ddrg/super_eurlex huggingface dataset:
61.

The system adopted by the Council is doubtless more elaborate than that suggested by the Parliament. The penalties, of increasing severity, are to be imposed by the competent authorities of the Member State of establishment (Article 6(3)), without prejudice to any criminal proceedings in the host Member State (Article 6(2)). The provisions proposed by the Parliament are, as regards the authorities competent to penalize infringements, more ambiguous because they refer to ‘the Member State concerned’, so that it is not clear whether the reference is to the host Member State or to the Member State of establishment, or even to exclude the possibility that the expression actually refers to both States. On the latter view, -which seems to me a not unreasonable interpretation of Article 3(2) of the Parliament's proposal, the Parliament's suggested approach has features which are very similar to the text adopted by the Council. Be that as it may, even if one chooses to interpret the Parliament's proposal as conferring the power to impose penalties only on the host Member State, the principle of legitimate expectations, which must prevail between Member States of the Community, means that, in my view, there is here a change which is more one of method than substance. The temporary nature of the regulation adopted by the Council cannot alter the analysis, since the Parliament cannot object to the addition of the system of penalties and at the same time complain that the system can be temporarily suspended. Furthermore, the abovementioned amendment reflects in principle the wishes of the Parliament. Therefore no further consultation of the Parliament is required on the point.
6.

If, therefore, as I think, this case cannot simply be dealt with as a wholly internal situation, it is necessary to consider the provisions of Community law which may be relied upon by Mr Singh, that is to say, having regard to the fact that his spouse moved to the United Kingdom to work as a self-employed person, Article 52 of the Treaty and Article 1 of Directive 73/148/EEC on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. Article 52 provides, first, that within the framework of the provisions which follow it, restrictions on the freedom of movement of nationals of a Member State in the territory of another Member State were to be abolished by progressive stages in the course of the transitional period and, secondly, that freedom of establishment includes the right to take up and pursue activities as self-employed persons under the conditions laid down for its own nationals by the law of the country where such establishment is effected. The Court has held on several occasions that, at least in certain circumstances, Article 52 may be relied upon by the nationals of a Member State in their own country of origin; the Court has held that although it is true that the provisions of the Treaty relating to establishment and the provision of services cannot be applied to situations which are purely internal to a Member State, the position nevertheless remains that the reference in Article 52 to ‘nationals of a Member State’ who wish to establish themselves ‘in the territory of another Member State’ cannot be interpreted in such a way as to exclude from the benefit of Community law a given Member State's own nationals when the latter, owing to the fact that they have lawfully resided on the territory of another Member State and have there acquired a trade qualification which is recognized by the provisions of Community law, are, with regard to their State of origin, in a situation which may be assimilated to that of any other persons enjoying the rights and liberties guaranteed by the Treaty. ( 13 ) Furthermore, in the Stanton ( 14 ) and Daily Mail ( 15 ) cases, the Court held that Article 52 of the Treaty precludes legislation which has the effect of placing at a disadvantage the pursuit of occupational activities in another Member State.
OPINION OF ADVOCATE GENERAL

GULMANN

delivered on 7 October 1992 ( *1 )

Mr President,

Members of the Court,

I can only propose that the Court should uphold the claims of the Commission, having regard to the fact that the Belgian Government has not disputed the failure to fulfil obligations alleged by the Commission.

( *1 ) Original language: Danish.
Opinion of Mr Advocate General Lenz delivered on 24 October 1991. - Union de Recouvrement des Cotisations de Sécurité Sociale et d'Allocations Familiales de la Savoie (URSSAF) v Hostellerie Le Manoir SARL. - Reference for a preliminary ruling: Cour d'appel de Chambéry - France. - Free movement of workers - Indirect discrimination - Social security contributions. - Case C-27/91.



European Court reports 1991 Page I-05531



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The view taken in this case by the French courts and the Commission on the question referred by the Cour d' Appel (Court of Appeal), Chambéry, on the interpretation of Article 48 of the EEC Treaty and Article 7 of Regulation No 1612/68 (1) appears to me to be entirely convincing.

