ddrg/super_eurlex huggingface dataset:
6.

The plaintiff in the main proceedings also considers that the German rules constitute a breach by the Federal Republic of Germany of the principle of the free movement of goods (Articles 30 and 34). In his view, the approval by the authorities of the insurance conditions constitutes the measure adopted by the Federal Republic of Germany. It is however doubtful whether the approval by Government authorities of private conditions of insurance can be regarded as equivalent to a governmental measure in this case. As the representative of the German Government stated in the oral procedure, there is no legal impediment to the granting, by German insurers, of a no-claims discount for motor vehicles bearing customs registration plates. In a special circular of 23 November 1977 the Verband der Haftpflichtversichcrer, Unfallversicherer, Autoversicherer und Rechtsschutzversicherer eV (Association of Liability, Accident, Motor Vehicle and Legal Protection Insurers), the “HUK-Verband”, expressly drew its members' attention to that possibility. This seems rather to be a case of a contractual proposal made by the insurer, governed by private law but eligible for approval, which the plaintiff in the main proceedings freely accepted. The question can however remain open, since as the Court has held, ( 4 ) Article 34 of the EEC Treaty applies only to those national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a special advantage for national products or for the domestic market of the State in question. It is difficult to accept that that can be said of the tariff provisions referred to by the plaintiff in the main proceedings. He has not attempted to show what interest the Federal Republic of Germany might have in hindering the export of motor vehicles. Furthermore, the measure in question would not be effective for that purpose, since the plaintiff in the main proceedings also had the possibility of exporting his vehicle otherwise than under its own power and with customs registration plates. He could have done so using another vehicle (for instance a transporter) or another type of registration plate (the red plate, which may be used only for the transfer of the vehicle and which includes appropriate insurance).
OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 14 May 1985

My Lords,

This case comes to the Court by way of a reference for a preliminary ruling under Article 177 of the EEC Treaty, dated 16 December 1983, by the Tribunal de grande instance, Briey, in criminal proceedings pending before the Tribunal.

In those proceedings Christian Gratiot, the managing director of a company operating a ‘Leclerc’ supermarket, is charged with infringing the French legislation fixing minimum prices for the retail sale of petrol, in particular Ministerial Decree No 82-13/A of 29 April 1982. Mr Gratiot pleaded by way of defence that the provisions of that decree were in conflict with the rules of Community law, and in order to resolve that question, the Tribunal referred the following questions to the Court for a preliminary ruling:

‘Are Articles 3 (f) and 5 of the (EEC Treaty) to be interpreted as prohibiting the layingdown in a Member State by law or regulation of binding minimum prices for the sale of “super” and “regular” petrol?

May the fixing of such minimum prices constitute a quantitative restriction on imports or a measure having equivalent effect within the meaning of Article 30 of the Treaty?’

The same national legislation was at issue in Case 231/83 Cullet v Centre Leclerc, in which the Court gave judgment on 29 January 1985. Apart from the fact that Cullet arose from civil proceedings for an order restraining breach of that legislation whereas the present case arises from criminal proceedings thereunder, the cases involve essentially the same issues of Community law. Although the questions referred by the national court in this case do not mention all the articles of the Treaty which were dealt with in the Cullet judgment, those questions are clearly intended to establish whether the national legislation in question accords with the principles and objectives of the EEC Treaty and with the particular provisions of the Treaty which implement them.

The observations submitted by the French Government, the defendant and the Commission add nothing of substance to the arguments put to the Court in the Cullet case. The Court's judgment in that case covered all the issues involved.

In my view, for the reasons given in the judgment of 29 January 1985 in Cullet, the answer to the questions referred by the Tribunal de grande instance, Briey, should be as follows :

‘(1) Articles 3 (f), 5, 85 and 86 of the EEC Treaty do not prohibit national rules providing for a minimum price to be fixed by the national authorities for the retail sale of fuel.

(2) Article 30 of the EEC Treaty prohibits such rules where the minimum price is fixed on the basis solely of the ex-refinery prices of the national refineries and where those ex-refinery prices are in turn linked to the ceiling price which is calculated on the basis solely of the cost prices of national refineries when the European fuel rates are more than 8% above or below those prices.’

The costs of the parties to the main proceedings fall to be dealt with by the national court. No order should be made as to the costs of the French Republic and of the Commission.
2.

