ddrg/super_eurlex huggingface dataset:
9.

Article 26 of the Staff Regulations establishes the following principle: ‘The personal file of an official shall contain: (a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct; (b) any comments by the official on such documents’. The ‘reports’ concern the official's performance in the service and form the basis of the decisions as to his advancement taken by the appointing authority pursuant to Articles 43 and 45 of the Staff Regulations. The definition of the other documents appears to me sufficiently wide to cover any document, whether its author be the administration or the person concerned, drawn up, like the foregoing documents, in accordance with the provisions of the Staff Regulations. The content of the personal file cannot be understood in a narrow sense by limiting it only to documents affecting the career of the official concerned as described in Title III of the Staff Regulations. Any document which has its source in the application of a provision of the Staff Regulations, whatever the authority from which it emanates, must form part of the personal file since it is relevant to and may affect the administrative status and career of the official. ( 7 ) That broad view is called for in particular on the part of the administration, because of the rule set out in Article 26 according to which ‘the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed’ in such a manner as to enable the official to make comments on those documents pursuant to Article 26 (b). That rule, which is an application of the audi alteram partem principle, ( 8 ) must cause the administration to adopt a broad view as to the content of the personal file. The official, who has free access to the file, may use any document with which he thereby becomes acquainted against the administration, even if such document has not been communicated to him.
Opinion of Mr Advocate General Darmon delivered on 15 December 1987. - Commission of the European Communities v Italian Republic. - Methods of testing the biodegradability of surfactants - Transposition of certain directives into national law. - Case 309/86.



European Court reports 1988 Page 01237



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The sole point at issue between the Commission and the Italian Government in this case is the extent of the failure to fulfil obligations under the EEC Treaty . According to the Commission, the failure consists in the fact that Council Directives 82/242 ( 1 ) and 82/243 ( 2 ) have not been transposed into Italian law . The Italian Government maintains that its domestic legislation includes provisions enabling some of the objectives of those directives to be attained so that its failure, which it does not dispute, consists in the fact that it has given effect only partially to those directives .

2 . The decided cases of the Court emphasize the obligation of the Member States to ensure the "full application" ( 3 ) of Community directives . The Italian Government has admitted that that is not the case in Italy . In addition, the Court has always held that difficulties concerning domestic procedures for the laying down of rules are not capable of justifying a State' s failure to fulfil its obligations .

3 . Consequently, I propose that the Court should :

( 1 ) Declare that, by failing to adopt within the period prescribed the measures needed to ensure the full application of Council Directive 82/242/EEC of 31 March 1982 on the approximation of the laws of the Member States relating to methods of testing the biodegradability of non-ionic surfactants and of Council Directive 82/243/EEC of the same date on the approximation of the laws of the Member States relating to methods of testing the biodegradability of anionic surfactants, the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

( 2 ) Order the Italian Republic to bear the costs .

(*) Translated from the French .

( 1 ) Decision 82/242 of 31 March 1982 on the approximation of the laws of the Member States relating to methods of testing the biodegradability of non-ionic surfactants ( Official Journal 1982 L 109, p . 1 ).

( 2 ) Decision 82/243 of 31 March 1982 on the approximation of the laws of the Member States relating to methods of testing the biodegradability of anionic surfactants ( Official Journal 1982 L 109, p . 18 ).

( 3 ) See, in particular, the Court' s judgments of 23 May 1985 in Case 29/84 Commission v Federal Republic of Germany (( 1985 )) ECR 1661, paragraph 23 at p . 1673; of 9 April 1987 in Case 363/85 Commission v Italian Republic (( 1987 )) ECR 1733, paragraph 7 at p . 1742; of 8 July 1987 in Case 247/85 Commission v Kingdom of Belgium (( 1987 )) ECR 3029, paragraph 9 at p . 3060, and of 8 July 1987 in Case 262/85 Commission v Italian Republic, (( 1987 )) ECR 3073, paragraph 9 at p . 3097 .
Opinion of Mr Advocate General Mischo delivered on 17 March 1988. - Commission of the European Communities v Kingdom of Belgium. - Technical requirements for inland waterway vessels. - Case 307/86.



European Court reports 1988 Page 02677



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The Belgian Government does not deny that it has in fact failed to fulfil its obligations under the Treaty, as the Commission has claimed in these proceedings . It expressly concedes the necessity of adopting domestic measures to ensure the conformity of Belgian law and Council Directive 82/714/EEC of 4 October 1982 laying down technical requirements for inland waterway vessels ( Official Journal 1982, L 301, p . 1 ).

