ddrg/super_eurlex huggingface dataset:
1.

Within the framework of the questions previously submitted to the Court in connexion with the dispute between Mrs Pierik, the recipient of an invalidity pension, or more precisely the Bedrijfsvereniging [trade association] to which she was affiliated, and the Ziekenfonds [Sickness Fund] of Drenthe, the Court did not have to rule on the issue of whether the concept of a ‘pensioner’ within the meaning of Article 31 of Regulation No 1408/71 of the Council is more restricted than the concept of a ‘worker’ used inter alia in Article l.(a) thereof. The issue is now expressly raised, and it forms the subject-matter of the first question submitted to the Court. It appears moreover that the answer is of importance only if the rights conferred by Article 31 are different from those conferred by Article 22. However, the national court refrains from asking about this matter, and I must therefore answer the first question in the abstract. Although the terms ‘active’ or ‘inactive’ population are not used in Chapter 1 of Title III of the regulation, that chapter is divided into sections which correspond to different categories of potential recipients of benefits. This structure shows that for the purpose of the provisions relating to sickness and maternity benefits a distinction is to be drawn between ‘active’ persons and pensioners so that, when the latter or members of their family are staying in a State other than the one in which they reside, they receive benefits in kind and, where appropriate, cash benefits in accordance with the rules laid down in Article 31 as amended by the Act of Accession. A further argument in favour of this distinction comes from the provisions of Article 34, which distinguishes between the case of mere pensioners and the case of pensioners ‘who are entitled to benefits under the legislation of a Member State as a result of pursuing an occupational activity’and who ‘in such a case … shall be considered as a worker … for the purposes of this chapter’. To tell the truth, I consider this argument irrelevant to the extent to which, as in the Netherlands for example, the overlapping of a pension for an accident at work or for an occupational disease on the one hand and of a salary on the other is practically impossible because, either the continued occupational activity prevents any entitlement from arising, or the amount of the pension is deducted from the salary. It therefore appears impossible, at least in that Member State, for a pensioner to pursue an occupational activity to any effect. As I have said, acknowledgment of this distinction does not however prejudge the issue of whether the rights conferred by Article 31 are substantially different from those conferred by Article 22. The Commission expressly refuses to state a view; the Netherlands court also refrains from asking this Court about the point, and I do not think that in a reference under Article 177 it is for this Court to rule on this question of its own motion. Moreover it is not impossible that, in order to clarify all its doubts, the Centrale Raad van Beroep might refer the case to this Court a third time.
OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 21 OCTOBER 1980

My Lords,

There is little I can usefully say in these cases. The Italian Republic does not deny that it has failed to bring into force the national legislation necessary to comply with the directives in question. It explains the circumstances that have led to the delay but does not claim that they justify it.

In my opinion Your Lordships can but make the declarations sought by the Commission, and order the Italian Republic to pay the costs of the actions.
OPINION OF MRS ADVOCATE GENERAL ROZÈS

DELIVERED ON 2 DECEMBER 1981 ( 1 )

Mr President,

Members of the Court,

The Commission of the European Communities has brought before this Court five actions against the Italian Republic for failure to fulfil its obligations on the ground that it had failed to adopt, within the prescribed period of two years, the provisions needed in order to comply with five directives concerning the programme for the protection of the environment.

By your order of 30 September 1981, those five cases were joined for the purposes of the oral procedure and the judgment.

The directives in question are based on Articles 100 and 235 of the EEC Treaty and are designed either to eliminate substances which are poisonous (waste oils, waste) and cannot be broken down (polychlorinated biphenyls and polychlorinated terphenyls) or to protect the quality of surface water intended for the abstraction of drinking water in the Member States and the quality of bathing water. Their purpose is therefore to afford the same degree of protection within the Community to the health of individuals and to the environment and, moreover, to abolish certain differences between the laws of the Member States

which are capable of creating an imbalance in the conditions of competition.

As I have already pointed out, those directives accorded the Member States a two-year period within wich they were to adopt implementing provisions under national law. The Italian Government did not submit any observations to the Commission which, once those periods had expired, lawfully delivered five reasoned opinions in which it declared that the Italian authorities had failed to fulfil their obligations to comply with the aforesaid directives.

