ddrg/super_eurlex huggingface dataset:
25.

Article 15 of the draft Belgian Judicial Code ( 12 ) defines a ‘demande reconventionnelle’ (counterclaim) as ‘... an incidental claim made by the defendant which seeks a decision against the plaintiff’. ( 13 ) The draftsman explains that provision more specifically as follows: ‘This definition is aligned with the approach which the French Court of Cassation proposed to the Government in its 1806 draft Code of Civil Procedure: that of a contre-prétention (counterclaim) ( 14 ) which is admissible in every case where such a claim is not barred by law. In addition, it accords with academic writings and the case-law, which, in the absence of a definition of a demande reconventionnelle (counterclaim) in the Code itself, has identified its basic constituents in a manner which may be summarized as follows: (1) a counterclaim is incidental, that is to say, it is introduced into pending proceedings even though it could have given rise to separate main proceedings; (2) it goes beyond seeking to have the plaintiff's case dismissed and costs awarded against him: the defendant, acting as plaintiff in his turn, seeks a riding against the defendant. Thus, in a judgment of 4 November 1949, the Court of Cassation recognized as being a counterclaim and not merely a ground of defence a head of claim seeking “compensation for damage independent of the performance on which the plaintiff's action was based”. Such a claim must doubtless be made during the main proceedings, which makes sense and implies that the parties should be the same. But its course and its outcome are independent of the main claim; if the principal plaintiff withdraws, this does not terminate the counterclaim.’ ( 15 )
((Principle of the liability of a Member State for loss or damage caused to individuals owing to infringements of Community law attributable to it – Infringements attributable to the legislature – Conditions for liability on the part of the State – Quantum of damages))
2.

In the period from 1991 to January 1992 Uelzena Milchwerke (‘Uelzena’) supplied concentrated butter under a number of contracts to Firma Willi Antpöhler GmbH&Co. KG (‘Antpöhler’). Under Commission Regulation (EEC) No 570/88 of 16 February 1988 on the sale of butter at reduced prices and the grant of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs, ( 1 )as amended by Commission Regulations (EEC) No 949/88 of 8 April 1988, ( 2 ) No 2951/88 of 26 September 1988, ( 3 ) No 352/89 of 13 February 1989, ( 4 ) No 1048/89 of 21 April 1989, ( 5 ) No 1157/91 of 3 May 1991, ( 6 ) and No 2675/91 of 9 September 1991 ( 7 ) (hereinafter, the ‘butter aid regulation’), Uelzena had received aid for that concentrated butter. Antpöhler processed part of the concentrated butter into deep-frozen, oven-ready sticks of short pastry made with butter, in the form of biscuits, which had an average flour content of 46% and were intended for baking only when they reached the consumer. The German customs authorities found that the processing of the concentrated butter carried out by Antpöhler did not give rise to entitlement to aid, since it took the view that ‘sticks of short pastry made with butter’ could not be regarded as ‘bakers’ wares, as declared by Antpöhler, and thus covered by the Common Customs tariff combined nomenclature Code 190530 referred to in Article 4(1), Formula A(a), of the butter aid regulation. The customs authorities considered that the product was uncooked dough as referred to in Article 4(3), Formula C(a)(i), of the butter aid regulation, which did not qualify for aid, because the dough's flour content was under the 51% required under the regulation. Accordingly the German intervention agency, the Bundesanstalt für landwirtschaftliche Marktordnung, decided that an amount of over DM 330000 which Uelzena had lodged as security was forfeited, whereupon Uelzena repaid the aid which it had received. Uelzena then brought an action against Antpöhler seeking compensation for the loss caused by the repayment. Uelzena claimed that in processing the concentrated butter into sticks of short pastry made with butter, as described above, Antpöhler had acted in breach of contract and was liable to pay damages.
9.

