ddrg/super_eurlex huggingface dataset:
4.

The Fund clearly stated, both in its written observations and its oral submissions, that it was hoping for a departure from the Laterza decision, although it is aware that that decision follows directly from those in earlier cases ( 4 ) and that the Court has recently confirmed it. ( 5 ) To that end, the Fund maintains that Article 77 (2) (b) (i) can be construed only within the limits of the powers conferred on the Council by Article 51 of the EEC Treaty, that is to say, for the purpose of pursuing the two specific aims provided for therein, namely: (a) aggregation of insurance periods, and (b) the “exporting” of benefits from one country to another within the Community. In the Fund's view, that question concerning the Council's powers, to which the whole issue can be reduced, has never been clearly put to the Court and, in any event, has never been expressly answered by the Court. More specifically, in the Fund's view, the Court has never declared: “whether — and, if so, to what extent — Article 51 of the Treaty empowers the Council of Ministers to adopt a regulation which has the effect of obliging the authorities of a Member State, contrary to the express provisions of the relevant national law ( 6 ), to pay family allowances in respect of children who are not resident in the territory of that State, where not only does no entitlement exist in the State in which they are resident ... but also such an entitlement” is recognized by the latter State. Accordingly, the Fund considers that the relevant provision of Article 77 ought to be interpreted: — either “in accordance with the natural meaning of its wording”, that is to say contrary to the Court's judgment in Laterza, as establishing a private international law rule of renvoi within the Community legal order enabling the national legislation applicable to family allowances to be determined: entitlement to benefits from a Member State other than the State of residence exists, having regard to the requirement imposed on the Council by Article 51 (b) of the Treaty, only where the legislation of the State of residence does not confer such an entitlement; or — as the Court interpreted it in Laterza, which would render Article 77 invalid in the light of Article 51 of the Treaty. Article 51 neither requires nor appears to authorize the Council — which is empowered to designate the applicable legislation — to combine the legislation of two States so as to secure for the migrant worker and his dependants entitlement to the “difference” at issue. On the basis solely of the provisions of Article 77, the Government of the Federal Republic of Germany, which has submitted observations, takes the view, in common with the Fund, that “having regard to Community law, no entitlement to Belgian family allowances exists in this instance.”
5.

It is therefore for the Commission, since it asks the Court to apply the provisions of Article 30 to a national measure applicable to goods without distinction, to show that it entails a specific trade restriction. As it is, no such proof has been adduced. To support its action the Commission essentially relies on the Court's judgment in the Irish Souvenirs case, two cases brought against France for infringement of the Treaty which have since been removed from the Court Register because that State has complied with the Commission's reasoned opinion, and finally on two letters, one from a United Kingdom retailer of domestic electrical appliances and the other from the Groupement des industries françaises des appareils d'équipement menager [French Domestic Appliance Manufacturers' Association]. In my view, the reference to the Irish Souvenirs case does not appear relevant in this regard. That case concerned a measure that was discriminatory because it imposed an origin-marking requirement on imported products only by requiring them to bear the word ‘foreign’. Moreover, in that judgment, the Court expressly left aside ‘the point argued by the Commission’ which had maintained ‘that it would not be enough to require a statement of origin to be affixed to domestic products as well’ ( 11 ) for the rules in question to satisfy the requirements of Article 30. For the same reason it seems to me that no useful guidance may be obtained from the two ‘French cases’, which also concerned imported products only. As far as the letters produced by the Commission are concerned, the following observations must be made: they concern the products of only one of the four sectors referred to by the Order (domestic electrical appliances) imported from only one Member State, France. Furthermore, the letter from the Groupement des industries françaises des appareils d'équipement menager, concerning the effects of the Order, contains only assertions which are not supported by any facts demonstrating the existence of the ‘pressure’ exerted by the United Kingdom distributors or of the changes imposed on ‘all the manufacturers’. The second letter, which the Commission produced at the Court's express request, is even less significant in so far as it came from a single retailer. The facts meant to persuade the Court really have little substance. Let me be clear. I am not saying that the Order has not had, or might not have, any impeding effect. I am simply saying that, as things stand at the moment, the Commission has by no means proved its allegation that the Order has an impact on trade or a fortiori that it has a restrictive effect. For that reason I believe that the Commission's application must be dismissed. Should the Court not share my view, it will need to consider the United Kingdom's alternative submission.
4.

