ddrg/super_eurlex huggingface dataset:
2.

By Regulation (EEC) No 1760/87 of 15 June 1987 ( 1 ) the Council laid down the obligation for the Member States to introduce an aid scheme to encourage inter alia the extensification of production in certain sectors where there are surpluses, including the beef and veal sector. To that end, Article la and Article lb were inserted in Council Regulation (EEC) No 797/85 of 12 March 1985. ( 2 ) By Regulation (EEC) No 1094/88 of 25 April 1988 ( 3 ) the Council made adjustments to the aid scheme laid down in Regulation No 1760/87 without altering it in any essential respect (see the eleventh recital in the preamble to Regulation No 1094/88). By virtue of Regulation No 1094/88 the provisions regarding the extensification of production were grouped in a new Article lb of Regulation No 797/85 which constitutes the only article in Title 02 on ‘Extensification of production’. ( 4 ) Pursuant to Article 1b(1) of Regulation No 797/85 the Member States are to introduce an aid scheme to promote extensification of production for surplus products, which are defined as products for which there are consistently, at Community level, no normal unsubsidized outlets. Article 1b(2) of Regulation No 797/85 defines extensification as ‘a reduction of at least 20%, for a period of at least five years, in the output of the product concerned without any increase in other surplus production capacity’. Pursuant to Article 1b(3) of Regulation 797/85 the Member States are to determine: ‘(a) the conditions for granting the aid, including those for reducing output of the various products. In the case of beef and veal, it may be stipulated that, in order to achieve the reduction in output referred to in paragraph 2, the number of livestock units must be reduced by at least 20% ...; (b) the amount of the aid, on the basis of the undertaking given by the beneficiary and the loss of income incurred, and the way in which it is to be paid; (c) the reference period for the product concerned, for the purposes of calculating the reduction; (d) the undertaking to be given by the beneficiary for the purposes of, in particular, verifying that production has in fact been reduced.’ Finally, Article 1b(6) of Regulation No 797/85 gives the Commission the power to lay down implementing provisions.
Opinion of Mr Advocate General Tesauro delivered on 8 December 1992. - Commission of the European Communities v French Republic. - Failure to fulfil obligations - Failure to transpose a directive. - Case C-293/91.



European Court reports 1993 Page I-00001



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

By application lodged at the Court Registry on 21 November 1991, the Commission claims that the French Republic has not adopted the measures necessary to comply with Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. (1)

The French Government acknowledges its failure to fulfil obligations, but states that a draft law to secure the implementation of the directive concerned is currently under review by the Assemblée Nationale (French Parliament).

I therefore propose that the Court uphold the application and order the defendant to bear the costs.

(*) Original language: Italian.

(1) - OJ 1985 L 210, p. 29.
13.

Although the judgment in Poly sar is irrelevant in the present case for the purpose of determining status as a taxable person, it is of significance for that of answering the question whether dividends must be taken into account when calculating the deductible proportion. Two points of view were defended before the Court in that respect: Sofitam and the Commission are of the opinion that dividends should not be taken into account when calculating the deductible proportion; on the other hand, the French, Greek and — although with certain reservations — the Netherlands Government consider that it should be taken into consideration. In accordance with the position it took in the main proceedings (see point 4, above), Sofitam submits that the turnover to be taken into account in the denominator of the fraction laid down by Article 19(1) of the Sixth VAT Directive does not include dividends received by a taxable person. Referring to paragraph 13 of the judgment in Poly sar, cited above, it contends that the receipt of dividends does not constitute an economic activity within the meaning of the Community VAT rules and that consequently is completely outside the scope of those rules. When it refers to ‘turnover’ attributable to transactions in respect of which VAT is or is not deductible, the Sixth VAT Directive is referring to the total amount of the consideration received by the taxable person on account of the economic activities carried out, that is to say, the total price of the goods and services supplied by him, irrespective of whether or not there is a right to deduct. The Commission also takes the view that dividends — as well as other income of an undertaking and gains resulting from the sale of shares — do not constitute consideration for an activity subject to VAT, and still less for an activity exempt from VAT. According to the Commission, since it concerns remuneration for a capital investment, that transaction falls outside the scope of VAT. It also concludes that the income from such financial transactions are not ‘turnover’ of the recipient undertaking and, consequently, must not be included in the fraction laid down in Article 19(1).
OPINION OF ADVOCATE GENERAL

GULMANN

delivered on 16 February 1993 ( *1 )