The first of the three questions raises afresh the question whether Articles 30 of the EEC Treaty and 14 of Directive 79/112/EEC prohibit provisions similar to Article 11 of the Belgian Royal Decree at issue. The Hof van Beroep, Brussels, considers on that point that the judgment of 18 June 1991 does not answer precisely the question submitted by the first instance court, since it rules that Articles 30 of the Treaty and 14 of the Directive prohibit national provisions which require the exclusive use of a language but does not, however, explain whether those articles should be interpreted as meaning that they also prohibit national provisions, such as that at issue in this case, which require use of the language of a region but do not exclude the use of other languages. In other words, it is asked whether in substance, in the case in question, within the meaning of the above provisions, the national legislature may lay down the obligatory, but not exclusive, use in the labelling of products of the official language of the region where the products are marketed when consumers in that region easily understand another or other language(s). As the grounds of the judgment referring questions to the Court show, the second question seeks a definition of the term ‘a language easily understood’ by the purchaser. The third question seeks elucidation as to the criteria to be taken into account by the national court in a specific case in order to ascertain the meaning of the term ‘other measures ... taken to ensure that the purchaser is informed’ which, under Article 14 of the Directive, are to inform purchasers as effectively as the labelling in a language easily understood by them.
18.

It is true that all cars have similar characteristics and meet the same needs in the sense that they all have an engine and wheels and provide motorised transport for one or more persons. However, as Advocate General Mischo noted in Commission ν Greece, ( 12 ) it cannot seriously be argued that, for example, a small car with an engine of less than 1000 cc would be regarded by consumers as a substitute for a top-of-the-range saloon car with an engine of 2500 cc or more. In practice there is a continuum of competitive relationships. The degree of competition between two models depends on the extent to which they meet various requirements regarding price, style, size, comfort, performance, fuel consumption, durability, reliability and other matters. Requirements of consumers differ, and power rating is certainly not the sole factor in determining the degree of competition between two cars. It is nevertheless a very important factor since engine size and power are often closely linked to other factors such as size, comfort, performance and price. For example, large comfortable saloon or estate cars generally have larger engines with higher power ratings than small cars designed primarily for town driving. On the whole, therefore, there is likely to be a closer competitive relationship between vehicles in neighbouring tax bands. In considering the national court's question it is therefore necessary to look closely at the structure of the tax in the higher bands where the supposed break in progression occurs.
5.

The second sentence of Article 18(1) was implemented by Council Regulation (EEC) No 521/77 laying down detailed rules for applying protective measures in the market in products processed from fruit and vegetables (‘the implementing Regulation’). ( 2 ) The implementing Regulation was originally adopted to implement the identically worded Article 14 in Council Regulation (EEC) No 516/77. ( 3 ) When that regulation was replaced by the basic Regulation, the same implementing Regulation was maintained. The provisions relevant to the present case are found in Articles 1 and 2 of the implementing Regulation which read as follows: ‘Article 1 In order to assess whether the Community market in one or more of the products listed in Article 1 of Regulation (EEC) No 516/77 is, by reason of imports or exports, experiencing or threatened with serious disturbances which might endanger the objectives set out in Article 39 of the Treaty, particular account shall be taken of: (a) the volume of imports or exports effected or foreseen; (b) the quantities of products available on the Community market; (c) the prices for Community products on the Community market or the foreseeable trend of these prices and in particular any excessive upward or downward trend thereof in relation to prices in the years immediately preceding; (d) where the abovementioned situation arises as a result of imports, the prices obtaining on the Community market, at a comparable stage, for products from third countries, and in particular any excessive downward trend in these prices. Article 2 1. Should the situation referred to in Article 14(1) of Regulation (EEC) No 516/77 arise, the measures which may be taken under paragraphs 2 and 3 of that Article shall be: (a) for products subject to the system of import certificates: — the total or partial discontinuation of the issue of certificates, as a result of which new applications will not be accepted, — the rejection of all or some of the applications for the issue of certificates which are being examined; (b) ... (c) for all products: — the introduction of arrangements under which, if the price for an imported product falls below a certain minimum, a condition may be imposed whereby that product may be imported only at a price which is at least equal to such minimum, — ... 2. The measures referred to in paragraph 1 may be taken only to such extent and for such length of time as is strictly necessary. They shall take account of the special situation of products which are already on their way to the Community. They may not extend to products other than those imported from or intended for third countries. They may be restricted to products imported from or originating in particular countries, to exports to particular countries or to particular qualities or types of presentation. They may be restricted to imports intended for particular regions of the Community or to exports from such regions. ...’
25.