Contrary to the plaintiff's view, I think, as does the Commission and, it would seem, the court making the reference, that separate importation of sails specifically intended for sailboards falls under tariff subheading 62.04 B I (a). However, the court making the reference expressed doubts as to whether it was possible to interpret the concept of ‘sails’ broadly because of the apparently restrictive nature of the concept of ‘boat’ contained in Chapter 89 of the Common Customs Tariff (ships, boats and floating structures). In that connection, it is sufficient to note that heading 62.04 refers not to the boats themselves but to the sails (‘voiles d'embarcation’). The problem would only arise therefore in regard to the tariff classification of complete sailboards. Even if it is true that, as component parts of a sailboard, the sails which are intended for use with them are of such a nature as to make it possible, in accordance with the aforementioned Note 4 to Chapter 97, to classify them with the boards themselves, it must be pointed out that that is ‘subject’ to Note 1 (f) which expressly excludes from the scope of Chapter 96 ‘sails for boats or landcraft, falling within Chapter 62’. In short, it can be seen by simply reading Chapter 97 that only sails imported with their board can be classified under subheading 97.06 C. Where, on the other hand, sails are imported separately, the heading to be applied is 62.04, in respect of which an explanatory note published by the Customs Cooperation Council states that it covers‘sails (for sailing-boats, yachts, fishingsmacks, sports boats, etc.) ...’ as well as ‘sails of similar types for land-craft (e.g. sand yachts and ice-yachts)...’. ( 1 ) It must therefore be pointed out that that list, far from being exhaustive, is merely declaratory. Moreover, it cannot be doubted that, whatever they may be attached to, the different types of sails perform the same function, are made of similar materials and are manufactured in a similar way. Consequently, it is hard to understand why sails for sailboards, when they are delivered separately, should have a different tariff applied to them than would be applied to sails for boards with wheels or which are intended to be used on ice.
1.

In Italy, as in every other country with an extensive railway network, different categories of passenger trains exist: there are long distance trains called ‘rapidi’, which link the major cities, and ‘espressi’, ‘diretti’ and ‘locali’ which also stop in the smaller towns or even at all stations. On the basis of legislation going back to 1934, the Ferrovie dello Stato may make access to any train subject to special conditions in order to provide a service rationally and objectively adapted to the many different requirements of transport users. On Train No 991, a Rome-Palermo ‘rapido’, second-class passengers boarding in Rome must hold a ticket for a journey in excess of 400 kilometres. On 17 January 1984 Paolo Iorio, an Italian national, boarded that train but, as he held a ticket for a journey below the required distance, he was fined by the ticket inspector. The Azienda autonoma delle ferrovie dello Stato then ordered him to pay a fine of LIT 44650 under Article 84 of the Presidential Decree No 753 of 11 July 1980. Mr Iorio brought an action before the Vice Pretore [Deputy Magistrate] of Latina claiming that the conditions limiting access to the train on the basis of the length of the journey were contrary to the principle of the free movement of persons laid down in Article 48 of the EEC Treaty. By order of 3 December 1984, the Vice Pretore stayed proceedings and referred the following questions to the Court of Justice for a preliminary ruling: (1) Are the provisions of Decree No 753/80 of the President of the Republic and Article 3 (2) of the Conditions and Tariffs of the State Railways contrary to Article 48 (3) (b) of the Treaty of Rome? (2) Does the principle of freedom of movement contained in the aforesaid article of the EEC Treaty also apply within each Member State of the European Community? (3) Does that principle preclude the administrative authority, in this instance the Minister for Transport or the Regional Manager of the State Railways, from restricting the freedom of movement of workers within the country by creating train services admitting only passengers with a ticket for a journey of more than a certain minimum number of kilometres? (4) Is the situation under consideration contrary to any other provision of the Treaties establishing the European Communities or to regulations or other acts having the force of law within the Italian Republic?
2.