2. It is not necessary for me now to elaborate on that in detail but I would refer to the Report for the Hearing and to the oral argument just presented for particulars of their submissions:

- on the status of a trainee as a worker (with whose treatment under social security law the main proceedings are concerned);

- on the prohibition, under Article 48 of the EEC Treaty and Regulation No 1612/68, of disadvantaging nationals of other Member States (which includes covert discrimination);

- and on the fact that in the field of freedom of movement for workers matters do not turn on conventions between Member States;

and for particulars of the considerations, put forward in the alternative, relating to the application of Article 7 of the EEC Treaty in the field of vocational training.

Conclusion

3. Accordingly, and since the appellant in the main proceedings has not succeeded in putting forward convincing counter-arguments as to how the problems submitted to the Court should be dealt with, the question referred to the Court by the Cour d' Appel, Chambéry, must be answered as follows:

Article 48 of the EEC Treaty and Article 7 of Regulation No 1612/68 must be interpreted as meaning that they preclude national rules which, in the Member States which apply them, result in employers who employ as workers within the meaning of Community law trainees educated in another Member State paying higher social security contributions than they would if they employed trainees whose vocational training took place under a special national scheme.

(*) Original language: French.

(1) - OJ, English Special Edition, 1968(II), p. 475.
26.

I accept that, in the absence of an express limitation on the use of such information by the national authorities, any implied limitation should be confined to what is strictly necessary. In my view, however, it would be inconsistent with the policy underlying Regulation No 17 in general, and Article 15(5) in particular, to permit the national authorities of the Member States to use information supplied voluntarily to the Commission as the basis for national proceedings which might result in the imposition of a penalty. Of course, that information may alert the national authorities to possible infringements of their national rules. In that event, the national authorities may in my opinion, as the AEBP appears to accept, pursue the matter and even in due course impose penalties on the undertakings concerned. It would not be practicable to enforce a requirement that, having received the information in question from the Commission, those authorities then put it out of their minds in considering whether to apply their national law. Indeed, to permit those authorities to use the information concerned in this way is no more likely to discourage undertakings from approaching the Commission than the Court's ruling in Case 85/87 Dow Benelux v Commission [1989] ECR 3137, where the Court said, at paragraph 19 of the judgment: ‘it cannot be concluded that the Commission is barred from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty’. But the national authorities must carry out their own enquiries and gather their own evidence. They are not entitled simply to rely on the information communicated to them by the Commission and to use that information as evidence in national proceedings which may result in the imposition of a penalty on the undertakings in question.
OPINION OF ADVOCATE GENERAL

LENZ

delivered on 1 July 1992 ( *1 )

Conclusion

On the basis of the report of the Judge-Rapporteur, I propose that the Court find against the Italian Republic in accordance with the form or order sought by the Commission.

( *1 ) Original language: German.
21.

Thus, in Knoors, ( 9 ) a Netherlands national residing in Belgium worked there as a plumber in charge of an independent firm. His application to pursue that occupation in the Netherlands was met with a refusal from the Netherlands authorities on the ground that he did not possess the qualifications required by Netherlands legislation. The Court was asked whether Council Directive 64/427/EEC of 7 July 1964 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons falling within ISIC Major Groups 23-40 (Industry and small craft industries) ( 10 ) applied to persons who have the nationality of the host Member State. In its judgment of 7 February 1979. The Court held that: ‘... these liberties, which are fundamental in the Community system [free movement of persons, freedom of establishment and the freedom to provide services guaranteed by Articles 3(c), 48, 52 and 59 of the Treaty], could not be fully realized if the Member States were in a position to refuse to grant the benefit of the provisions of Community law to those of their nationals who have taken advantage of the facilities existing in the matter of freedom of movement and establishment and who have acquired, by virtue of such facilities, the trade qualifications referred to by the directive in a Member State other than that whose nationality they possess; ... Although it is true that the provisions of the Treaty relating to establishment and the provision of services cannot be applied to situations which are purely internal to a Member State, the position nevertheless remains that the reference in Article 52 to “nationals of a Member State” who wish to establish themselves “in another Member State” cannot be interpreted in such a way as to exclude from the benefit of Community law a given Member State's own nationals when the latter, owing to the fact that they have lawfully resided in the territory of another Member State and have there acquired a trade qualification which is recognized by the provisions of Community law, are, with regard to their State of origin, in a situation which may be assimilated to that of any other persons enjoying the rights and liberties guaranteed by the Treaty’. ( 11 )
3.