I accept that, in order to achieve the aim of discouraging imports in excess of the quota, the additional amount may be fixed at a level which exceeds the difference in costs between the Community product and the imported product. That may be necessary to discourage excessive imports. However the additional amount must not be fixed at a level significantly higher than is necessary for that purpose. If it is, then it will penalize importers who, for whatever reason, inadvertently exceed the quota. As the earlier cases and the present case show, importers may be in error as to the quantities which are still available, or they may erroneously believe that there is still room for imports under the import licences which they have obtained. It is common ground that it is not practicable to make special provision for the case of such inadvertent importations: they will necessarily be subject to the additional amount. Indeed, if the additional amount is set at a very high level, they are likely to be the only importations subject to the additional amount. If the additional amount is set at too high a level, it will constitute in such cases an impermissible penalty. The additional amount will be the same, therefore, in all cases: whether an importer inadvertently exceeds the quota; whether he chooses to exceed the quota and to pay the additional amount; or even if he seeks to evade payment. In the last case, of course, he may face criminal penalties; but in no case can the additional amount be regarded as a penalty or set at a level at which it has that effect.
60.

Contrary to the Bundesamt's view, I do not think it can be concluded that the national court's question has no relevance to the proceedings before the Finanzgericht. The Court has consistently held that a request from a national court may be rejected only if it is obvious that the request bears no relation to the actual facts of the case or subject-matter of the main action. ( 15 ) The order for reference indicates that, following the amendment by the Bundesamt of its decision during the proceedings, Denkavit limited its action to the period prior to 15 July 1993 and altered its claim so as to seek a declaration from the Finanzgericht that the Bundesamt's decision was wrong in law. Its declared purpose in seeking such a declaration was to provide the basis for a claim for damages in separate proceedings before other German courts. Questioned by the Court at the hearing Denkavit explained that under the relevant German procedural rules it could obtain such a declaration from the Finanzgericht only if it had a legitimate interest in doing so; the Finanzgericht's third question was to be seen in that light. Thus, although Denkavit does not seek damages in the proceedings before the Finanzgericht, it cannot be concluded that the latter's question has no relevance to the facts of the case or the subject-matter of the main proceedings. I would add that it is not for the Court to inquire whether, under the German rules governing the procedure and organization of courts, Denkavit was entitled to amend its claim so as to seek the declaration in question in the proceedings before the Finanzgericht. ( 16 )
((Failure of a Member State to fulfil its obligations – Directive 90/385/EEC – Failure to transpose the directive within the prescribed period))
1.

By application lodged on 4 October 1995, the Commission seeks a declaration by the Court that, by failing within the prescribed period to adopt the measures necessary in order to comply with Council Directives 90/219/EEC of 23 April 1990 on the contained use of genetically modified microorganisms ( 1 ) and 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, ( 2 ) the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EC Treaty.
Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 20 March 1997. - Commission of the European Communities v Kingdom of Belgium. - Failure by a Member State to fulfil its obligations - Directive 94/15/EC - Failure to transpose within the prescribed period. - Case C-357/96.



European Court reports 1997 Page I-02963



Opinion of the Advocate-General

1 By this application pursuant to Article 169 of the EC Treaty, the Commission seeks a declaration by the Court of Justice that, by failing to adopt the laws, regulations and administrative measures necessary in order to comply with Commission Directive 94/15/EC of 15 April 1994 adapting to technical progress for the first time Council Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms, (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive,

2 In the course of the pre-litigation procedure the Commission addressed to the Belgian Government a letter before action (9 August 1994) and a reasoned opinion (4 March 1996), requiring it to adopt the measures necessary to comply with the directive. Since neither of those communications elicited a reply from the Belgian Government, the Commission brought this action before the Court of Justice on 30 October 1996.

3 In its observations submitted to the Court, the Belgian Government does not deny the alleged failure to fulfil its obligations, acknowledging that it has not transposed the directive into national law within the period prescribed by Article 2 thereof and which expired on 30 June 1994. It claims, however, that it proposes to adopt the necessary implementing measures as soon as possible.

4 Since it is manifestly clear that, as alleged by the Commission, the Kingdom of Belgium has failed to fulfil its obligations, the application should be upheld.

5 In accordance with Article 69(2) of the Rules of Procedure the defendant should be ordered to pay the costs, which have been applied for by the applicant.

Conclusion

6 I therefore propose that the Court should uphold the Commission's application as follows:

(1) declare that, by failing to adopt within the prescribed period the laws, regulations and administrative measures necessary in order to comply with Commission Directive 94/15/EC of 15 April 1994 adapting to technical progress for the first time Council Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms, the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty;

(2) order the Kingdom of Belgium to pay the costs.

