ddrg/super_eurlex huggingface dataset:
Opinion of Mr Advocate General Mischo delivered on 20 June 2002. - Commission of the European Communities v Ireland. - Failure by a Member State to fulfil its obligations - Failure to implement Directive 98/20/EC. - Case C-327/01.



European Court reports 2002 Page I-08817



Opinion of the Advocate-General

1. In the action which is the subject of this Opinion, the Commission of the European Communities seeks a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/20/EC of 30 March 1998 amending Directive 92/14/EEC on the limitation of the operation of aeroplanes covered by Part II, Chapter 2, Volume 1 of Annex 16 to the Convention on International Civil Aviation, second edition (1988), Ireland has failed to fulfil its obligations under that directive.

2. The Commission observes that under Article 3 of the Directive the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with their obligations thereunder by 1 March 1999 at the latest and that they are immediately to inform the Commission of the measures adopted for that purpose.

3. Since it had received no information from which it could conclude that Ireland had adopted the necessary measures, the Commission brought the action which is the subject of this Opinion.

4. Ireland concedes that it did not adopt the implementation measures required within the period prescribed. However, it requests the Court to suspend the procedure for a period of three months, by which time it anticipates that the Directive will have been implemented in Ireland, and hopes that the Commission will then discontinue proceedings.

5. Neither the existence of Ireland's obligation to adopt the measures necessary to comply with the Directive nor the failure to comply with that obligation can be disputed. In that respect, it should be remembered that the Commission sent Ireland a reasoned opinion dated 21 October 1999 which set a time-limit of two months for the adoption of the necessary measures and that Ireland itself admits that this has not been done since those measures are still in the course of being adopted.

6. The finding by the Court of a failure to fulfil obligations is therefore justified.

Conclusion

7. For the above reasons, it is proposed that the Court should:

- declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/20/EC of 30 March 1998 amending Directive 92/14/EEC on the limitation of the operation of aeroplanes covered by Part II, Chapter 2, Volume 1 of Annex 16 to the Convention on International Civil Aviation, second edition (1988), Ireland has failed to fulfil its obligations under that Directive;

- order Ireland to pay the costs.
Opinion of Mr Advocate General Geelhoed delivered on 6 June 2002. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Directive 98/78/CE - Failure to transpose within the prescribed time-limit. - Case C-312/01.



European Court reports 2002 Page I-07053



Opinion of the Advocate-General

1. In the present case, the Commission of the European Communities seeks a declaration by the Court that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group or, in any event, by failing to notify the Commission of those measures, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty.

2. The Directive was published in the Official Journal of the European Communities on 5 December 1998. In accordance with Article 11(1) of the Directive, the period for transposition expired on 5 June 2000.

3. The Directive lays down rules on the supplementary supervision of insurance undertakings in an insurance group. Its purpose is thereby to enable the authorities supervising an insurance undertaking to form a more soundly-based judgment of its financial situation.

4. The Greek Government concedes that it failed to transpose the Directive within the prescribed period. It submits that the procedure for adoption of a draft presidential decree to transpose the Directive is underway. According to the Greek Government, that draft was being examined by the Greek Council of State at the time when the reply in the present proceedings was lodged. It further submits that the Greek authorities will have regard to the obligations under the Directive in their dealings with the authorities of other Member States.

5. It should be borne in mind that, according to the settled case-law of the Court, a Member State may not rely on provisions, practices or circumstances in its internal legal order to justify its failure to comply with the obligations and time-limits laid down in a directive. It is likewise settled case-law that, when transposing a directive, a Member State must ensure that its legislation is consistent with the provisions of the directive and may not be content simply with administrative practices.

Conclusion

6. In light of the foregoing, I propose that the Court should:

(a) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group, the Hellenic Republic has failed to fulfil its obligations under that directive;