2 . The defendant government explains the delay in implementing the directive, which, according to Article 22 thereof, ought to have been done by 1 January 1985 at the latest, by the fact that it has encountered a problem in determining responsibilities as between two ministerial departments regarding the issue of Community certificates attesting conformity, introduced by the directive, and by the need to bring about coordination at national level with a view to adapting several sets of national rules .

3 . However, "as the Court has consistently held, a Member State cannot plead provisions, practices or circumstances existing in its national legal system to justify a failure to comply with obligations and time-limits laid down in directives ". ( 1 ) Similarly, "a Member State cannot plead domestic administrative difficulties to justify the failure to comply with obligations and time-limits laid down by Community law ". ( 1 )

4 . I have therefore no choice but to propose that the Court allow the Commission' s application and declare that, by failing to adopt within the period prescribed the laws, regulations and administrative provisions necessary to comply with Council Directive 82/714/EEC of 4 October 1982 laying own technical requirements for inland waterway vessels, the Kingdom of Belgium has failed to fulfil its duties under the Treaty . It follows that the defendant Member State must be ordered to pay the costs .

(*) Translated from the French .

( 1 ) See, inter alia, the judgments of 24 November 1987 in Cases 124 and 125/86 Commission v Italy (( 1987 )) ECR 4661 and 4669, paragraph 6 in both judgments .

( 1 ) See, inter alia, judgment of 17 June 1987 in Case 394/85 Commission v Italy (( 1987 )) ECR 2741, paragraph 12 .
Opinion of Mr Advocate General Mischo delivered on 12 May 1989. - Refinarias de Açúcar Reunidas SA (RAR) v Council and Commission of the European Communities. - Application for a declaration that a measure is void - Admissibility - Aids to raw sugar refineries. - Joined cases 250/86 and 11/87.



European Court reports 1989 Page 02045

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Opinion of the Advocate-General

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Mr Advocate General Mischo delivered his Opinion on 12 May 1989 . (* ) He proposed that the Court should :

( 1 ) Primarily, declare that the two applications were inadmissible and order the applicant to bear the costs;

( 2 ) In the event that either or both applications should be declared admissible, re-open the oral procedure in order to supplement the information at the Court' s disposal on the applicant' s claim for the payment of an advance on the refinement aid;

( 3 ) Declare unfounded the other arguments put forward by the applicant .

(*) Original language : French .
Opinion of Mr Advocate General Darmon delivered on 1 March 1989. - Anna-Maria Fedeli v European Parliament. - Official - Deduction from salary. - Case 271/87.



European Court reports 1989 Page 00993

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Opinion of the Advocate-General

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Mr Advocate General Darmon delivered his Opinion on 1 March 1989 . (*) He proposed that the Court should :

( i)declare the application inadmissible in relation to the suspension of salary for the period from 1 August 1983 to 20 August 1984;

( ii ) order the European Parliament to pay the deductions from salary made in respect of the period from 3 July 1985 to 13 March 1986 together with interest at 8% per annum on the sums from the dates on which they fell due;

( iii ) dismiss the remainder of the application;

( iv ) order the defendant institution to pay half of the applicant' s costs in addition to bearing its own costs .

(*) Original language : French .
Opinion of Mr Advocate General Van Gerven delivered on 10 October 1989. - Sandoz prodotti farmaceutici SpA v Commission of the European Communities. - Competition - Concept of agreement. - Case C-277/87.



European Court reports 1990 Page I-00045

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Opinion of the Advocate-General

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Mr Advocate General Van Gerven delivered his Opinion on 10 October 1989 . (*) He proposed that the Court should dismiss the action in its entirety and order the applicant to pay the costs .

(*) Original language : Dutch .
61987C0259

JOINED OPINION OF MR ADVOCATE GENERAL LENZ DELIVERED ON 23 JANUARY 1990. - HELLENIC REPUBLIC V COMMISSION OF THE EUROPEAN COMMUNITIES. - AGRICULTURE - CLEARANCE OF EAGGF ACCOUNTS. - CASES 259/87, 334/87 AND 335/87.



European Court reports 1990 Page I-02845

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Opinion of Mr Advocate General Van Gerven delivered on 16 March 1989. - Ministère public v J.-P. M. Rispal and others. - Reference for a preliminary ruling: Tribunal de grande instance de Paris - France. - Common Customs Tariff - Magic cubes. - Case 164/88.



European Court reports 1989 Page 02041

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Opinion of the Advocate-General

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Mr Advocate General Van Gerven delivered his Opinion on 16 March 1989 . (* )He concluded that the Court should rule as follows :

Heading 97.03 of the Common Customs Tariff, as annexed to Council Regulation ( EEC ) No 3000/80, must be interpreted as covering articles known as "magic cubes ".