Let us now turn our attention to the facts of the main proceedings. The adjustment made on 29 June 1973 to the central rate of the German mark brought about an increase in the monetary compensatory amounts. In a declaration of 3 July 1974 the German Government decided to avail itself of the provisions contained in Regulation No 1608/74 and, to that end, fixed a period of time within which applications were to be made. Such an application was made by Söhnlein Rheingold. That undertaking stated that on the basis of contracts concluded between November 1972 and March 1973, it had imported, between July and October 1973, a considerable quantity of table wine produced in France and Italy. It thus claimed that the increase in the monetary compensatory amounts brought about by the national monetary measure caused it to suffer an additional burden and since the conditions laid down in the Community regulation were satisfied it sought appropriate compensation for that loss. The Hauptzollamt [Principal Customs Office] Wiesbaden rejected that application. Contending that it had a discretion as to whether the conditions laid down in the regulation actually existed, the Hauptzollamt alleged that Rheingold had not taken all ‘necessary and normal care’ to avoid the loss in respect of which it was seeking compensation. That decision, confirmed by the Oberfinanzdirektion [Principal Revenue Office] Frankfurt, was challenged by Rheingold in proceedings before the Hessisches Finanzgericht. In the judicial proceedings the Hauptzollamt repeated the arguments which it had already used in rejecting the complaint and added that equitable relief could not in any case be granted because Rheingold had entered into the import contracts before 3 June 1973 and they were thus not contracts to which the Community rules applied. It was in relation to the arguments advanced by the Hauptzollamt that the German court considered it appropriate to refer the following questions to the Court of Justice: (1) Must Regulation (EEC) No 1608/74 be interpreted as meaning that the waiver or refund on equitable grounds of monetary compensatory amounts levied on imports may be considered only where the contracts in pursuance of which the imports were carried out were concluded after 3 June 1973? (2) Must Regulation (EEC) No 1608/74 be interpreted as meaning that, where the relevant conditions are satisfied, a right to the waiver or the refund of monetary compensatory amounts exists, or do the Member States have discretion as regards not only the decision concerning the application in principle of the regulation but also the decision as to the waiver or refund in individual cases?
6.

In the light of those considerations the a contrario argument derived from Article 17 of Regulation No 2730/79 seems to be irrelevant. It is not possible to override the purpose and the actual terms of the legislation governing MCAs by pleading the silence of that legislation on the supplies in question — in other words, by sheer formalism to infer meaning from the absence of any express provision equivalent to Article 17. Moreover, leaving aside their distinctive features (see Case 38/79 Nordmark, [1980] ECR 643, at paragraphs 7 to 9 of the Decision), it should be noted that MCAs and refunds share a common logic. As Mr Advocate General Capotorti observed in Nordmark, there is a ‘basic common feature’ shared by MCAs and refunds, namely that, by removing the obstacles due to price differences on the various markets, they ensure the free movement of agricultural products between Member States and between the Community and nonmember countries. Thus, for every product under consideration, those mechanisms are designed to compensate for the divergence between the market price in the exporting country and that in the country to which the product is actually exported — that is to say, the country in which it is marketed. The Court has confirmed that interpretation in the case of ‘accession’ MCAs (see Case 250/80 Töpfer [1981] ECR 2465, at paragraphs 14 to 16 of the Decision). It is a condition which is expressly attached to refunds by Article 10 of Regulation No 2730/79, under which the payment of the refund is subject not only to the condition that the product shall have left the geographical territory of the Community but also, where appropriate, to evidence that it was indeed placed on the market in the nonmember country of importation. In the same spirit Article 16 (2) of Regulation No 1371/81 specifies that the grant of MCAs is subject inter alia to proof ‘that the products have: (a) left the territory of the exporting Member State, ...’. The general conclusion to be drawn is that MCAs, just like export refunds and exemptions from duty, may not be granted in respect of agricultural products purchased in the course of a ‘butter-buying cruise’ — that is, a short sea-trip involving no disembarkation or only a token one -, when neither exporters nor passengers can show evidence of having purchased products actually marketed in another Member State or outside the territory of the Community (see in particular Case 325/82 Federal Republic of Germany [1984] ECR 777, at paragraphs 25 to 27 of the Decision.
3.