(b) order the Hellenic Republic to pay the costs in accordance with Article 69(2) of the Rules of Procedure.
((Action for failure by a Member State to fulfil its obligations – Waste management – Disposal of polychlorinated biphenyls – Inventoried equipment))
((Appeal – Bananas – Imports from ACP States and third countries – Calculation of annual reference quantity allocated to operators – Quantity fixed by a national court in proceedings for interim relief – Inclusion – Conditions))
((Directive 71/305/EEC – Directive 93/37/EEC – Directive 89/665/EEC – Change in the composition of a consortium after provisional award of contract – Effect on participation in procedures for award of contract – Prohibition under national law – Legal protection))
((Colour trade mark – First Council Directive 89/104/EEC of 21 December 1988 – Article 2 – Sign capable of being represented graphically – Sign capable of distinguishing the goods and services of one undertaking from those of other undertakings – Colour without shape or contour – Refusal to register))
((Appeal – Officials – Reconstruction of career – Consideration of comparative merits – Limits of judicial review))
((Sixth VAT Directive – Article 13B(b) – Exempt supplies – Leasing and letting of immovable property – Installation of cigarette machines in public houses))
((Agriculture – Animal health – Emergency measures to combat bovine spongiform encephalopathy – Mad cow disease – Decision to lift the ban on bovine products originating in Portugal))
((Public contracts – Directive 89/665/EEC – Persons to whom review procedures are available))
((Export refunds – Articles 47 and 48 of Regulation (EEC) No 3665/87 – Refusal of applications for the granting of further time for submission of documents relating to completion of the export transaction))
((Partial annulment of Commission Regulation (EC) No 690/2001 of 3 April 2001 on special market support measures in the beef sector – Power of the Commission to provide for compulsory co-financing by the Member States in an implementing regulation – Compatibility with certain financial provisions of the EC Treaty (Articles 268 EC to 270 EC) – Obligation to state reasons for Community acts))
((Treaty infringement proceedings – Application of social security schemes to workers moving within the Community – Unemployment benefits – Frontier workers – Entitlement to benefits when seeking work in another Member State))
((Principle of equal pay for men and women – Direct effect of Article 141 EC – Self-employed female lecturer undertaking work of presumptively equal value to that which is undertaken in the same college by male lecturers who are employees, but under an agreement with a third party – Self-employed lecturers not eligible for membership of an occupational pension scheme))
((Approximation of laws – Directive 84/5/EEC – Compulsory insurance against civil liability in respect of motor vehicles – Inclusion of interest and costs in compensation – Determination of compensation by a body other than a court or tribunal – Right to a judicial determination – Defective transposition of the directive – Liability of the Member State concerned))
(Control of concentrations – Article 21(3) of Regulation (EEC) No 4064/89 – Action taken by Member States to protect their legitimate interests)
(External Community transit – Incurring of a customs debt – Grounds for repayment – Liability of principal)
(Protection of the environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – Marketing of natural mineral waters – Directive 80/777/EEC – Exemption, while the overall proportion of reusable bottles exceeds 72%, from the obligation to charge a deposit on non-reusable bottles, by participating in a comprehensive packaging management system – Loss of this option, when the proportion falls below that figure, for operators in drinks sectors in which the proportion of reusable bottles does not reach the 1991 level)
(Action for failure to fulfil obligations – Alleged incompatibility of a national measure – Conformity of that measure with an unchallenged directive – Conditions for admissibility – Article 90 EC – Excise duties – Ouzo and other beverages – Similarity)
((Free movement of goods – Alarm systems and networks – Interpretation of Articles 28 and 30 EC – Interpretation of Directives 73/23/EEC, 89/336/EEC and 1999/5/EC – Compatibility of national legislation making marketing subject to a prior approval procedure))
((Pirated and counterfeit goods – No punishment under criminal law where goods are in external transit – Compatibility with Regulation No 3295/94))
((Social policy – Male and female workers – Equal pay – Application of Article 119 of the EC Treaty (now Article 141 EC), Directive 86/378/EEC or Directive 79/7/EEC – Concept of pay – Pension scheme for officials – Calculation of pensions for part-time officials – Unequal treatment compared to full-time workers – Indirect discrimination on the ground of sex – Justification by objective factors unrelated to discrimination on the ground of sex – Protocol concerning Article 119 of the EC Treaty (now Protocol concerning Article 141 EC) – Temporal effects of judgment))
(Action for failure of a Member State to fulfil its obligations – France – Freedom to provide services and free movement of capital – Income tax – Income from investments – Choice for taxpayer between imposition of the tax and application of a fixed levy – Exclusion of income paid by persons and bodies established or resident in other Member States)
(Trade marks – Article 12(2)(a) of First Directive 89/104/EEC – Revocation of rights conferred by the trade mark – Trade mark which has become the common name in the trade for the goods or services in relation to which the mark is registered – Assessment criteria – Determination of the relevant classes of persons for the purposes of the assessment – Persons in the trade who deal with the goods or services concerned commercially – Consumers or end users of that type of goods or services)
(Appeal – Secondment to a political group – Decision terminating the secondment – Right to a proper hearing)
(Common agricultural policy – Integrated administration and control system – Application for ‘livestock’ aid – Irregularity – Penalty – Retroactive application of a less severe penalty)
(State aid – Non-payment of taxes and social security contributions by an undertaking – Conduct of public authorities as creditor of an undertaking in difficulty)
ii) Taking account of the precautionary principle and permissible doubts as regards the authorisation of plans and projects
(Regulation No 3577/92 – Maritime cabotage – Freedom to provide services – Vessels entered in a second or international register – Island cabotage – Manning – Responsibility of the host State)
(TRIPs Agreement – Article 16 – Protection of trade marks – Protection of trade names – Use of a trade name as a trade mark)
(Failure by a Member State to fulfil its obligations, Article 228 EC – Failure to comply with the judgment of the Court of 11 June 1991 in Case C-64/88 – Failure to ensure compliance with technical conservation measures relating to the minimum size of fish, in particular hake – Failure to record infringements which the national authorities could have found to exist and to charge offenders – Penalty payment)
(Free movement of goods – Charge having equivalent effect to a customs duty – Tax on marble excavated within, and transported from, a municipality's territory – Purely internal situation)
(Appeal – Invalidity pension – Occupational disease – Exposure to asbestos – Resignation tendered before the illness is recognised as an occupational disease)
(Failure to fulfil obligations – Articles 8 and 11(1) of Council Directive 92/50/EC relating to the coordination of procedures for the award of public service contracts – Contract for the transport of waste concluded by the City of Munich without observing European rules on publication)
(Fisheries – Regulation (EC) No 2371/2002 – Act of Accession of Spain – Access to the zone within 12 nautical miles of the coast – Conservation of fisheries resources – Principle of non-discrimination)
(Directive 75/439 – Disposal of waste oils – Processing by means of regeneration – Priority)
(Reference for a preliminary ruling – Bundesfinanzhof – Interpretation of Articles 12 and 18(1) EC with regard to national income tax legislation – Deductiblility from taxable income of maintenance payments to an ex‑spouse liable to tax on those sums – Deduction not permitted where the ex‑spouse resides in a Member State which does not consider the allowance received to be taxable income)
(Value added tax – Reduced rate of tax – Importation of works of art, collectors' items and antiques – Public auction of goods subject to temporary importation arrangements – Auctioneer's margin)
33.