Mr President,

Members of the Court,

1. In this case the Commission seeks a declaration that, by failing to adopt the measures necessary to comply with the judgment of the Court of Justice of 17 June 1987 in Case 1/86 Commission v Belgium, ( 1 ) the Kingdom of Belgium has failed to fulfil its obligations under Article 171 of the EEC Treaty. In that judgment the Court held that Belgium had failed to comply within the prescribed period with Council Directive 80/68 of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances. ( 2 )

2. In support of its claims the Commission sets out several complaints in its application. Belgium has contested only one of them and it was subsequently withdrawn by the Commission. ( 3 )

3. As regards the others, Belgium explained in its defence that the rules required for a correct implementation of Directive 80/68 had already been adopted or submitted as a proposal. In its rejoinder Belgium indicated that some of the proposals had subsequently been adopted. In those circumstances the Commission, in response to a question from the Court, withdrew several of the complaints. ( 4 )

4. During the hearing the Commission stated that, having obtained additional information from the Belgium Government, it could also withdraw certain elements of its final complaint. ( 5 ) The Commission therefore maintains only one complaint, namely that the Belgian Decree of 30 April 1990 does not implement the Directive correctly in so far as it does not refer to the substances in list II of the Directive, whereas it is clear from Article 5 that the Member States must take positive measures with regard to the discharge of those substances. ( 6 ) The Commission furthermore maintains its application for costs.

5. The Belgian Government stated at the hearing that it did not contest the aforesaid complaint or the Commission's application for costs.

Conclusion

6. For those reasons, I propose that the Court allow the Commission's application and order the Kingdom of Belgium to pay the costs.

( *1 ) Original language: Danish.

( 1 ) [1987] ECR 2797

( 2 ) OJ 1980 L 20, p. 43.

( 3 ) See paragraphs 6 and 7 of the Commission's reply to the Court's question.

( 4 ) See paragraph 3 to 5 and 8 to 9 of the Commission's reply to the Court's question.

( 5 ) See section B of the Commission's reply to the Court's question.

( 6 ) See paragraph 24 of the application.
4.

The Greek Government's argument cannot be accepted. First of all, as the example given in the Commission's pleadings demonstrates, it is not always the case that reference to the 12 months preceding importation is more advantageous to the persons concerned. On the contrary, it is clear that, depending on the period in which the residence in question occurred (with reference to the time of temporary importation) and on whether or not it was continuous, the fact that the 12-month period preceding importation is taken into account rather than the previous calendar year may prove disadvantageous or favourable for them. That finding is sufficient in itself to lead to the conclusion that in the present case Article 9(1) of the directive cannot be relied on to justify adoption of a criterion other than that laid down in Article 7(1) of the same directive. Moreover, for the purposes of Directive 83/182/EEC, as the Court has stated, once the place of normal residence is established ‘it is possible to determine into which Member State the vehicle concerned has been temporarily imported, and which Member State is entitled to apply its tax legislation to the vehicle’. ( 4 ) If that is its aim, the concept of normal residence plainly cannot be other than a (harmonized) Community concept and the place of normal residence must be determined in the same way in all the Member States, for obvious reasons of certainty and uniformity and, in particular, because if the Member States were allowed to define normal residence in different ways, confusion would arise as to which State was entitled to tax the vehicle in question. There would be a risk that two Member States would both consider the same person to be resident for tax purpose or even (attractive prospect) that a vehicle would escape tax in any State.
10.

Also by way of preliminary, I wish to consider the submission by AG de 1824 in its written observations to the Court to the effect that the Court could refrain from answering the question because a reply would not assist a decision in the main actions. The dispute in those actions concerns the interpretation of the contested guarantees, which raises a question of purely Belgian civil law the answer to which cannot be affected by whether the Royal Decree of 1978, as amended in 1987, is compatible with Directive 74/561 or not. As the Commission rightly observed at the hearing, this reasoning is wrong in general and in particular in the light of the following paragraph of the Court's judgment in the Marleasing case: ( 11 ) ‘In order to reply to that question, it should be observed that, as the Court pointed out in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen, the Member States obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.’ Therefore the possibility cannot be ruled out that, when the national court interprets the contested guarantees in the light of the relevant Belgian legislation, it will have to do so in accordance with Directive 74/561. Therefore the correct interpretation of the Directive may be of assistance to the national court.
18.

