ddrg/super_eurlex huggingface dataset:
OPINION OF MR ADVOCATE-GENERAL

DUTHEILLET DE LAMOTHE

DELIVERED ON 9 JUNE 1971 ( 1 )

Mr President,

Members of the Court,

Mr van Eick, who was a scientific officer at Euratom, was dismissed from his office by a disciplinary decision on 4 July 1967.

By your judgment of 11 July 1968 you annulled that decision, finding that the hearing of the official concerned which took place during the disciplinary proceedings had not been properly conducted.

Following your judgment Mr van Eick was reinstated and new disciplinary proceedings were instituted against him. During these proceedings he refused to be heard by the members of the Commission who had summoned him for that purpose.

He was again removed from his post and asked you to annul this further measure.

By your judgment of 4 February 1970 you rejected this request finding in particular that there had been no irregularity in the procedure.

Mr van Eick would not accept this ana submitted a new request to the Commission for the revocation of the decision removing him from his post, for the disciplinary proceedings to be once more instituted against him and for the award of compensation.

In his present application Mr van Eick asks you to annul the Commission's decision dismissing the said request. In my view it is obvious that such an application cannot be entertained by you.

As the Commission rightly emphasizes, the application founders on the force of res judicata of your judgment of 4 February 1970 as a result of which the removal of Mr van Eick from his post became irreversible.

In fact, since the applicant has no grounds to put forward in support of an application for revision in the circumstances laid down by Article 41 of the Protocol on the Statute of the Court, he has sought to achieve the same result, that is to say, once more to call in question your judgment, by way of a request to the Commission.

The Commission has declined to become involved with this manoeuvre and in my view you can only confirm that its attitude is correct.

Since Mr van Eick's application in my opinion amounts to an abuse of the process of the Court I propose that you should refuse to allow him to benefit from the provisions of Article 70 of the Rules of Procedure and that you should order him to bear the entire costs of the proceedings.

My opinion is, therefore,

1. That the application should be dismissed;

2. that the costs of the proceedings should be borne by Mr van Eick.

( 1 ) Translated from the French.
OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 9 MARCH 1978

My Lords,

In this case I would not feel justified in asking Your Lordships to adjourn while I consider my Opinion. The question Your Lordships have to decide is too simple and the answer to it too clear.

In paragraph 5 of its Judgment in Case 1/77 ([1977]) ECR 1473) the Court said:

‘By only mentioning patented inventions in accordance with which goods are manufactured, Article 3’ that is Article 3 of the Regulation ‘seems to exclude patented inventions which relate to the process of use of the article. However, this distinction loses its meaning in cases in which the manufactured article and the process of use thereof are so closely linked that the manufactured article and the process of use are embodied in one and the same article. In fact the result of an interpretation of Article 3 in accordance with the objectives of the basic provision laid down by Article 1 of the regulation is that a patented process, the carrying out of which constitutes the only economically viable use of the goods and which is only put into effen by the use of those goods, is regarded as embodied in the imported goods.’

That accorded with what I had myself said on the matter in my Opinion (see [1977] ECR at pp. 1490-91).

The difficulty has arisen because the words ‘and which is only put into effect by the use of those goods’ were not reproduced in the operative part of the Judgment.

In my opinion however the operative part of a Judgment of this Court should always be interpreted in the light of the reasoning that precedes it.

I am accordingly, like the Commission, of the opinion that the question now referred to the Court by the Finanzgericht should be answered in the sense contended for by the Plaintiff.
OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 3 MAY 1979

My Lords,

You have heard the last exchange of questions and answers between Judge O'Keeffe and myself on the one hand and the learned Agent for the Commission on the other hand. You have heard a very full argument. I do not think that any useful purpose would be served by my asking Your Lordships for time to consider my opinion.

I think the whole answer to the case is disclosed in that last interchange of questions and answers. It brought out the fact that there is no Community text whatsover that requires or empowers a customs authority to adjust or not to adjust the MCA in the three different cases to which I referred, that is, as the Commission would have it, to charge an extra MCA in a case like the present, to decide not to charge an extra MCA in a case of force majeure, and to decide, in the case of an importation into a depreciated currency country, not to grant an additional MCA. Article 20 of each of the Regulations in question, No 1259/72 and No 232/75, is perfectly neutral on that matter. It merely says that the MCA shall be affected by a coefficient of 0.3.

The argument of the Commission that, in a case where the use of the product has not been that prescribed by Regulation No 1259/72 or No 232/75, that fact takes the case out of the exception in Article 20 and brings it into the general rule contained in the Regulations of the Commission fixing the MCA's generally for the relevant period, I can quite understand. But it proves too much, because, if it is right, there should be an adjustment in all cases. The Regulations of the Commission possibly ought to provide for an adjustment in a case like the present. But in fact they do not prescribe any such adjustment. They leave the matter undealt with and this Court cannot, in my opinion, read into those Regulations provisions that are not there.

