ddrg/super_eurlex huggingface dataset:
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 Republic of Italy 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 13 December 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 Republic of Italy has not denied, either in the written procedure or in its oral submissions, that it has failed to comply with the directive. It has explained that a bill, designed to enable the directive to be implemented, was presented to the seventh Parliament but it proved impossible to secure its adoption before the dissolution of that Parliament in 1979. A similar bill was presented to the eighth Parliament, on 4 or 24 September 1979 and after consideration by the appropriate Commissions was duly approved by the Senate on 16 July 1980. It is currently being considered in the Chamber of Deputies. The Italian Government has on several occasions called for a prompt conclusion of the Parliamentary process and has given an assurance that this directive will be implemented as soon as possible.

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 Republic of Italy should be ordered to pay the costs of the action.
1.

The first, second and fourth elements of this submission were presented in the reply and the third element was only presented at the hearing. It is therefore necessary to begin by examining its admissibility. Article 42 (2) of the Rules of Procedure provides that “no fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure”. In addition, by virtue of the case-law of the Court, ( 8 ) a new submission is equally admissible when it may be regarded as “amplifying a submission made previously”, the rule allegedly infringed having been referred to either expressly or by implication in the application bringing the action. This submission is based on documents which Christiane Hoffmann alleges she had not seen until the submission of the defence. Extracts from the minutes of meetings of the various promotion bodies and from the decision of the appointing authority constitute Annexes 11 to 14 to that defence. The condition laid down by Article 42 (2) for the admissibility of the submission would therefore be satisfied if Christiane Hoffmann was in fact unable to have knowledge of the documents previously. This inability has not been disputed by the Commission and does not seem to me unlikely, since it concerns documents which, by their nature, are not disclosed to the officials concerned. ( 9 ) This ground for admissibility cannot however be applied to the element of the submission which was not presented until the hearing. The question of the failure of the Committee of Second Instance to consult the personal files could have been raised in the reply because an extract from the minutes of the meeting of that committee had been annexed to the defence. I wondered however whether there was not a second ground on which the second submission might be held to be admissible, applicable to all four of its elements, including the third, and based on the Court's judgment in the Amylum case. ( 10 ) It might have been considered that the second submission constituted an amplification of the sole submission in the application, which became the first submission in the reply. As we have seen, the first element of this submission relates to the uncertainty surrounding the examination of the diplomas of Christiane Hoffmann and Mrs G. by the various promotion authorities. These diplomas are contained in the personal files of those officials and, in her second submission, the applicant is in fact criticizing the promotion authorities for not having consulted them. However, I would invite the Court not to follow that line of argument because that precise and limited element of the submission did not appear until the reply and was not referred to either expressly or by implication in the application. Consequently, the admissibility of the second submission, which I suggest that the Court accept, should not extend to its third element.
2.

The circumstances giving rise to the dispute between the company known as Italgrani and the Italian customs authorities are as follows: In November 1972 the company made a declaration to the customs authorities at Leghorn (Livorno) that it intended to import a consignment of wheat from a non-member country. The declaration was accepted by the authorities on 8 November 1972, but the goods were not removed from the customs until after that date, in batches spread over a period of time. Initially, the customs authorities applied the agricultural levy at the rate ruling on the dates when the goods were removed. However, on 11 July 1977 they demanded payment from the importing company of the sum of LIT 5901035, plus interest, representing the difference between the rate ruling on the day when the import declaration was accepted and the rate ruling when the goods were removed. In so doing, the customs authorities were merely abiding by the Court's judgment of 15 June 1976 in Frecassetti ( 2 ), in which it was held that levies must be calculated on the basis of the rate applicable on the day when the impon declaration for the goods is accepted. Nevertheless, Italgrani objected to the post-clearance recovery, claiming that the case-law of the Court could not apply to situations which had already been settled. The Tribunale in Florence wishes to know whether the adoption of Council Regulation (EEC) No 1697/79 of 24 July 1979, which deals with the question of post-clearance recovery, has the effect of rendering unlawful the action for recovery taken by the Italian authorities, regard being had to the fact that that action was commenced prior to 1 July 1980, on which date the Council regulation came into force, but more than three years after the adoption of the administrative measure whereby the levy applicable was originally determined.
3.