(*) Original language : Dutch .
Opinion of Mr Advocate General Jacobs delivered on 26 May 1989. - Ford España SA v Estado español. - Reference for a preliminary ruling: Audiencia Territorial de Valencia - Spain. - Free movement of goods - Charges having equivalent effect - Amount levied on customs clearance of goods on an importer's premises. - Case 170/88.



European Court reports 1989 Page 02305

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Opinion of the Advocate-General

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Mr Advocate General Jacobs delivered his Opinion on 26 May 1989 . (*). He proposed that the Court should rule as follows :

( 1 ) A national charge calculated as a proportion of the customs value of goods imported from other Member States and imposed on importers of such goods for whom customs clearance is carried out on their own premises, constitutes a charge having equivalent effect to a customs duty on imports, prohibited in Spain since 1 March 1986 by Articles 9 and 13 of the EEC Treaty in conjunction with Article 35 of the Act of Accession of Spain and Portugal .

( 2 ) A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means .

(*) Original language : English .

Judgment 170/88
Opinion of Mr Advocate General Jacobs delivered on 26 April 1989. - REWE-Handelsgesellschaft Nord mbH v Überwachungsstelle für Milcherzeugnisse und Handelsklassen. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - Agriculture - Water content of frozen poultry - Conditions under which checks are conducted. - Case 88/88.



European Court reports 1989 Page 01959

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Opinion of the Advocate-General

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Mr Advocate General F . G . Jacobs delivered his Opinion on 26 April 1989 . (* ) He proposed that the Court should rule as follows :

"Article 3(2 ) of Council Regulation ( EEC ) No . 2967/76 does not prohibit national rules whereby any batch of goods from which a sample has been taken must be withheld from the market until the inspection procedure is completed . Such national rules need not specify any time-limit for a suspension from the market; but any such suspension must not exceed the time which is necessary for the purposes of an effective system of inspection ."

(*) Original language : English .
Opinion of Mr Advocate General Mischo delivered on 11 January 1990. - Erich Wittmann GmbH & Co. KG v Hauptzollamt Nürnberg-Fürth. - Reference for a preliminary ruling: Finanzgericht München - Germany. - Common Customs Tariff - Ear-piercing instruments and stud earrings. - Case C-344/88.



European Court reports 1990 Page I-01505

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Opinion of the Advocate-General

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Mr Advocate General Mischo delivered his Opinion on 11 January 1990 . (*) He proposed that the Court should give the following two answers to the questions referred by the Finanzgericht Muenchen :

( 1 ) Heading 71.16 of the Common Customs Tariff must be interpreted as having included, even before the adoption of Commission Regulation No 3558/81 of 8 December 1981, shanks for earrings of the kind designated in that regulation .

( 2 ) Subheading 84.59 E II must be interpreted as including the guns designed to pierce the ear-lobe and insert the object referred to in the answer to the first question .

(*) Original language : French .
61988C0288

Opinion of Mr Advocate General Van Gerven delivered on 15 May 1990. - Commission of the European Communities v Federal Republic of Germany. - Failure of a Member State to fulfil its obligations - Directive on the conservation of wild birds. - Case C-288/88.



European Court reports 1990 Page I-02721

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6.

I shall begin by considering the Commission's alternative claim first. The Italian Government does not deny that it failed to notify any measures implementing Directive 85/411 to the Commission. However, it considers that Italy was under no obligation to adopt, and consequently to notify, any implementing measures so long as the Commission did not first indicate the bird species added to Annex I of Directive 79/409 which occur in Italian territory and whose habitats must therefore be the subject of special conservation measures. That contention cannot be upheld. Like many other directives, Article 2 of Directive 85/411 imposes on the Member States a duty of notification. The Court has already had occasion to point out that the information which the Member States are required to supply to the Commission on the basis of a duty of notification of that kind, having regard also to Article 5 of the EEC Treaty, must be clear and precise. In the absence of such information the Commission is not in a position to ascertain whether a Member State has effectively and completely implemented the directive. In a judgment of 25 May 1982 in Case 96/81 the Court stated as follows: ‘The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 169 of the EEC Treaty in order to establish the failure to fulfil the obligation’. ( 4 ) That duty of notification also implies, in my view, that the Member State is under an obligation to inform the Commission that it does not consider itself obliged to adopt any specific measures for the implementation of the directive, and the reasons why. Without such information, the Commission is unable to ascertain whether the directive has in fact been implemented precisely. In this case, it means that the Member State concerned is required to identify the bird species added to the annex by Directive 85/411 which occur in its territory, and then inform the Commission of the measures it has taken with regard to the bird species newly covered by Directive 85/411, in accordance with the obligation to protect habitats under Article 4 of Directive 79/409, either by amending existing measures or by adopting new measures. Since, as stated earlier, Italy has not provided any information whatsoever three years after the expiry of the period for implementation, it is quite clear that it has failed to discharge its duty of notification.
61990C0167

Opinion of Mr Advocate General Tesauro delivered on 23 April 1991. - Commission of the European Communities v Kingdom of Belgium. - Failure to implement a directive - Mutual recognition of diplomas and coordination in the field of pharmacy. - Case C-167/90.