The Italian Republic has not disputed either in fact or in law the need to bring into force the national laws, regulations and administrative provisions which it is under an obligation to adopt. It has pointed out that in January 1979 it laid a draft law before Parliament concerning the delegation to the government of the power to adopt the legislative rules needed to implement a series of Community directives but that in view of the premature dissolution of both chambers the legislative procedure has not yet been completed. It is apparent that although the above argument relating to the peculiarities of the parliamentary process reflects the Italian Government's firm intention to proceed as soon as possible with the implementation of Community provisions, it is inoperative in the present cases in view of the binding force of directives which the Court has constantly reaffirmed in its established case-law (judgments of 26 February 1976 in Case 52/75 Commission v Italian Republic [1976] ECR 277; 22 September 1976 in Case 10/76 Commission v Italian Republic [1976] ECR 1359; 22 February 1979 in Case 163/78 Commission v Italian Republic [1979] ECR 771; 2 December 1980 in Case 42/80 Commission v Italian Republic [1980] ECR 3635).

In my opinion therefore the Court should uphold the Commission's submissions and order the defendant to pay the costs.

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

DELIVERED ON 22 JUNE 1982

My Lords,

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

The Grand Duchy of Luxembourg has not denied, either in the written procedure or in its oral submissions, that it has failed to comply with the directive. It contends, however, that its failure is due to the complexity of the subjectmatter and to the difficulty involved in reconciling the relatively limited amendment of harmonization law entailed by that directive with the more extensive changes foreseen for the future. On 9 February 1979 the Prime Minister presented to the Council of State a report on the subject; and on 21 January 1981 a bill, designed to implement the directive, was laid before the Chamber of Deputies. In June and in September 1981, members or representatives of the government impressed upon the Chamber the urgency in the matter. The bill remains under consideration.

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

In consequence, in my opinion, the declaration sought by the Commission should be granted in this case and the Grand Duchy of Luxembourg should be ordered to pay the costs.
3.

Although that assessment is not disputed by the parties, they nevertheless disagree as to the amount of damages payable as a result. In a letter to the applicant dated 29 March 1984 the Commission offered by way of damages a total sum of BFR 120000, made up as follows: — BFR 60000 in respect of the permanent partial invalidity, — BFR 60000 in respect of the disfigurement, with interest as from the date of the judgment of the Court. It contends that the Court should declare that offer satisfactory. Mr Berti : — Accepts the sum of BFR 60000 offered in respect of the disfigurement; — Claims the sum of BFR 200000 in respect of the permanent partial invalidity; — Asks for compensatory interest to be awarded as from the date of the accident and for default interest at the rate of 12% from the date of the judgment of the Court.
OPINION OF MR ADVOCATE GENERAL LENZ

delivered on 4 July 1985 ( *1 )

Mr President,

Members of the Court,

The case before the court today raises once again the question of the French legislation on fixed prices for books. The Court is acquainted with that legislation, since it was set out in its judgment of 10 January 1985 in Case 229/83 ( 1 ) pursuant to a request for a preliminary ruling by the Cour d'Appel, Poitiers.

The legal issues in the present case, which has come to the Court from the Tribunal de Grande Instance, Nantes, are identical to those in Case 229/83. The phrasing of the question referred to the Court for a preliminary ruling and the observations of the parties, the Government of the French Republic and the Commission are also identical to those in the former case.

Thus, no new legal submissions have been made which could induce the Court to alter the view it has expressed.

Therefore, I propose that in accordance with the previous practice (see the judgment in Case 179/83 ( 2 )) the operative part of the judgment in Case 229/83 should be repeated and a reference should be made to the said judgment, a copy of which should be annexed to the present judgment.

( *1 ) Translated from the German.

( 1 ) Association des Centres Édouard Leclerc v Sàrl Au Blé Vert, [1985] ECR 17.

( 2 ) Industriebond FNV v Netherlands, [1985] ECR 514.
1.

In this action the Commission asks the Court to declare that Italy has failed to fulfil its obligations under Council Directive 75/130/EEC of 17 February 1975 on the establishment of common rules for certain types of combined road/rail carriage of goods between Member States. ( 1 ) By that directive, which was adopted in the framework of the Common Transport Policy, the Community legislature granted preferential treatment to a type of mixed carriage of goods, by road and rail. The objective of the directive is to reduce to a minimum the distance covered by road and to promote carriage by rail for the sake of three anticipated advantages: energy-saving, the reduction of road traffic and increased road safety, and protection of the environment (second recital in the preamble). For that purpose, whereas the carriage of goods by road is still subject to a system of authorization of Community quotas, Directive 75/130/EEC provides that: ‘Each of the Member States shall, by 1 October 1975, liberalize the combined road/rail carriage referred to in Article 1 from all quota systems and systems of authorization’ (Article 2). However, Article 2 relates only to combined road/rail carriage, that is to say, ‘road transport of goods between Member States where [the vehicles] ... are transported by rail between the nearest suitable rail loading station to the point of loading and the nearest suitable rail unloading station to the point of unloading’ (first indent of Article 1 (1)). To ensure that the regulations are complied with, control measures are provided for. Article 3 requires that the transport document shall specify ‘the rail loading and unloading stations’. Article 3 also states that: ‘These details shall be recorded before the transport operation is carried out and shall be confirmed by means of a stamp affixed by the rail authorities in the stations concerned when that part of the journey carried out by rail has been completed’.
OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 9 July 1986