(1) - OJ 1994 L 103, p. 20.
Opinion of Mr Advocate General Jacobs delivered on 16 January 1997. - Commission of the European Communities v Kingdom of Belgium. - Failure by a Member State to fulfil obligations - Directive 91/659/EEC - Failure to implement. - Case C-135/96.



European Court reports 1997 Page I-01061



Opinion of the Advocate-General

1 In these proceedings the Commission seeks a declaration, under Article 169 of the Treaty, that the Kingdom of Belgium has failed to comply with its obligations under the Treaty by not adopting within the prescribed period the measures necessary to implement Commission Directive 91/659/EEC of 3 December 1991 adapting to technical progress Annex I to Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (asbestos). (1)

2 Article 2 of the directive provides that:

`1. Member States shall adopt and publish the provisions necessary to comply with this Directive by 1 January 1993 and shall forthwith inform the Commission thereof. They shall apply these provisions as from 1 July 1993.

...

2. Member States shall communicate to the Commission no later than 18 months after the date of its adoption the text of the basic provisions of national law which they adopt in the field covered by this Directive.'

3 Belgium has not disputed its failure to implement the Directive. It states in the defence that the necessary measures are under way.

4 It follows that the Commission is entitled to the declaration which it seeks.

Conclusion

Accordingly I am of the opinion that the Court should:

(1) declare that, by failing to adopt within the prescribed period the provisions necessary to implement Commission Directive 91/659/EEC, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty;

(2) order the Kingdom of Belgium to pay the costs of these proceedings.

(1) - OJ 1991 L 363, p. 36.
Opinion of Mr Advocate General Jacobs delivered on 24 April 1997. - Commission of the European Communities v Hellenic Republic. - Failure to fulfil obligations - Failure to transpose Directive 92/43/EEC. - Case C-329/96.



European Court reports 1997 Page I-03749



Opinion of the Advocate-General

1 In this case the Commission seeks a declaration, under Article 169 of the EC Treaty, that Greece has failed to comply with its obligations under the Treaty by not adopting within the prescribed period and/or by not communicating to the Commission the measures necessary to implement Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. (1)

2 Directive 92/43 lays down a series of measures designed to maintain or restore natural habitats and species of wild fauna and flora of Community interest.

3 Article 23(1) of the Directive provides that:

`Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within two years of its notification. They shall forthwith inform the Commission thereof.'

4 Greece has not disputed its failure to implement the Directive but refers to certain technical difficulties. It is well established by the Court's case-law that a Member State cannot rely on such difficulties in proceedings of this kind.

5 It follows that the Commission is entitled to the declaration which it seeks.

Conclusion

6 Accordingly I am of the opinion that the Court should:

(1) declare that, by failing to adopt within the prescribed period the provisions necessary to implement Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, Greece has failed to fulfil its obligations under the Treaty;

(2) order Greece to pay the costs of these proceedings.

(1) - OJ 1992 L 206, p. 7.
12.

With regard to justifications based on possible failings at Community level, even if they were found to exist, such justifications would not preclude the adaptation of the internal legal order to the directive, given that the Belgian legislature has merely to ensure in future that the provisions adopted are incorporated, once the Commission or the Community bodies entrusted with the task have adopted the necessary implementing measures. As to the fact that the directive was amended in part by the 1993 directive, ( 9 ) in respect of which the periods for transposition granted to the Member States expire at a date later than that of the reasoned opinion, that fact is also entirely without relevance. In fact, the second directive simply gives rise to a new and additional obligation with regard to conformity on the part of its addressees, without however at the same time cancelling the corresponding obligations under the previous partially amended directive. The possibility that the Council may in the future make additional amendments to the directive, possibly on the basis of the Slim Report, ( 10 ) thus simplifying its application in practice, cannot justify failure to adapt the national legal order and with it the infringement of the directive itself and Article 189 of the Treaty. ( 11 ) It may, moreover, be observed in passing that the Belgian Government itself was alive to the need to comply with the directive in another manner, since, at least initially (by means of the draft bills notified in 1993), it chose to draw up a draft royal decree containing detailed substantive provisions transposing the directive no trace of which is to be found in the text of the law of 25 March 1996.