Let us therefore examine the applications lodged by Mr Hoyer and Mr Neumann whose cases were joined by an order of the Court of 9 April 1986 in view of the connection between them. The Notice of Competition contained the following provisions: ‘IV — Eligibility: To be admitted to the competition, candidates must: ... 3. ... possess a thorough knowledge of one official language of the European Communities and satisfactory knowledge of a second official Community language. Knowledge of a third language would be appreciated. In view of the nature of the duties, knowledge of French is required. The Selection Board will study the candidates' files and draw up a list of applicants who meet these requirements, and who will therefore be admitted to the tests. V — Competition The competition will be held on the basis of qualifications and tests: ... B — Tests 1. Nature of the tests: ... (c) oral test to assess the candidates' knowledge of languages as indicated under paragraph IV (3) above.’ In their application forms Mr Hoyer and Mr Neumann entered the following comments regarding their knowledge of French: reading: good writing: fair speaking: fair On that basis and in the light of its interpretation of the abovementioned notice the Selection Board refused to admit the applicants to the test. It took the view that: In the first place, the nature of the vacant post and the interests of the service made it necessary for the candidates' knowledge of French to be at least ‘good’ as regards ‘reading’, ‘writing’ and ‘speaking’, the headings contained in the application form; Secondly, the provisions of paragraph IV of the Notice of Competition required it at the admission stage to select from the candidates those whose stated knowledge — subject to subsequent verification by means of the oral test provided for — could meet the required level. Such an approach was justified in view of the fact that it is in no candidate's interest ‘to indicate a level of knowledge lower than his actual level’ (report of the Selection Board to the Appointing Authority dated 28 October 1985). The decision refusing to admit them to the tests was notified to Mr Hoyer and Mr Neumann by the Chairman of the Selection Board on 2 August 1985. The two candidates were invited to submit their comments. This they did, stating the grounds on which they contested the measure adopted in relation to them. By letters addressed to them dated 28 October 1985 the Selection Board maintained its position. On 30 October 1985 the Appointing Authority informed all of the candidates in the competition that it did not wish to publish a ‘blank’ list of suitable candidates and that, consequently, the procedure was suspended pending any actions that might be brought.
Opinion of Mr Advocate General Vilaça delivered on 21 October 1987. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Dangerous substances. - Case 429/85.



European Court reports 1988 Page 00843



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . My opinion in this case is straightforward and can only be favourable to the Commission' s argument, the substance of which is, moreover, not challenged by the Italian Republic .

2 . It is sufficient to refer to the judgment of 14 October 1987 in Case 278/75 in which a similar complaint made against the Kingdom of Denmark was held to be well founded .

3 . The fact that the Italian Republic' s administrative practice in applying the contested national legislation complies with the requirements of Directive 79/831, on which the Italian Republic relies, does not, as the Court has consistently held, remedy the breach of obligations arising from the maintenance in force of a provision contrary to Community law .

4 . The Italian Government has not yet adopted the legislation which it has announced and which will transpose fully and properly that part of the directive into national law .

5 . I therefore propose that the Court should declare that by extending to importers the exemption from the obligation to give notice laid down in Article 6 of Council Directive 79/831/EEC of 18 September 1979 amending for the sixth time Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, the Italian Republic has failed to fulfil its obligations under the first indent of Article 8 ( 1 ) of the directive in question . The Italian Republic should consequently be ordered to pay the costs .

(*) Translated from the Portuguese .

Ad/de/Ly
Opinion of Mr Advocate General Mischo delivered on 19 April 1988. - G. Seguela and A. Lachkar and others v Administration des impôts. - References for a preliminary ruling: Tribunal de grande instance de Saint-Brieuc et Tribunal de grande instance de Nancy - France. - Article 95 - Differential tax on motor vehicles. - Joined cases 76, 86 to 89 and 149/87.



European Court reports 1988 Page 02397



Opinion of the Advocate-General

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Mr President,

Members of the Court,

The questions submitted by the tribunal de grande instance, Nancy, which are the subject of Cases 86 to 89/87 and 149/87, are practically identical to the question referred by the tribunal de grande instance, Mulhouse, in the proceedings between Mr Feldain and the French administration des impôts which were the subject of the judgment of the Court of 17 September 1987 ( Case 433/85 (( 1987 )) ECR 3521 ).

As for the question submitted by the tribunal de grande instance, Saint-Brieuc, which is the subject of Case 76/87 Seguela, it differs from the question referred in the Feldain case in that there is no express reference to the formula which determines the power-rating of cars for tax purposes . The national court, however, indicates in its order that its question is identical to the question in the Feldain case and we are thus entitled to conclude that exactly the same problem is in issue .

As for the substance, examination of the cases has not revealed any feature which was not present in the Feldain case .

Under those circumstances I can confine myself to referring to the grounds of the abovementioned judgment of the Court and to the opinion which I delivered in that case on 16 June 1987 .

Consequently, I propose that the Court should give the same answer as in the judgment of 17 September 1987, that is to say that a system of road tax in which one tax band comprises more power-ratings for tax purposes than the others, with the result that the normal progression of the tax is restricted in such a way as to afford an advantage to top-of-the-range cars of domestic manufacture, and in which the power-rating for tax purposes is calculated in a manner which places vehicles imported from other Member States at a disadvantage has a discriminatory or protective effect within the meaning of Article 95 of the Treaty .

As regards costs, the normal practice in references for a preliminary ruling should apply .