I do not think those arguments can be upheld. Let me refer the Court first of all to its well established case-law according to which ‘only those acts [of the administration] capable of directly affecting a precise legal position can be regarded as adversely affecting an official’ (judgment of 11 July 1974 in Joined Cases 177/73 and 5/74 Reinan v Commission [1974] ECR 819; judgment of 11 July 1985 in Joined Cases 66 to 68 and 136 to 140/83 Hattet v Commission [1985] ECR 2459). The letter of 3 April 1979 certainly falls within that category; by that letter the Director General acknowledged the applicant's right to receive the foreign residence allowance for the period between 12 May and 30 June 1978 but at the same time denied that she was entitled to it for the period after the latter date, on the ground that she no longer satisfied the conditions laid down in Article 4 of Annex VII. Another fact which shows that the letter constitutes a decision within the meaning of Article 90 of the Staff Regulations is that the administration paid the aforementioned allowance every month until, but not after, the date referred to by the Director General, and the applicant made no protest. With regard to the question whether the application was brought in due time, it is now trite law that the time-limits prescribed in Articles 90 and 91 of the Staff Regulations ‘were laid down with a view to ensuring clarity and legal certainty’; they are therefore ‘a matter of public policy and are not subject to the discretion of the parties or the Court’ (judgment of 12 July 1984 in Case 227/83 Moussis v Commission [1984] ECR 3133, paragraph 12; see also the cases referred to by the Court in that judgment). The fact that on the applicant's request the administration furnishes additional information with regard to a request which was made out of time and which was therefore ‘inadmissible ... cannot have the effect of derogating from the system of mandatory time-limits ... and reestablishing a right of action which is definitively time-barred’ (judgment in Moussis, paragraph 13). Finally, the fact that the applicant obtained an opinion from a lawyer which was apparently different from the opinion which he had previously given to the Economic and Social Committee cannot cause the time for taking action to start running again. Such opinions are neither binding on the administration with regard to the decision to be adopted in relation to the official in question nor capable of directly affecting the official's legal position. The objection raised by the Economic and Social Committee is therefore well founded.
Opinion of Mr Advocate General Darmon delivered on 19 November 1986. - Commission of the European Communities v Italian Republic. - Intra-Community trade in cattle and swine - Transposition into national law of certain directives. - Case 364/85.



European Court reports 1987 Page 00487



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Commission is asking for a declaration that, by failing to adopt within the prescribed period the provisions necessary to comply with Council Directives 80/219/EEC, 80/1098/EEC and 80/1102/EEC, amending Directive 64/432/EEC on animal health problems affecting intra-Community trade in bovine animals and swine, the Italian Republic has failed to fulfil its obligations under the EEC Treaty .

2 . The defendant Member State does not contest that it has failed to fulfil its obligations . Its representative confirmed at the sitting that the legislation designed to implement the aforementioned directives in Italy is still being discussed in the Italian Parliament .

3 . Once again, as the Court held in a similar case, it must be pointed out that

"the governments of the Member States participate in the preparatory work for directives and must therefore be in a position to prepare, within the period prescribed, the draft legislative provisions necessary for their implementation" ( judgments of 12 October 1982 in Cases 136, 148, 149 and 151/81 ).

4 . The Commission' s action must therefore be upheld since the Italian Republic has failed to fulfil its obligations under Articles 5 and 189 of the EEC Treaty .

(*) Translated from the French .

- 1 -
13.

As we have seen, no analogous provision is to be found in the Act of Accession or the Council's implementing regulation as regards the fixing of the regulatory amounts for wines with an appellation as to origin referred to in the annex to the contested regulation. In other words, the context in which the Commission regulation was adopted is not in itself sufficient to explain their adoption. That fact is sufficient to establish the alleged failure to state reasons. Moreover, the case-law of the Court confirms that conclusion. A statement of reasons ‘must be appropriate to the nature of the measure in question’. Although the Court accepts that ‘the statement of the reasons on which regulations are based is not required to specify the often very numerous and complex matters of fact or of law dealt with in the regulations’, this is only if ‘the latter fall within the general scheme of the body of measures of which they form part’. ( 8 ) To sum up, the Act of Accession and the Council regulation do not provide any evidence suggesting that the Commission is exempt from complying with the obligation laid down in Article 190 of the EEC Treaty to provide a statement of reasons, even if it is only brief. ( 9 ) Moreover, in the present case, it was not a question of implementing or maintaining existing rules ( 10 ) or a Community system familiar to those concerned ( 11 ) but, once again, the first regulation on this matter. The aim of the obligation to state reasons is to ‘show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review’. ( 12 ) Having regard to the foregoing considerations, the fact remains that that aim is not achieved by Commission Regulation No 648/86, as amended by Regulation No 969/86, it being unnecessary to appraise the reasons — convincing as they may have been — advanced by the defendant during the proceedings.
Opinion of Mr Advocate General Lenz delivered on 25 February 1988. - Commission of the European Communities v Kingdom of Belgium. - Failure of a Member State to fulfil its obligations - Failure to implement Council Directive 82/470/EEC in national law - Effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies and in storage and warehousing. - Case 283/86.