The Commission states that, in paragraph 81 of the judgment under appeal, the General Court observed that ‘[i]n so far as the Commission does not object to disclosure of the document in question and sets out in its decision the reasons relied on by the Member State, it is the reasons put forward by that Member State and repeated in the said decision which are to be considered by the EU judicature.’ Therefore, when the General Court stated that ‘it is not necessary to deal with the question whether the Commission was obliged ... to carry out a prima facie review or a full review of the reasons on which the Member State bases its objection’ (paragraph 84) or that that question is ‘irrelevant’, what the General Court was actually doing was not so much establishing a right of veto but rather saying that the decision of the institution must be based on the exceptions laid down by Regulation No 1049/2001, regardless of whether those exceptions are based on an assessment by the institution itself or by the Member State concerned. When, for the purposes of review, the institution checks whether the exceptions and reasons relied on by the Member State are prima facie lawfully invoked in the light of the circumstances of the case, and presents those reasons in the final refusal decision, those reasons are the institution’s reasons and may be the subject of judicial review, regardless of their origin. The Commission contends that the General Court therefore took a very classic position when it stated that the institution must make clear the reasons for its decision and the Courts of the European Union must review those reasons. In the Commission’s view, that is consistent with the guidelines laid down in Sweden v Commission.
9.

At the time of expiry of the deadline contained in the reasoned opinion, the website of the French Ministry of Finance included a variety of practical information aimed at purchasers of products subject to exercise duty exercising freedom of movement in France and other Member States. According to the Commission’s application, the information provided by the Ministry of Finance included the following: ‘General matters If, when you travel to other countries of the European Union, you buy goods for your personal use, you will not be required to submit a declaration or to pay duties or taxes at the time of departure from or arrival in France. You must pay value added tax (VAT) directly in the country where you make your purchases and in accordance with the tax rate in force in that country. If you buy alcoholic beverages and tobacco, Community legislation has provided for guide thresholds relating to purchases by private individuals. Above the thresholds applicable to tobacco and alcohol, which are set out below, and on the basis of other criteria, your purchases may be deemed to be commercial by the French customs services. In that case, you must pay the duties and taxes applicable in France in respect of each product. These thresholds also apply in the case of departures from France to another Member State of the European Union. Tobacco Pursuant to Articles 575 G and 575 H of the General Tax Code, as amended by the Law on the financing of social security for 2006, the following provisions will apply with effect from 1 January 2006 to purchases of tobacco by private individuals in another Member State of the European Union, with the exception of the 10 new Member States: — You may bring back five cartons of cigarettes (in other words, 1 kilogram of tobacco) without holding a movement document. Warning: the threshold applies per individual mode of transport or per person over the age of 17 in the case of public transport (the latter meaning any mode of transport carrying more than nine people, including the driver). — Where between 6 and 10 cartons are brought back, you must present a simplified accompanying document (SAD). In the absence of a SAD, a traveller who undergoes checks risks seizure of the tobacco and a penalty. The individual may abandon these quantities. In that case, no penalty will be imposed. — To obtain this document, you simply need to go to the first French customs office after the border. — It is prohibited to bring in more than 10 cartons of cigarettes (or 2 kilograms of tobacco) in all cases. A person who undergoes checks risks the sanctions (seizure of the tobacco and a penalty) referred to above. In the case of public modes of transport (aircraft, ship, bus, train), these provisions apply per passenger.’
7.