European Court reports 1991 Page I-02535

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9.

As far as the right of establishment and the free movement of workers is concerned, it does not seem to me that any distinction can be drawn between the Law of 29 April 1983 and the national legislation at issue in Case 96/85 Commission v France. Leaving aside the freedom to provide services, which is in principle protected by the Luxembourg legislation, both sets of provisions appear to discriminate against practitioners from other Member States in closely similar ways. Thus, in each case, derogations from the single practice rule are available exclusively in respect of a second practice in the regulating Member State. As the Court observed in paragraph 12 of its judgment in Case 96/85 Commission v France: ‘... the principle that a practitioner may have only one practice, put forward by the French Government as indispensable to the continuity of medical care, is applied more strictly with regard to practitioners from other Member States than practitioners established in France. Although, according to the documents before the Court and the information provided by the parties, the Councils of the ordre des médecins authorize doctors established in France to open a second practice only at a short distance from their main practice, doctors established in another Member State, even close to the frontier, are never permitted to open a second practice in France.’ In the same way, as we have seen, Article 16 of the Law of 29 April 1983 permits the Minister of Health, in certain circumstances, to authorize a doctor or a dentist to have a second surgery in Luxembourg, but does not appear to permit the same authorization to be given where the first surgery is in another Member State. Although the Luxembourg Government indicates in its defence that the derogation can be extended to surgeries in other Member States by Ministerial decision in individual cases, it does not seem to me that such ad hoc authorizations are sufficient to place the two categories of practitioner on an equal footing. A practitioner from another Member State would certainly not be made aware of such a possibility by reading the text of Article 16, which refers exclusively to practitioners established in Luxembourg. It is to be noted that the creation of such a state of uncertainty, in which national law does not adequately reflect the right to equal treatment accorded by Community law, is itself contrary to the Treaty: see Case 167/73 Commission v France [1974] ECR359, at paragraph 41 of the judgment. Furthermore, it will in any case be recalled that in Case 96/85 Commission v France, cited above in paragraph 6, the Court condemned the general rule prohibiting practitioners established in another Member State from establishing a second practice in France, even in the absence of any discrimination in favour of practitioners already established in France.
4.

I would start by saying that Regulation No 1626/85 does not specify what is to be understood by syrup or by Morello cherries in syrup and that it is therefore necessary to that end to consider the more general legislative context of which the regulation at issue forms a part. I would observe in that connection that heading 20.06 of the CCT, ( 2 ) to which Regulation No 1626/85 refers, covers fruit, whether or not containing added sugar, and that it appears from Additional Note 3 to Chapter 20 of the CCT that products classified under heading 20.06 are to be considered as ‘containing added sugar’ when the sugar content thereof exceeds by weight 13% in the case of pineapples and grapes and 9% in the case of other fruit. Moreover, according to the explanatorynotes of the Customs Cooperation Council, heading 20.06 also covers fruit in syrup. ( 3 ) Furthermore and also according to the explanatory notes of the Customs Cooperation Council on heading 17.02 (other sugars in solid form; sugar syrups not containing added flavouring or colouring matter ...), the term ‘syrups’ covers ‘syrups of all sugars (... and aqueous solutions other than aqueous solutions of chemically pure sugars of heading 29.43) provided they do not contain added flavouring or colouring matter’ and there is nothing to authorize the exclusion from that definition of syrups obtained using the sugars contained in Morello cherries. Next, the definitions given of ‘cherries in syrup’ and ‘sugar syrup’ in Article 1(2) of Commission Regulation (EEC) No 1599/84 of 5 June 1984 laying down detailed rules for the application of the system of production aid for products processed from fruit and vegetables ( 4 ) are equally significant. According to that provision, ‘cherries in syrup’ means ‘cherries, pitted or not, having undergone a heat treatment, packed in hermetically sealed containers with a covering liquid of sugar syrup and falling within subheading 20.06 BII a) 8 or 20.06 B II b) 8 of the Common Customs Tariff’, whilst ‘sugar syrup’ means ‘a liquid in which water is combined with sugars and has a total sugar content determined after homogenization of not less than: 9% in respect of cherries in syrup’. In the light of the legislative context described above, I consider therefore that Morello cherries in a liquid obtained by heating them in water which has a sugar content in excess of 9% must be regarded as being Morello cherries in syrup also for the purposes of Regulation No 1626/85, irrespective as to whether additional sugars have been added.