for at least three years (Article 8 of the directive), is not yet formally part of the instruction at issue, as organized in the Netherlands, although in fact it is often given. The reason put forward to excuse the delay, but not affecting the question of whether or not there is a failure to fulfil obligations, ( 3 ) is primarily the Government's intention, on implementation of the directive, to amend the legislative provisions relating to the profession of accountant (a draft law has been prepared and is in the process of adoption).
In its defence the Irish Government concedes that it has still not adopted the legislation needed to implement the directive. It submits, however, that the directive is observed in practice.

The Court has consistently held that ‘mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty’. ( 2 )
10.

The Commission puts forward yet another argument to show that Article 3(7) of Regulation No 3677/86 does in fact fall within the framework of Regulation No 1999/85. It considers that the economic conditions on which Articles 5 and 6 of Regulation No 1999/85 makes issue of inward processing authorization subject can be verified only on the principals premises in the case of a job processing contract. Moreover, it considers that the principal is best placed to offer ‘every guarantee which the customs authority considers necessary’ ( 12 ) and to ensure that ‘all compensating products are to be exported’. ( 13 ) It is argued that it is therefore more than logical that the authorization in question must be applied for, not by the operator, but by his principal. This article, too, does not seem convincing to me. Verification of compliance with the — economic and other — conditions may be carried out irrespective of the person who provides the information. Where the processing operation is carried out on behalf of a third party, the information may come — depending on its nature — as much from the principal as from the operator. This does not prevent its being notified to the customs authorities by only one person in this case too. The operator seems to me to be the best qualified in this regard: as the national court observes, it is the customs authority of the Member State in which the processing operations are carried out which issues the authorization ( 14 ) and it is there that compliance with the authorization issued can best be checked. The Commission also claims that an alternative version of Article 3(2) of Regulation No 1999/85 circulated during the preparatory work according to which inward processing authorization was to be issued ‘in particular cases’ at the principal's request. It maintains that that version was not embodied in the final text because it was considered unnecessary. In my view, the Commission has not put forward sufficient data to support this argument. In addition, it has not been shown that a job processing contract between two persons established in the Community should be regarded as being a ‘particular case’ within the meaning of the aforementioned alternative version.
21.

A ‘communication’ intended to have legal effects and capable in the abstract of having such effects inasmuch as it emanates from an institution competent to adopt binding acts in the sector in question is bound to give rise to confusion and uncertainties amongst its addressees, be they Member States or individuals, as to whether the conduct contemplated by it is obligatory. Manifestly, this is detrimental, not only to individuals, but also to the administration. Then again, in the instant case the problem of certainty is made even more acute by the fact that in the aid sector the Commission's constant practice has been to adopt nonbinding communications, as the Court itself recognized in the judgment in Deufil, ( 14 ) which means that, when faced with an act entitled a ‘communication’, individuals would have to decide whether it was a ‘typical’ communication and hence nonbinding or an act which, although appearing from its name to be nonbinding, mandatorily imposed particular conduct. In other words, individuals are placed in a position of uncertainty not so much and not only with regard to the legal basis but with regard to the more important aspect, that is to say, whether or not the conduct contemplated by the act for them to take is or is not compulsory. In this connection, it is worth recalling that, as the Court has consistently held, ‘Community legislation must be certain and its application foreseeable by those subject to it’, ( 15 ) which is in compliance with the principle of legal certainty forming part of the Community legal order. ( 16 ) It seems to me that that statement by the Court applies, with even more reason, in a case such as the present one in which it is not a single provision which gives rise to ambiguity but the whole act, in view of the fact that it is, on the face of it, nonbinding, whereas it is binding and is intended to be so. The ambiguity of the act in question also emerges from the stance adopted by the Commission itself in the course of the proceedings. It argued, on the one hand, that the act did not impose new obligations and that hence it was not bound to adopt a directive and, on the other, that the obligations imposed by the act had to be complied with in any event or infringement proceedings would be brought.
103.

At the hearing the Commission's representative did not call in question such an interpretation, which the Court expressed in the following words in the Ooms case: ‘It is clear from the aforementioned provisions that the ordinary reimbursements provided for in Article 72(1) are based on objective circumstances and in particular on the application of upper limits and rates of reimbursement fixed by the Staff Regulations and identical for all Community officials, whilst special reimbursement is based on circumstances which are peculiar to the official's own situation and which are related to the fact, according to the circumstances provided for in Article 8 of the Rules on Sickness Insurance, that the portion of expenses not reimbursed places a “heavy financial burden” on him’. ( 26 )