For that reason I am of the opinion that the answer to the first question asked by the Finanzgericht in each case should be that Article 20 of Regulation No 1259/72 or (as it may be) of Regulation No 232/75 is to be interpreted as meaning that the reduction of the monetary compensatory amount is subject only to the condition that the product has been marketed in accordance with Articles 1 to 19 of the Regulation and that there is no further condition that it should be used in the manner prescribed by the Regulation. On that footing the second question does not arise.
OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 18 DECEMBER 1980

My Lords,

My own view is that this is a very simple case and I need not take time to consider my opinion.

I entirely agree with the Commission's conclusion. The crux in my opinion is that there is nothing here that can be described as a “payment” within the meaning of Article 2 (a) of the Directive, nothing that can be described as “consideration” within the meaning of Article 8 — consideration for the service provided for the members of the association — and nothing that can be described as “received” by the association within the meaning of point 13 of Annex A. Certainly the reduction in the value of their shares suffered by the members cannot be so described. One cannot in my opinion escape from the fact that there is no payment by the members and no receipt by the association. To cover such a case as this, one would need a specific provision deeming there to be consideration where there is not.
OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 17 DECEMBER 1981 ( 1 )

Mr President,

Members of the Court,

In Case 55/81 I should like in essence to follow the worthy example set by Mr Advocate General Warner in Case 69/79, Jordens-Vosters v Bedrijfsvereniging voor de Leder- en Lederverwerkende Industrie ([1980] ECR 88). In principle I subscribe in this case too so completely to the observations of the Commission that it accordingly suffices for me to adopt them as my own. The questions submitted to the Court by the Seventh Chamber of the Labour Tribunal, Liège, should in fact be answered, in my opinion, in accordance with the proposals of the Commission in this matter.

In this connection I would simply add that the Office National des Pensions pour Travailleurs Salariés (ONPTS)

acknowledged during the oral procedure the correctness of the remarks of the Commission with regard to the periods of employment abroad required to comply with Article 13 (2) (d) of Regulation No 1408/71 (defence at pp. 6 and 7).

The provisions regarding increased benefits provided for by that article in conjunction with the Belgian legislation concerning periods spent in military service and as a prisoner of war has, however, already led to an increase in Mr Vermaut's pension. The questions of the Labour Tribunal did not, however, relate to that point. Since that matter has become irrelevant to the original dispute it need accordingly have no effect on the answers drawn up by the Commission, which I have adopted, to the questions submitted.

( 1 ) Translated from the Dutch
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 22 JUNE 1982

My Lords,

This is an application by the Commission pursuant to Article 169 of the EEC Treaty, for a declaration that the Kingdom of Belgium has failed to fulfil its obligations under the Treaty in that it has not brought into force the measures needed in order to comply with the second Council Directive on Company Law Harmonization (Directive 77/91 of December 13, 1976, OJ 1977, L 26 p. 1) within the period fixed for doing so by Article 43 of the latter. That period expired on 16 December, 1978, two years after the date on which the directive was notified to the Member States.

The Kingdom of Belgium has not denied, either in the written procedure or in its oral submissions, that it has failed to comply with the directive. It contends that its failure is due in part to the particular problems arising in Belgium by reason of its legislative procedures, coupled with its political crisis, and in part to the fact that the timelimits set in the directive were, in the view of the Belgian Government, too short. A bill designed to implement the directive was approved by the Council of Ministers on 15 September 1978. It was then transmitted to the Council of State, which gave an opinion thereon on 29 January 1979. It was then revised, submitted again to the Council of Ministers and presented to the Chamber of Representatives on 5 December 1979. Despite the government's insistence on the urgency of the matter, the bill remains under consideration by a special committee of the Chamber concerned with company law, but approval of the bill by one of the Chambers, the Court was told at the oral hearing, could only be expected “within six weeks or two months” and that the bill would be adopted before the end of the current year.

It is well established, in my view, by the cases decided by the Court that a Member State is not entitled to rely on circumstances or practices existing in its own internal system to justify failing to comply with the obligations imposed on it by a directive.

In consequence, in my opinion, the declaration sought by the Commission should be granted in this case and the Kingdom of Belgium should be ordered to pay the costs.
2.