The first question does not call for much discussion since the problem it raises was settled by the Court in Salzano. In answer to a question regarding the terms on which family allowances payable by the Member State of residence were to be regarded as ‘payable’ within the meaning of Article 76 of Regulation No 1408/71 so as to justify suspension of the allowances of the same kind in the Member State of employment the Court, following my opinion, held as follows: ‘There is no suspension of the entitlement to family allowances payable in pursuance of Article 73 of Regulation No 1408/71 in the country of employment of one of the parents when the other parent resides with the children in another Member State and pursues there a professional or trade activity but does not receive family allowances for the children, the reason being that not all the conditions laid down by the legislation of that Member State for the actual receipt of such allowances are satisfied’ (paragraph 11, my italics). As is clear from the grounds of the judgment, the relevant terms are such as are imposed by the legislation of the Member State of residence and relate either to substance or form (Case 191/83 Salzano v Bundesanstalt fir Arbeit [1984] ECR 3741, paragraphs 7 to 10). In other words, if no application has been made by Mrs Ferraioli, which is the case put by the Bundessozialgericht in its first question, the conditions for applying the clause against overlapping in Article 76 are not satisfied. It is true that that interpretation necessarily gives the spouses an option as to which legislation is to be the applicable legislation for the grant of allowances. As I have already pointed out in my opinion in Salzano, that is not unreasonable. I might add to what I then said that it is quite clear from the case-law that Article 76 is far from being a provision which places the burden of family allowances solely on the Member State of residence, for its sole object, as I shall remind the Court later, is to avoid any unjust enrichment which might otherwise arise as a result of the geographical dispersal of the family of the migrant worker. Let me nevertheless point out that it would be at least paradoxical if this Community provision were to deprive spouses of the equal treatment given to them by the domestic law of the Member States in question solely because one of them returns with the children to work in the country of origin.
8.

The Rechtbank van Koophandel, Brussels, took the view that the practical effect of Article 22 of the Royal Decree of 30 June 1966 is that approved travel agencies can fix prices among themselves or at least that by a simple order of the authorities price-fixing measures, which by their nature are intended to protect purely commercial interests, can be made compulsory. It expressed doubt as to whether such a regulation is compatible with Articles 85 and 86 of the EEC Treaty, and therefore referred the following questions to the Court for a preliminary ruling: ‘(A) Are the provisions of Article 22 (3) (e) and (f) of the Belgian Royal Decree of 30 June 1966, which provide that it is contrary to fair commercial practice for an approved travel agency (that is to say, a travel agency holding the authorization provided for in the Law of 21 April 1965): (1) to offer prices and tariffs other than those agreed or imposed by law, (2) to share commission, give rebates or offer advantages, in any form whatsoever, on conditions which are contrary to customary practice, compatible with Article 85 (1) of the EEC Treaty, in particular where it appears that acts which are contrary to fair commercial practice are prohibited by virtue of Article 54 of the Belgian Law of 14 July 1971 on Trade Practices? (B) Are agreements adopted by travel agents on the basis of those provisions compatible with Article 85 (1) of the EEC Treaty? (C) Are the abovementioned provisions of Belgian domestic law and any agreements adopted in implementation thereof compatible with Articles 30 and 34 of the EEC Treaty?’
Opinion of Mr Advocate General Darmon delivered on 31 March 1987. - Commission of the European Communities v Italian Republic. - Implementation of a directive - Combined road and rail carriage of goods. - Case 420/85.



European Court reports 1987 Page 02983



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

I - 1 . In this application, the Commission claims primarily that the Italian Republic failed to adopt within the period prescribed the measures needed to comply with Directive 82/603/EEC of 28 July 1982 ( 1 ) amending Directive 75/130/EEC ( 2 ) on the establishment of common rules for certain types of combined road/rail carriage of goods between Member States .

II - 2 . Directive 82/603/EEC extends the preferential system to combined road and rail transport by inland waterway ( Article 1 ( 2 )*) and provides for the adoption by the Member States of measures reducing or reimbursing the taxes applicable to road vehicles used in combined transport ( Article 8 ).

III - 3 . With regard to transport by inland waterway, the Italian Government pointed out, without being contradicted by the Commission, that there was no network of inland waterways linking Italy and the other Member States of the Community . Accordingly, as Article 1 ( 2 ) of Directive 82/603/EEC is not applicable in Italy, the defendant cannot be accused of any infringement in that respect .

IV - 4 . As for the tax relief provided for in Article 8 of the directive, the Italian Republic contends that such relief is already available in respect of trailers and semi-trailers, which, by virtue of Italian Law No 53 of 28 February 1983, qualify for a reduction of the tax applicable to road vehicles proportionate to the number of trailers belonging to a single undertaking .

5 . However, Article 8 ( 1 ) of the directive also refers to "tractors" as "road vehicles" in respect of which a reduction or reimbursement of the applicable taxes may be granted . As the Italian Government pointed out at the hearing, there is no tax remission at present in respect of tractors .

6 . It was also pointed out at the hearing that, as the structure of the Italian railway network permits the "rollende Landstrasse" - that is to say the loading of the tractor together with the trailers on to the train - to be used only to a limited extent, that mode of transport was very rarely employed by Italian transporters .

7 . The restricted use of that transport system cannot preclude the application of the Community directive, particularly since the tax reductions provided for by that directive have as their purpose to promote and give precedence to the use of railways in combined transport .