Furthermore, the Belgian and Italian benefits are not ‘of the same kind’. While the Belgian benefit in question is a sickness benefit calculated in accordance with Article 23 of Regulation No 1408/71, it is not disputed that the Italian benefit is an invalidity benefit calculated in accordance with Article 46(3) of the regulation. That provision is part of Chapter 3 of Title III of the regulation, concerning old age and death (pensions), but is applicable by analogy with the invalidity benefits granted in accordance with the Italian legislation. Chapter 2 of Title III of Regulation No 1408/71, concerning invalidity, distinguishes between two types of legislation: that under which the amount of invalidity benefits is independent of the duration of periods of insurance (Section 1, Articles 37 to 39) and that under which the amount of invalidity benefit depends on that duration (Section 2, Article 40). The Italian legislation is of the second type, and this is confirmed by Annex IV of the regulation. Article 40(1) of the regulation provides that benefits granted under such legislation are to be calculated in accordance with the provisions of Chapter 3 of Title III of the regulation, concerning old age and death. To summarize, if the two benefits received by Mr Del Grosso are compared it will be noted that they are not of the same kind. One is a cash benefit in respect of sickness, calculated in accordance with Article 23 of Regulation No 1408/71, while the other is an invalidity benefit, calculated in accordance with Article 46.
12.

It may at first seem doubtful how much weight can be attached in cases such as this to the statements in the Somafer judgment on the concept of ‘operations’. In the first place the statement in paragraph 13 contains an indication of what is covered by the concept of ‘operations’, but there is no indication of what is not covered by the concept — see for example the expressions ‘this concept of operations comprises on the one hand...’ and ‘Further it also comprises ...’. The Court had no occasion to decide the question of whether to attribute a geographical limitation to Article 5(5). The dispute before the court of reference concerned a case which would also be covered by the provision even if such a limitation had applied and according to the report of the parties' observations the question of a geographical limitation was not even discussed. Next it must be stressed that the Court's statement that the concept of operations also comprises actions ‘relating to undertakings which have been entered into at the above-mentioned place of business in the name of the parent body and which must be performed in the Contracting State where the place of business is established’ is in the nature of an obiter dictum. The case before the court of reference concerned not this type of dispute but on the contrary a dispute ‘concerning non-contractual obligations arising from the activities in which the branch, agency or other establishment within the above-defined meaning, has engaged at the place in which it is established on behalf of the parent body’. I would refer to paragraph 2 of the grounds of judgment, according to which the action concerned the question whether the German court had jurisdiction: ‘... to try an action brought by a German undertaking against a French undertaking, the registered office of which is in French territory but which has an office or place of contact in the Federal Republic of Germany described on its note-paper as “Vertretung für Deutschland”, for the recovery of the expenses incurred by the German undertaking to protect gas mains belonging to it from any damage which might be caused by demolition work which the French undertaling was carrying out in the vicinity on behalf of the Saarland’. The idea therefore suggests itself that in making its observation the Court was not deciding the question of the application of Article 5(5) to a case such as this.
5.

It should be observed in limine that serious doubts may be had as to the relevance of some of the national courts' questions. As emerges from the documents in the case, in particular from the orders for reference themselves, and as the applicant in the main proceedings and the Greek Government acknowledged at the hearing, the disputes which gave rise to these proceedings are concerned exclusively with the duty imposed when goods enter the Dodecanese, whether genuine imports from other Member States are involved or goods originating elsewhere in Greece. Consequently, it cannot be seen in what way answering their questions concerning the duty imposed when goods are exported may be of use to the national courts in deciding the cases before them. In that connection, I would point out that, on the basis of Article 177 and according to that which the Court has consistently held, ( 3 ) the procedure provided for in Article 177 of the Treaty is an instrument for cooperation between the Court of Justice and the national courts, whereby the Court of Justice provides the national courts with the criteria for the interpretation of Community law which they need in order to dispose of the disputes which they are called upon to resolve. In the context of that cooperation, the national court, which is alone in having a direct knowledge of the facts of the case, is in the best position to appreciate the necessity for a preliminary ruling so as to enable it to give judgment. However, precisely in the light of the function entrusted to the Court, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions, the Court has invariably refused to give a ruling on questions from national courts where it is evident that the provision of Community law of which an interpretation is sought could not be applied.
9.