My Lords,

On 10 November 1981 the Court gave judgment in Cases 28/81 and 29/81 both entitled Commission v Italy at [1981] ECR 2577 and 2585 respectively. In the former it held that Italy was in breach of its obligations under the EEC Treaty in that it had failed to implement Council Directive 74/561 on the admission to the occupation of road haulage operator in national and international transport operations (Official Journal 1974, L 308, p. 18) and in the latter case that Italy had failed to implement Council Directive 74/562 on admission to the occupation of road passenger transport operator in national and international transport operations (Official Journal 1974, L 308, p. 23).

Two years later, after a number of attempts to find out whether anything had been done to implement the judgments of the Court, the Commission initiated the procedures under Article 169 of the Treaty. Having received no information to the effect that the judgments of the Court had been complied with this application was brought on 22 May 1985 asking for a declaration that Italy had failed to fulfil its obligations under Article 171 of the EEC Treaty. In Italy's defence and in a letter of 3 May 1986 in answer to a question from the Court, it appeared that a draft law implementing Directive 74/561 had been considered by a previous Parliament, which had been dissolved before the law was adopted, and that two proposals were at that stage before the Parliament; there was also a draft before the Italian Parliament to implement Directive 74/562.

Even today, although the matter has proceeded some way and the draft is now before the Senate, that legislation has not been implemented.

This is a plain case in which regrettably Italy has failed to comply with the judgments of the Court after almost five years. It is clear that an order should be made in the terms that by failing to implement Council Directives 74/561 and 74/562 in compliance with the judgments of the Court, Italy is in breach of Article 171 of the EEC Treaty. Italy should pay the costs of the Commission in this case.
(a)

In the written procedure the applicant stated first of all that it was not conceivable that on 24 October 1984 the Commission could in fact have made an assessment of the merits of candidates for promotion. That is to say, it is unthinkable that on that day the advisory committee arrived at an opinion and transmitted it in writing to the appropriate Member of the Commission; that on the same day the latter examined the proposal and prepared a draft decision; and that, still on the same day, a decision was adopted by the Commission. When it became apparent in the course of the proceedings that the advisory committee was not again consulted before the adoption of the decision of 24 October 1984, the applicant contended that this was a procedural error. Finally, when the Commission, in reply to questions put to it by the Court, explained in detail the manner in which the decision of 24 October 1984 was prepared and adopted (in particular its statement that after the communication to them of the administrative points on the agenda of the meeting of 24 October 1984 the Members of the Commission had the possibility, from the previous Friday onwards, of becoming familiar with the relevant documents; on the Monday before the meeting of the Commission there was a meeting of their chefs de cabinet at which a proposal for a decision was mentioned; finally, at the meeting on 24 October 1984 the Secretary General had with him the personal files of all the candidates), the applicant expressed the view that the Commission had not shown that before the adoption of the decision of October 1984 its members had in fact considered the personal files of the candidates as required by Article 45 of the Staff Regulations, and that the conclusion must therefore be that its decision was not correctly made.
JOINED OPINION OF MR ADVOCATE GENERAL LENZ DELIVERED ON 1 APRIL 1987. - COMMISSION OF THE EUROPEAN COMMUNITIES V ITALIAN REPUBLIC. - FAILURE OF A MEMBER STATE TO FULFIL ITS OBLIGATIONS - FAILURE TO IMPLEMENT IN NATIONAL LAW COUNCIL DIRECTIVE 83/183/EEC - TAX EXEMPTIONS APPLICABLE TO PERMANENT IMPORTS FROM A MEMBER STATE OF PERSONAL PROPERTY OF INDIVIDUALS. - CASE 124/86.



European Court reports 1987 Page 04661



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In delivering my Opinion on the two actions brought against a Member State for failure to fulfil its Treaty obligations, which the Court has just heard, I propose to be brief .

2 . The Commission of the European Communities, the applicant, has in essence applied to the Court for a declaration, with costs, that the Italian Republic, the defendant, is in breach of its obligations under the EEC Treaty by failing to adopt within the time allowed the laws, regulations and administrative provisions necessary to comply with Council Directives 83/181/EEC and 83/183/EEC of 28 March 1983 . ( 1 )

3 . The defendant has not denied the failure to fulfil its Treaty obligations of which it is accused, nor has it presented any formal submissions; it has merely pointed out that some of the provisions contained in the directives are already applicable in Italian law, albeit subject to different procedures and time-limits . It has also pointed out the efforts made - so far without success - to implement the directives in its national law prior to today' s oral procedure .