V - 8 . Accordingly, I propose that the Court :

Declare that, by failing to adopt, by 1 April 1983 at the latest, the provisions required for the implementation of Article 8 of Directive 82/603/EEC, the Italian Republic has failed to fulfil its obligations under Articles 5 and 189 of the EEC Treaty;

Order the defendant to pay the costs .

(*) Translated from the French .

( 1 ) Official Journal 1982, L 247, p . 6 .

( 2 ) Official Journal 1975, L 48, p . 31 .
7.

Since the Mons court is not clear how the Belgian provisions against overlapping benefits are to be viewed in Community law and what Article 7 (1) (b) of Regulation No 574/72 means, it has decided, by judgment of 21 June 1985, ( 1 ) to stay the proceedings and to submit the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty: ‘(1) Where the widow of a migrant worker has become entitled to a personal invalidity pension in one Member State without application of the Community regulations and claims a survivor's benefit in another Member State on the basis of her husband's employment, again without application of the Community regulations, is it compatible with Articles 48 and 51 of the EEC Treaty that the institution of the second State which grants the survivor's pension should take into account, in applying the rules laid down in its own legislation for preventing the overlapping of benefits, the invalidity pension granted by the first State in the same way as it takes into account invalidity benefits granted under its own legislation? (2) If the answer to the first question is in the affirmative, how must the invalidity pension granted by another Member State, which is not convertible into an old-age pension, be treated if the legislation of a Member State treats the overlapping of the survivor's pension granted by that State with an invalidity benefit or old-age benefit differently: must it be treated as an invalidity benefit or as an old-age benefit? Should a distinction possibly be made according to whether or not the recipient of the invalidity pension has reached retirement age or is receiving an old-age benefit? (3) Should that retirement age be the age laid down in the legislation which includes the provision relating to overlapping benefits or the age laid down in the legislation governing the unconvertible benefit, the overlapping of which with another benefit is regulated? (4) Is Article 7 (1) (b) of Regulation No 574/72 applicable to the overlapping of an indirect pension (a survivor's pension) with a direct pension of a different kind (invalidity or old-age pension)?’
Opinion of Mr Advocate General Jacobs delivered on 18 April 1989. - Jean-Pierre Kerzmann v Court of Auditors of the European Communities. - Officials - Annulment of an appointment. - Case 198/87.



European Court reports 1989 Page 02083

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Opinion of the Advocate-General

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Mr Advocate General F . G . Jacobs delivered his Opinion on 18 April 1989 . (* ) He concluded that the Court should :

( 1 ) Dismiss the action;

( 2 ) Order each party to bear its own costs .

(*) Original language : English .
Opinion of Mr Advocate General Tesauro delivered on 7 December 1989. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose into internal law Directive 74/562/EEC - Access to the occupation of road passenger transport operator. - Case C-287/87.



European Court reports 1990 Page I-00125

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Opinion of the Advocate-General

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Mr Advocate General Tesauro delivered his Opinion on 7 December 1989 . (*) He proposed that the Court should :

( i)declare that, by omitting to introduce and to communicate to the Commission, within the prescribed period, the laws, regulations and administrative provisions necessary in order to comply with Directive 74/562/EEC, as amended by Directive 80/1179/EEC, the Hellenic Republic had failed to fulfil its obligations under the EEC Treaty;

( ii)order the Hellenic Republic to pay the costs .

(*) Original language : Italian :
Opinion of Mr Advocate General Jacobs delivered on 19 October 1989. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose a directive. - Case C-329/88.



European Court reports 1989 Page 04159

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Opinion of the Advocate-General

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Mr Advocate General Jacobs delivered his Opinion on 19 October 1989 . (*) He considered that the Court should declare that, by failing to adopt and to communicate to the Commission within the prescribed period the measures necessary to comply with Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of laws, regulations and administrative provisions of the Member States concerning misleading advertising, the Hellenic Republic had failed to fulfil its obligations under Article 169 of the Treaty, and should order the Hellenic Republic to bear the costs .

(*) Original language : English .
Opinion of Mr Advocate General Jacobs delivered on 17 May 1990. - Commission of the European Communities v Italian Republic. - Obligation to provide the Commission with information - Non-fulfilment. - Case C-48/89.



European Court reports 1990 Page I-02425

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Opinion of the Advocate-General

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Mr Advocate General Jacobs delivered his Opinion on 17 May 1990 . (*) He proposed that the Court should declare that, by omitting to comply with Articles 3(2 ) and 12 of Directive 75/442/EEC, Article 10 of Directive 76/403/EEC and Articles 12(2 ) and 16 of Directive 78/319/EEC, the Italian Republic had failed to fulfil its obligations under the EEC Treaty, and order the Italian Republic to pay the costs .