Miriam Gobbis, the appellant in the main proceedings, was born in Lüdenscheid in August 1969. She is the daughter of an employed person who died in November 1984 and who had completed periods of insurance in Italy and Germany. As long as the appellant resided in Germany, the Landesversicherungsanstalt Schwaben (the LVA), the respondent in the main proceedings, paid her an orphan's pension. When she returned to Italy, the LVA stopped payment of the benefit with effect from 1 April 1985 on the ground that the Italian authorities were thenceforth responsible for payment of the orphan's benefits. At the same time, it declared that it was prepared to pay the difference between the orphan's benefits provided for under the German legislation and those which the appellant would actually receive under the Italian legislation. The Italian insurance institution (the Istituto Nazionale della Previdenza Sociale, the INPS) paid the appellant's mother a total survivor's pension which included both the benefits payable to the appellant and the abovementioned family supplement. However, since the survivor's pension, even after the addition of the orphan's pension, did not reach the minimum statutory level, the total survivor's pension paid to the applicant's mother was increased to the level of the minimum pension. Payment of the family supplement ceased when the appellant reached the age of 18; the total survivor's pension paid out remained unchanged, however, since her mother remained entitled to the statutory minimum. By a decision of 12 September 1989 the LVA granted the appellant an amount equal to the difference between the orphan's benefits calculated exclusively under German legislation and the benefits which, according to its calculations, the Italian insurance institution was liable to pay by way of orphan's benefits. The latter, according to the LVA's calculations, was equal to the sum of the family supplement plus 25% of the total survivor's pension paid monthly to the appellant's mother. The LVA based that percentage on the fact that the ratio (1 to 4) in the total survivor's pension between the portion attributable to the surviving spouse (as I said, 60% of the pension to which the deceased worker was entitled) and that attributable to the orphan (20% of the deceased worker's pension) should be applied to the total survivor's pension, even if that was increased to the statutory minimum. Before the national court the appellant contested the inclusion of the family supplement in the calculation of the orphan's benefits payable under the Italian legislation. She did not contest the fact that the calculation took into account the increase to meet the statutory minimum. As regards the latter, the court which made the reference does not consider itself bound by the appellant's opinion (at that time), as the German legislation permits the court to grant the amounts claimed by the appellant on a different legal basis.
10.

Finally, Greece's argument that the application of Decision 89/659/EEC would infringe the principle of protection of legitimate expectations can be dealt with briefly. Such an argument concerns the incompatibility of the decision with higher-ranking rules of Community law. It thus relates to the validity of the decision, and can therefore no longer be relied on after the expiry of the period referred to in the third paragraph of Article 173 of the Treaty. ( 17 ) Moreover, the Court has recently stated unambiguously: ‘It is true that a recipient of illegally granted aid is not precluded from relying on exceptional circumstances on the basis of which it had legitimately assumed the aid to be lawful and thus declining to refund that aid. If such a case is brought before a national court, it is for that court to assess the material circumstances, if necessary after obtaining a preliminary ruling on interpretation from the Court of Justice. However, a Member State whose authorities have granted aid contrary to the procedural rules laid down in Article 93 may not rely on the legitimate expectations of recipients in order to justify a failure to comply with the obligation to take the steps necessary to implement a Commission decision instructing it to recover the aid. If it could do so, Articles 92 and 93 of the Treaty would be set at naught, since national authorities would thus be able to rely on their own unlawful conduct in order to deprive decisions taken by the Commission under provisions of the Treaty of their effectiveness' ’(my emphasis). ( 18 )
3.

In its reasoned opinion of 23 April 1991 the Commission called on Belgium to remedy the failure to fulfil obligations within two months from receipt of the reasoned opinion. It is clear that this was not done before the end of the written procedure (and presumably still has not been done), even though Belgium informed the Commission in its reply of 13 June 1991 to the reasoned opinion that it had decided to amend Belgian law in the manner desired by the Commission. Belgium has put forward no reasons to justify the delay.
((Indirect discrimination against female workers – Compensation in respect of participation in periods of training to enable members of staff committees to perform their duties))
14.