Let us consider the applicant's case. As I have said, he considers that the said decision gives former Chefs de Cabinet a right to promotion at the end of their period of secondment and also fixes the period within which the institution must make the promotion. Its wording and especially the phrase “où la promotion leur est assurée” support his view. The refusal to promote him is therefore unlawful because: (a) it breaches the principle of the protection of legitimate expectation; (b) it is discriminatory treatment vis-à-vis other officials seconded to cabinets; and (c) it amounts to a misuse of powers. That interpretation is, however, entirely without foundation. As the defendant institution observes, the decision of 28 July 1981 was intended to amend a previous decision adopted by the Commission on 20 June 1979, also relating to the reinstatement after promotion of officials seconded to a member's office. The new measure is intended mainly to reduce the periods allowed in the previous decision for posting to the new department. The maximum period of three months which it fixed in the case of promotion to A 1, A 2 and A 3 is thus intended to reconcile two important requirements: to fill high managerial posts speedily and to allow member's offices to reorganize and to select new staff. The discussion which preceded the decision (Doc. PERS (81) 171) and, if properly considered, the wording of the decision itself confirm the Commission's view. It is obviously badly drafted (and the phrase cited by the applicant, which is so incomprehensible as to lead to a suspicion of a misprint, demonstrates it per tabulas). But the interpretation attributed to it by Mr Steinfort to the effect that an official promoted while on secondment should, once he is reinstated in his department, obtain a “second” promotion of which “he is assured” by the institution, is absurd and in patent contradiction with the Staff Regulations. If it is read less hastily it will be perceived that there is a definite connection between the words “dans un certain délai” and “réintégreront leur service”; it follows that the period of three months can mean only the period within which the official must take up his new post. In any event it is clear that the wording in question expressly covers the case of an official of Category A promoted while on secondment to a member's office. As we know, Mr Steinfort was promoted subsequently; he could therefore obtain no advantage from the decision even if his interpretation were correct.
4.

The Commission in fact raises an objection of inadmissibility arguing that: — The staff concerned did not comply with the requirements of Article 90 of the Staff Regulations because they did not lodge a request prior to their complaint; — In any event, the adoption of the disputed regulations by the Council cannot be regarded as a new fact which may substantially change their situation under Regulation No 2615/76. The first submission advanced in support of the objection of inadmissibility does not seem to me to be relevant. The complaint whose rejection led to this action concerned the salary statements issued from February 1982, that is to say documents incorporating the Commission's decision to apply the contested Council regulations. Since such a decision was adopted and, as both the Commission and the applicants agree, it was indeed impossible for it not to be adopted, the applicants were entitled immediately to submit a complaint under Article 90 (2) of the Staff Regulations. It must, however, be noted that, after receiving the complaint submitted by the applicants on 24 May 1982, the Commission, in its letter of 20 December rejecting the complaint, made no mention of any need to submit a prior request. Nevertheless, in my opinion the objection of inadmissibility should be upheld by reason of the second submission. The situation of which the applicants complain does in fact arise from Council Regulation No 2615/76. Despite the difference in pay complained of, that regulation considerably improved the situation of the staff concerned and this explains why no objection was raised against it at that time. The 1981 regulation, which introduced the crisis levy, and the 1982 regulations maintained the percentage difference established in 1976. They did not increase it in any way. They do not constitute, any more than the Commission's recent proposal to eliminate this difference, a new fact, which substantially changed the circumstances in which the initial decision was adopted, to paraphrase the terms used by the Court in its judgment in Tontodonaú. ( 2 ) The present application should therefore be declared inadmissible on that ground.
1.

The Court is called upon to interpret Regulation No 1408/71 of the Council of 14 June 1971 on the social security schemes applicable to migrant workers (Official Journal, English Special Edition 1971 (II), p. 416) in the context of a reference for a preliminary ruling on a question relating to sickness and maternity benefits for unemployed people. On 30 June 1977 Mrs Antje Guyot, a German national, resigned from the job she held in the Federal Republic, and on 1 August she registered with the German employment authorities as being unemployed. A month later she went to live permanently in France so as to be with her husband, a French national, and on 5 September 1977, since she was still unemployed, she registered with the Agence Nationale pour l'Emploi [National Employment Agency]. For a period of three months, that is, until 1 December, Mrs Guyot received unemployment benefits from the German social security authorities. However, from that date, benefits were paid to her by the Association pour l'Emploi dans les Industries et le Commerce (Assedie) [Association for Employment in Industry and Commerce] on the basis of a provision which, since it does not employ as a criterion the State in which the person was last employed, is more favourable than the relevant Community rules (see circular No 73-8 of 19.3.1973 issued by the Union Nationale Interprofessionnelle pour l'Emploi dans l'Industrie et le Commerce, known as Unedic [National Interprofessional Association for Employment in Industry and Commercel]. On 21 March 1980, the Caisse Primaire d'Assurance Maladie [Local Sickness Insurance Fund, hereinafter referred to as “the Fund”] refused to reimburse Mrs Guyot for medical expenditure incurred in the period from January to March 1978, or to pay her the daily allowances provided for under the sickness and maternity insurance schemes. Mrs Guyot appealed against that decision to the Commission de Première Instance de Sécurité Sociale [Socicäl Security Board of First Instance], Rouen, which, by a decision of 28 April 1981, ordered the Fund to pay the abovementioned benefits. The Fund appealed against that decision. By an order of 30 June 1983, the court before which the appeal had been brought (the Cour d'Appel [Court of Appeal], Rouen) stayed the proceedings and referred the following question to this Court for a preliminary ruling under Article 177 of the EEC Treaty: “In the case envisaged by Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71 of the Council of the European Communities of 14 June 1971, is residence in the competent State prior to the end of the period of last employment in the Member State other than the competent State one of the conditions for obtaining the benefits referred to in Article 71?”
1.