European Court reports 1988 Page 03271



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . In the present proceedings for failure to fulfil obligations the Commission of the European Communities, the applicant, seeks a declaration that by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 82/470/EEC of 29 June 1982 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies ( ISIC Group 718 ) and in storage and warehousing ( ISIC Group 720 ), ( 1 ) the Kingdom of Belgium has failed to fulfil its obligations under the directive and under the third paragraph of Article 189 and the first paragraph of Article 5 of the EEC Treaty .

2 . Article 8 of the directive provides that the Member States are to adopt the measures necessary to comply with the directive within 18 months of its notification and must forthwith inform the Commission thereof . That period expired on 2 January 1984 .

3 . The defendant does not deny that the requisite measures have not been adopted in Belgium in order to comply with the directive within the prescribed period .

4 . Although we have today heard at the hearing that implementing measures in respect of part of the directive have in the mean time been adopted by way of a Royal Decree, there is no doubt that that was not done within the prescribed period .

5 . I therefore propose that the Court should rule as follows :

"( 1 ) By failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 82/470/EEC of 29 June 1982 the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty .

( 2 ) The Kingdom of Belgium shall pay the costs of the proceedings ."

(*) Translated from the German .

( 1 ) OJ 1982, L 213, p . 1 .
Opinion of Mr Advocate General Lenz delivered on 22 November 1988. - Hellenic Republic v Commission of the European Communities. - Clearance of EAGGF accounts - Financial year 1982. - Case 214/86.



European Court reports 1989 Page 00367

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Opinion of the Advocate-General

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Mr Advocate General Lenz delivered his Opinion on 22 November 1988 . (*) He proposed that the Court should :

( 1 ) Dismiss the application;

( 2 ) Order the applicant to pay the costs .

(*) Original language : German .
Opinion of Mr Advocate General Vilaça delivered on 25 May 1988. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose into national law Commission Directive 84/414/EEC - Adaptation to technical progress of Directive 76/764/EEC. - Case 326/87.



European Court reports 1988 Page 04009



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . Commission Directive 84/414/EEC ( 1 )of 18 July 1984 amended, by adapting it to technical progress, Directive 76/764/EEC on the approximation of the laws of the Member States relating to clinical mercury-in-glass maximum-reading thermometers,(2 )as amended by Council Directive 83/128/EEC of 28 March 1983.(3 )

2 . Article 2 of the new directive provided that the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with it by 1 January 1986 and inform the Commission thereof forthwith .

3 . Having received no information from the Italian Republic, on 9 July 1986 the Commission initiated the procedure under Article 169 of the Treaty .

4 . The Italian authorities made no reply during the administrative phase, and the Commission therefore brought the present action before the Court for a declaration that by failing to give notice of the measures which it was under a duty to adopt by virtue of that directive, or by failing to adopt such measures, the Italian Republic had failed to fulfil its obligations under the Treaty .

5 . In its defence, the Italian Government acknowledged its infringement of the Treaty by failing to transpose the directive, merely stating that it had encountered certain difficulties in doing so in due time and that it was making every effort to ensure that the process was completed as soon as possible .

6 . At the hearing the Commission confirmed that, needless to say, it now limited its application to the complaint concerning the failure to adopt the provisions necessary to implement the directive within the prescribed period .

7 . It merely remains for me conclude in those terms, in accordance with the previous decisions of the Court, that the Italian Republic has failed to fulfil its obligations under the Treaty and I propose that the Court uphold the Commission' s action and order the defendant to pay the costs .

(*) Translated from the Portuguese .

( 1 ) Official Journal 1984, L 228, p . 25 .