From the substantive point of view, the following point must be considered first. Articles 9, 12, 13 and 16 of the Treaty explicitly prohibit customs duties and charges having equivalent effect but do not contain a similar express provision concerning the State's obligation regarding expenses. And it is that obligation which we must examine, in so far as non-compliance with it has resulted in the costs of the service being transferred to economic agents. As pointed out earlier, the full significance of the provisions referred to by the national court within the scheme of the Treaty must be borne in mind. Without doubt, they are the embodiment of a principle governing the establishment of the Community and represent an essential value to which there can be no exceptions: the cross-frontier movement of goods must be unhindered and is so unhindered when it gives rise to no pecuniary charges to be borne by the economic agents concerned. The prohibition of collecting customs duties and levying charges having equivalent effect is not therefore an end in itself. The inspiration of the provisions containing it, to which attention was drawn in Bauhuis, thus lies is the need to ensure, in accordance with Article 3(c) of the Treaty, the realization of an effective internal market, conferring on economic agents the right to see all obstacles to intra-Community trade removed. It is therefore a prohibition which pursues a primary aim of the Treaty: the establishment of a genuine common market and the absence of any obstacle of a pecuniary nature to the free cross-frontier movement of goods are interdependent. The provisions intended to ensure that the free movement of goods is fully guaranteed were also prompted by the wish to prohibit inaction by the State of the kind apparent in the present case: inaction which allows the costs of customs services to be borne by individuals and therefore ultimately frustrates that fundamental guarantee, even though no charge having equivalent effect to a customs duty is imposed. The prohibition of such sins of omission is, it may be said, only implied in the provisions under consideration, which do not impose it expressis verbis: however, it must be added immediately, it finds further, unequivocal support in the general principle expressly stated in the second paragraph of Article 5, according to which the Member States are to abstain from jeopardizing the attainment of the objectives of the Treaty. The provisions referred to in the order for reference must therefore be read in conjunction with those of Article 5, by reason of the link which, as I explain below, exists between those two sets of provisions as far as the rules applicable to this case are concerned.
16.

Taking that rule of interpretation as the criterion and having regard also to the Court's earlier case-law, I consider that in order to determine which cases come within the concept of ‘undertaking, business or part of a business’ and, more generally, in order to determine whether the directive is applicable, the question to be addressed is essentially whether there has been a transfer of an activity in regard to which, from an organizational point of view, the relationship between the workers and the undertaking carrying out the transfer had assumed a definite form. As the Court held in Botzen and Others, ( 16 ) the employment relationship is essentially characterized by the link which exists between the worker and the business of the undertaking within which he performs his duties. The reply to that question presupposes that the specific activity is characterized by a certain autonomy of organization in the sense that in carrying on that activity one or more workers together possibly with materials have been assigned thereto, though that factor does not necessarily constitute a decisive criterion in that connection. ( 17 ) In such a case the transfer of the activity is accompanied by the transfer of an organic entity or in any event has an effect on that entity. If that criterion is upheld it must be acknowledged that the transfer even of an isolated activity limited as to time comes within the scope of the directive and that, consequently, employees whose employment relationship is structurally linked to the carrying on of that actual activity enjoy the protection afforded by the directive. As the Court has acknowledged, that protection covers all employees in the context of the activity in question and it must be available even if only one worker is affected by the transfer. ( 18 ) On the other hand, if that criterion is lacking one is dealing with a transfer of an activity without organizational underpinning as prescribed above, which means in such a case the directive does not apply. The fact that in the present case, in addition to the transfer of the relevant works to the new employer materials and two apprentices were also transferred are factors which at first sight militate in favour of the idea that there was in fact in this case from an organizational point of view an actual employment relationship as regards the workers concerned in the framework of the works transferred, obviously subject to the proviso that, as stated above, the assessment of the facts and final judgment are matters for the national court.
3.

Since the Commission was not informed of any transposition by the Member State, it initiated the procedure for failure to fulfil obligations by a letter of formal notice dated 14 October 1992. There was no reply to the letter. The Commission thereupon delivered a reasoned opinion on 11 May 1993. By a letter of 15 July 1993 from the Permanent Representation of Ireland to the European Communities, the Irish Government informed the Commission that a transposition procedure was in progress. Since the Commission was not informed of the completion of the procedure, it brought an action before the Court on 14 April 1994. The Irish Government observed in its defence that by Statutory Instrument No 255 of 1994, signed by the Irish Minister for Agriculture on 26 July 1994, Ireland had transposed the directive, with the exception of provisions relating to fish and fishery products.