(*) Translated from the French .
Opinion of Mr Advocate General Van Gerven delivered on 14 February 1989. - M. Turner v Commission of the European Communities. - Official - Staff report - Objection of inadmissibility. - Case 192/88.



European Court reports 1989 Page 01017

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Opinion of the Advocate-General

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Mr Advocate General Van Gerven delivered his Opinion on 14 February 1989 . (*) He proposed that the Court should :

( 1 ) dismiss the first head of claim as inadmissible;

( 2)declare that there was no need to give a decision on the second head of claim;

( 3)order the Commission to bear its own costs and one-quarter of the applicant' s costs .

(*) Original language : Dutch .
Opinion of Mr Advocate General Darmon delivered on 11 October 1989. - Gebrüder Gausepohl v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Agriculture - Special export refunds for certain meat of bovine animals. - Case C-101/88.



European Court reports 1990 Page I-00023

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Opinion of the Advocate-General

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Mr Advocate General Darmon delivered his Opinion on 11 October 1989 . (*) He proposed that the Court should declare that :

"The first paragraph of Article 6 of Commission Regulation ( EEC ) No 1964/82 of 20 July 1982 must be interpreted as meaning that the grant of the special refund is subject to the exportation of the total quantity of pieces of hindquarters placed under supervision; however, in the event that a single fillet of meat, representing an insignificant proportion of the total quantity thus defined, is missing, where there is objectively no question of bad faith on the part of the exporter, the exporter may, exceptionally, be granted the special refund for the hindquarters actually exported ."

(*) Original language : French .
13.

The Council draws attention to a number of factors, not all of them decisive in themselves but which in my view weaken the applicant's claim that calcium metal produced in the Community and calcium metal produced in China and the Soviet Union cannot be considered like products. First, although the applicant maintains that calcium metal supplied by Péchiney only meets its requirements if it is subjected to further treatment, it does not deny that it is technically possible for it to use calcium metal supplied by Péchiney. Secondly, the Soviet exporter also claimed during the course of the investigation that its product was not a like product to Péchiney's, but on the ground that Soviet-produced calcium metal was poorer in quality. Thirdly, no end user of calcium metal has intervened at any stage of the proceedings to contest the Commission's findings. Fourthly, and perhaps decisively, the applicant's claim that it only turned to suppliers in China and the Soviet Union after Péchiney had proved unwilling to supply it, and that Péchiney is thereby guilty of an abuse of a dominant position within the meaning of Article 86 of the Treaty, implies that Péchiney's product would have been adequate for its purposes, had the applicant been able to obtain it. If the alleged inferior quality of Péchiney's product made it unsuitable for the uses to which the applicant wished to put it, it is difficult to see why the applicant should have gone to such lengths to obtain supplies from that source. Indeed, in its application to the Conseil de la Concurrence, which is annexed to its application in the present case, the applicant claims that Péchiney would have had no difficulty in supplying it with calcium metal in the quantity and quality required. Moreover, the applicant acknowledged at the hearing that it could use calcium produced by Péchiney for some purposes.
Opinion of Mr Advocate General Gulmann delivered on 28 November 1991. - Commission of the European Communities v Kingdom of Belgium. - Failure of a Member State to fulfil its obligations - EEC directive - Failure to transpose within the prescribed period. - Case C-377/90.



European Court reports 1992 Page I-01229



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Council Directive of 9 November 1987 (1) on access to the occupation of carrier of goods by motorway in national and international transport and in the mutual recognition of diplomas, certificates and other evidence of formal qualifications for this occupation was, according to Article 11(1) thereof, to be implemented by the Member States by 30 June 1988. Article 11(2) further provides that the Member States are to forward to the Commission the texts of the main provisions of national law which they adopt in the fields governed by the directive.

2. By application dated 21 December 1990 the Commission brought an action for a declaration that, by failing to forward to the Commission, in accordance with Article 11(2) of the directive, the texts of the main provisions of national law which it has adopted in the fields governed by the directive, the Kingdom of Belgium has failed to fulfil its obligations under Articles 5 and 189 of the EEC Treaty.

The Belgian Government has not denied in this case that it has failed to fulfil the requirement, laid down in Article 11(2) of the directive, to give information to the Commission. The defendant kingdom has explained the failure to forward provisions of national law to the Commission by reference to the fact that national provisions for the transposition of the directive into national law have not yet been adopted.

3. I can therefore only propose to the Court that judgment be given in the terms sought by the Commission and that the Kingdom of Belgium be ordered to pay the costs.

(*) Original language: Danish.

(1) - Directive 87/540/EEC, OJ 1987 L 322, p. 20.