4 . Under Article 93 of Directive 83/181/EEC and Article 12 of

Directive 83/183/EEC the Member States were required to bring into force the laws, regulations and administrative provisions necessary for compliance with the directives by 1 July and 1 January 1984 respectively . The defendant has undisputably failed to fulfil that obligation .

5 . I therefore propose that the Court should grant both applications and order the defendant to pay the costs of the proceedings .

(*) Translated from the German .

( 1 ) Council Directive 83/181/EEC of 28 March 1983 determining the scope of Article 14*(1)*(d )) of Directive 77/388/EEC as regards exemption from value-added tax on the final importation of certain goods ( Official Journal 1983, L*105, p.*38 ); Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals ( Official Journal 1983, L*105, p.*64 ).
23.

As far as breach of the principle of legal certainty is concerned, the STM is by nature a source of uncertainty for traders. The import ceilings are merely ‘indicative’, and the list of products covered may be amended in accordance with the conditions laid down in Article 81 (3) of the Act of Accession. Furthermore, all that is needed to trigger the system of protective measures is the finding of a ‘significant’ increase in imports. With regard to the breach of the principle of legal certainty caused specifically by some of the detailed rules of the system, the following observations may be made. Whilst the release of the security may, as Spain has maintained, depend on the diligence of the trading partner holding the STM licence, it must also be noted that ‘Proof of entry for home use may also take the form of producing the customs document of entry for home use, or of a copy or photocopy of it certified [by the national authorities] as being authentic’. ( 29 ) As for the argument that the rights attaching to the STM licences may be withdrawn at any time in respect of one or more Member States, it should be observed that Article 5 (2) of Regulation No 569/86 as supplemented by Article 15 of Regulation No 574/86 makes no provision for limiting the validity of such licences except in cases of the ‘regional application’ of measures suspending or limiting licences. In such cases the licence system is merely used to give effect to the provisions of the last subparagraph of Article 85 (3) of the Act of Accession, under which restrictive trade measures ‘may be limited to imports intended for certain of [the] regions’ of the Community of Ten, provided that ‘they include appropriate provisions to avoid deflections of trade’. Legal certainty is allegedly undermined by two other provisions. Article 4 (1) of Regulation No 569/86 enables the issuing of STM licences to be limited to certain products or spread out over a period of time. The staggering of licences originates in the Act of Accession itself, under which, ‘within the framework of the overall indicative ceiling, ceilings may be fixed corresponding to the different periods of the marketing year in question’. ( 30 ) The resultant uncertainty may not therefore be attributed to the Council regulation itself. As for the limitation of licences, even assuming that it may give rise to doubts amongst traders regarding the products covered by the system of supervision, it would only be unlawful if it proved to be disproportionate to the aim pursued in the context of the aforesaid derogations. It is therefore from the viewpoint of proportionality that it must be assessed. The same applies to the waiting period for the licence, under Article 6 (2) of Regulation No 574/86, which is also referred to by the applicant.
Opinion of Mr Advocate General Tesauro delivered on 14 December 1988. - Malcolm Bevan v Commission of the European Communities. - Officials - Staff reports - Promotion - Action for damages. - Case 140/87.



European Court reports 1989 Page 00701

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Opinion of the Advocate-General

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Mr Advocate General Tesauro delivered his Opinion on 14 December 1988 . (*) He proposed that the Court :

( 1 ) annul the applicant' s staff report for the period from 1 July 1983 to 30 June 1985, inasmuch as the assessors were not competent to draw up the report;

( 2 ) dismiss the remainder of the application;

( 3 ) order the Commission to bear one-third of the applicant' s costs .

(*) Original language : Italian .
Opinion of Mr Advocate General Mischo delivered on 22 February 1989. - United Kingdom of Great Britain and Northern Ireland v Council of the European Communities. - Action programme for the vocational training of young people - Action for annulment - Legal basis. - Case 56/88.



European Court reports 1989 Page 01615

Pub.RJ Page Pub somm



Opinion of the Advocate-General

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Mr Advocate General Mischo delivered his Opinion on 22 February 1989 . (*) He concluded as follows :

"Under Article 4(1 ) of the Treaty 'each institution shall act within the limits of the powers conferred upon it by this Treaty' . Since Article 128 does not confer on the Council the powers which it purported to exercise in adopting Decision 87/569/EEC on the basis of that article alone, that institution acted ultra vires . Decision 87/569/EEC should therefore be declared void and the Council ordered to pay the costs . The Commission, which intervened in support of the Council' s conclusions, should bear its own costs ."

(*) Original language : French .