The preliminary question which has been referred to you concerns the interpretation of the first sentence of the second paragraph of Article 40 of the Brussels Convention of 27 September 1968, hereinafter referred to as “the Convention”. Let us recall the facts and the course of the procedure. On 20 January 1982 the Netherlands firm P. obtained a default judgment from the Arrondissementsrechtbank, Rotterdam, ordering the firm K., whose registered office is in Jeddah, Saudi Arabia, to pay it the sum of 678095 Saudi riyals or the equivalent of that sum in dollars, together with interest as required by law. The judgment is provisionally enforceable, subject, in the event of an appeal, to the provision by the firm P. of adequate financial or other security. With a view to the enforcement of the judgment in the Federal Republic of Germany, where the firm K. has a bank account, the firm P. applied to the Landgericht Frankfurt am Main for an order for enforcement (Articles 31 and 32 of the Convention). By an order of 10 January 1983 made without the firm K. having been summoned to appear ( 2 ), the President of the Third Civil Division of the German court refused to grant an order for enforcement on the ground that the documents required by Articles 46 (2) and 47 (1) of the Convention had not been produced. The documents in question are: “The original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings” ( 3 ) and “Documents which establish that, according to the law of the State in which it has been given, the judgment is enforceable and has been served.” ( 4 ) The judgments notes moreover that, although the President of the court gave the firm P. time to produce the documents referred to ( 5 ), at the hearing that firm only produced the documents which the court did not consider of sufficient probative value. The firm P. therefore brought an appeal (“Beschwerde”) before the Oberlandesgericht Frankfurt am Main, pursuant to the first paragraph of Article 40 of the Convention. The second paragraph of Article 40 provides that: “The party against whom enforcement is sought shall be summoned to appear before the appellate court...” The Oberlandesgericht asks whether that provision must be applied “even” in the circumstances of this case. It inclines to the view that the provision need not be applied on two grounds, corresponding to the two elements of the preliminary question referred to you: (i) The application for an enforcement order was dismissed simply because the documents were not produced by the firm P. at the proper time. (ii) The system provided for by the second paragraph of Article 40 is unsuited to a case where enforcement is to take place in a State other than that in which the party against whom enforcement is sought is domiciled, since in such a case that party can in general identify the asset threatened by enforcement and thus dispose of it before it is seized.
5.

One might be tempted to uphold the objection of inadmissibility raised by the European Parliament in so far as it is based on the late submission of the complaint lodged on 11 July 1983. Indeed, it might be considered that the request of 22 November 1982 was rejected on 21 February 1983 and that the complaint against that decision ought to have been lodged by 22 May 1983. However, J. K. did in fact write to the European Parliament before that date. His letter of 25 February 1983, in which he asked for a special reasoned decision by 22 March 1983, the date on which the fourmonth period for an implied rejection expired, suggests that he considered that a final decision had not yet been taken about his case. He possibly thought that the definitive decision had not been taken until 21 April 1983. It is certainly possible to argue that he was mistaken but, if he was, he was implicitly misled by the Parliament itself, which, in its letter of 21 April, failed to point out to him that, in view of the express decision taken on 21 February 1983 rejecting his request, the date of 22 March indicated by J. K. was irrelevant and that he had to lodge a complaint before 23 May 1983. There is every reason to believe that the reason why the Parliament did not make those points to J. K. at that time was that, like J. K., it thought that the date of 21 February 1983 was not to be taken as the date on which time began to run for lodging a complaint. The subsequent correspondence bears out that view. When it mentions, in its letter of 2 August 1983, the decision by which it rejected J. K.'s request, the Parliament does not cite the date of 21 February but that of 21 April 1983. Furthermore, in taking note, in its letter of 12 August 1983, of the withdrawal of the appeal lodged by J. K. on 11 July 1983, when such withdrawal depended on the decision of 21 April 1983 being considered a decision on a request and not on a complaint, the Parliament implicitly adopts those classifications. J. K. was therefore right to consider that the decision rejecting his request of 22 November 1982 was taken on 21 April 1983. Consequently, he had three months in which to lodge a complaint against that decision. That period expired on 21 July 1983. His complaint was lodged on 11 July 1983 and cannot therefore be held to be out of time.