The Commission also relies on the fact that Article 23 of the agreement, unlike Article 85(1) and Article 86 of the EC Treaty, is not directly applicable. Article 23(2) of the agreement provides that, should a contracting party (that is to say the Community or Austria) consider that a practice is incompatible with that article it may ‘take appropriate measures under the conditions and in accordance with the procedures laid down in Article 27.’ Under Article 27(3) either contracting party may refer the matter to the Joint Committee (consisting of representatives of the Community and Austria). If the infringement of the competition rules is not terminated or if the Joint Committee fails to agree, the contracting party concerned may adopt any safeguard measures it considers necessary under these provisions. Therefore, the contracting parties (the Community or Austria) are supposed to intervene and terminate the infringement without appearing to be under any obligation to do so at any rate according to the wording of the provision. In view of this provision it would appear to be impossible (contrary to the view expressed by the representative of Bonapharma at the oral hearing) for an economic operator directly to invoke an infringement of Article 23 of the agreement before the courts. However, it should be pointed out that the present case does not concern the application of Article 23 of the agreement. The national court in fact would like to know whether there may be a departure from the formal requirements of Protocol 3, where there is an infringement of Article 23 of the agreement and such infringement makes it impossible for the exporter to obtain the requisite proofs of origin. However, to take into account the possibility of an infringement of Article 23 of the agreement would seem to raise problems on other grounds. In such a case the customs authorities of the importing State and in the final analysis the courts with jurisdiction over these authorities (such as here the finance courts or equivalent courts) would have to decide whether there has been any such infringement. It is evident that in the performance of this task the abovementioned authorities would face considerable difficulties. Although the national court's question is submitted on the basis that there is an infringement of Article 23 of the agreement those difficulties must be taken into consideration in the present case since the Court's ruling will have significance also for future disputes of a comparable nature.
33.

On 7 July 1992 the Commission adopted a proposal for a Council Regulation on novel foods and novel food ingredients. ( 13 ) The Commission made an amended proposal on 1 December 1993. ( 14 ) Both proposals referred to Article 100a of the Treaty as the legal basis for the adoption of the act. The proposal will now have to be adopted according to the co-decision procedure as a result of the amendment to Article 100a by the Treaty on European Union. The proposal seeks to regulate the placing on the market of food and food ingredients which have not hitherto been used for human consumption to a significant degree or which have been produced by processes which result in a significant change in their composition, nutritional value or intended use (Article 1). Foods and food ingredients produced from GMOs are included. The application of the proposed Regulation to organic food is not excluded by Article 2. Article 4 of the amended proposal (Articles 5 and 6 of the original proposal) provides for a written consent procedure which must be complied with before novel foods or novel food ingredients can be placed on the market. Article 5 of the amended proposal (Article 7 of the original proposal) provides for a special consent procedure for food ingredients which contain or consist of GMOs within the meaning of Directive 90/220/EEC. In essence, Article 5 would render inapplicable the consent procedure which has to be followed in accordance with Articles 11 to 18 of Directive 90/220/EEC for the placing on the market of GMOs. That is permitted by Article 10(2) of Directive 90/220/EEC. If the proposal is adopted, the consent procedure of Articles 11 to 18 of Directive 90/220/EEC will be replaced by the procedure in Article 5. The broad principles on which consent can be granted or refused are similar to those in Directive 90/220/EEC.
35.

A similar approach was taken in Nimz. ( 21 ) The collective agreement in issue in that case required employees who were employed for between one-half and threequarters of the working time of a fulltime employee to have completed double the length of service of fulltime employees in order to qualify for the next higher salary grade. In order to justify the difference in treatment, it was argued that fulltime employees or those who worked for threequarters of normal working time acquired more quickly than others the abilities and skills relating to their particular jobs. In response to that argument the Court held: ( 22 ) ‘... Although experience goes hand in hand with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in a particular case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours. However, it is a matter for the national court, which alone is competent to evaluate the facts, to determine in the light of all the circumstances whether and to what extent a provision in a collective agreement such as that here at issue is based on objectively justified factors unrelated to any discrimination on the grounds of sex.’