Article 9 of Directive 2003/87 states: ‘1. For each period referred to in Article 11(1) and (2), each Member State shall develop a national plan stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them. The plan shall be based on objective and transparent criteria, including those listed in Annex III, taking due account of comments from the public. The Commission shall, without prejudice to the Treaty, by 31 December 2003 at the latest develop guidance on the implementation of the criteria listed in Annex III. For the period referred to in Article 11(1), the plan shall be published and notified to the Commission and to the other Member States by 31 March 2004 at the latest. For subsequent periods, the plan shall be published and notified to the Commission and to the other Member States at least 18 months before the beginning of the relevant period. 2. … 3. Within three months of notification of a national allocation plan by a Member State under paragraph 1, the Commission may reject that plan, or any aspect thereof, on the basis that it is incompatible with the criteria listed in Annex III or with Article 10. The Member State shall only take a decision under Article 11(1) or (2) if proposed amendments are accepted by the Commission. Reasons shall be given for any rejection decision by the Commission.’
7.

Article 11 of the order concerns approvals and provides, essentially, as follows: ‘1. No facility ... may be brought into service ... without having first been approved. Approval shall be granted ... for a maximum, renewable, period of six years. The approval decision ... shall determine the maximum number of elderly people who can be accommodated or received in the facility. To be approved ..., the facility must comply [with] ... and with any rules which the General Executive may ... lay down for each category of facility referred to in Article 2(4). Those rules shall relate to: 1. the admission and reception of the elderly; 2. respect for the elderly, their constitutional and legal rights and freedoms, having regard to their state of health and their right to lead a life in keeping with human dignity ...; 3. “life plans” and arrangements to enable the elderly or their representatives to participate and be informed; 4. the consideration and processing of complaints made by the elderly or their representatives; 5. the nutrition, hygiene and care to be provided; 6. the number, qualifications, training programme, good character and minimum attendance requirements for staff and management and, in respect of the latter, the amount of experience required; 7. … the specific building and safety standards rules applying to facilities; 8. … reception or accommodation agreements; … In particular, agreements must clearly specify everything that is included in the daily rate and the expenses over and above the daily rate that may be separately invoiced by way of a supplement or by way of a payment on account to third parties. … … 12. insurance policies …’
36.

The Commission disputes the correctness of the case-law to the effect that the use of slurry for needs other than agricultural needs does not preclude its classification as a by-product, since that approach is incompatible with the need to interpret the concept of ‘waste’ in the light of Article 191 TFEU. The Commission states that the condition of certainty will not be satisfied unless it can be proved, at the time of storage, that the slurry can be applied by the producer to his own land in quantities which do not exceed the genuine agricultural needs of his farm and/or unless it has a positive economic value confirmed by the producer and is intended for use on the land of other producers on the basis of a contract or offer in quantities no higher than those which may be used on that land in accordance with the same conditions. The EPA contends that it would be spurious to rely on the fact that its functions are defined by reference to the concept of ‘waste’ as used in Directive 75/442 in order to frustrate the objective of the integrated control of pollution, pursued in the context of the 1992 Law. In the EPA’s opinion, the degree of certainty to be required is that which excludes all reasonable doubt on the part of the competent authority that the producer will not discard the slurry and that the slurry will actually be used as fertiliser under the proper conditions, a matter which can be established only by the producer himself and which it falls to him to prove; otherwise, a presumption would arise that the slurry constitutes ‘waste’ which the producer may be required to dispose of under national law in accordance with a scheme which, in the case of Ireland, is the one laid down in the 1992 Act, even though that act classifies as ‘waste’ substances which are not waste under Directive 75/442.