( 2 ) Official Journal 1976, L 262, p . 139 .

( 3 ) Official Journal 1983, L 91, p . 29 .
61987C0324

Opinion of Mr Advocate General Jacobs delivered on 19 January 1989. - Commission of the European Communities v Italian Republic. - Failure by a State to fulfil its obligations - Failure to transpose a directive into national law - Rules relating to health measures on the importation of fresh meat and animals of certain species. - Case 324/87.



European Court reports 1989 Page 01013

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JOINED OPINIONS OF MR ADVOCATE GENERAL MISCHO DELIVERED ON 13 DECEMBER 1990. - KONISHIROKU PHOTO INDUSTRY CO LTD V COUNCIL OF THE EUROPEAN COMMUNITIES. - CASE C-176/87. - SANYO ELECTRIC CO LTD V COUNCIL OF THE EUROPEAN COMMUNITIES. - CASE C-177/87. - ANTI-DUMPING DUTY ON IMPORTS OF PLAIN PAPER PHOTOCOPIERS ORIGINATING IN JAPAN.



European Court reports 1992 Page I-01493



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The major part of the submissions of the applicants in Cases C-176/87 Konishiroku, and C-177/87 Sanyo, comprises observations lodged jointly with those of the applicants in Cases C-174/87 Ricoh v Council, C-175/87 Matsushita v Council, and C-179/87 Sharp v Council. Those observations concern determination of the injury, evaluation of the Community interest and calculation of the anti-dumping duty. The submissions of Konishiroku and Sanyo in that regard must therefore be rejected for the reasons given in my Opinion in Case C-174/87 Ricoh, to which I would refer the Court.

2. As regards the observations of the applicants in the present cases concerning "the Commission' s practices in calculating whether dumping was present" which, occupying one typewritten page, form part of the introduction to their applications, I, like the Council, consider that it is unnecessary to examine them. As each of the applicants states that,

"since other exporters will be raising these matters in separate applications, and in order to reduce the volume of pleadings to be examined by the Court, this application will concentrate on the questions of injury and Community interest" (page ii of each of the applications),

it may be considered that those observations do not actually form part of their applications. Moreover, they are rather imprecise and could be easily refuted, first on the basis of the principle that the methods of calculating the normal value and the export price respectively are independent and, secondly, by virtue of the considerations set out in my Opinions in the other cases in relation to the submissions concerning the comparison of those two items.

3. In conclusion, I propose that the Court dismiss the applications in Cases C-176/87 and C-177/87 and order Konishiroku and Sanyo to pay the costs, including those of the interveners.

(*) Original language: French.
61988C0052

Opinion of Mr Advocate General Darmon delivered on 11 April 1989. - Commission of the European Communities v Kingdom of Belgium. - Free movement of goods - Prohibition of the importation of meat-based products containing more than a given quantity of edible gelatine. - Case 52/88.



European Court reports 1989 Page 01137

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Opinion of Mr Advocate General Mischo delivered on 11 May 1989. - Claude Brus v Commission of the European Communities. - Officials - Annulment of a decision of appointment. - Case 104/88.



European Court reports 1989 Page 01873

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Opinion of the Advocate-General

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Mr Advocate General Mischo delivered his Opinion on 11 May 1989 . (*) He concluded as follows :

"Since neither of the two submissions made by Mr Brus can be upheld, his application must be dismissed . Pursuant to Article 70 of the Rules of Procedure the parties must bear their own costs ."

(*) Original language : French .
Opinion of Mr Advocate General Lenz delivered on 7 March 1990. - Maizena GmbH v Hauptzollamt Krefeld. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Agriculture - Production refunds - Art. 5a of Regulation (EEC) nº 2742/75 - Isoglucose used in the production of sorbitol. - Case C-18/89.



European Court reports 1990 Page I-02587

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Opinion of the Advocate-General

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Mr Advocate General Lenz delivered his Opinion on 7 March 1990 . (*) He proposed that the Court should rule as follows :

"Article 5a(1 ) of Regulation ( EEC ) No 2742/75, as amended by Regulation ( EEC ) No 1665/77, did not, at the time with which the main proceedings are concerned, preclude the granting of production refunds for products destined for the manufacture of isoglucose, provided that the isoglucose was to be used as an intermediate product, not intended for marketing, in the manufacture of sorbitol ."