ddrg/super_eurlex huggingface dataset:
4.

The Italian Government does not deny that the ministerial decree is covered by the obligation to provide information laid down in Article 8 of the directive — even though part of the decree was adopted in order to implement a Council directive ( 3 ) — or that the ministerial decree in question was not communicated to the Commission prior to its adoption. ( 4 ) However, the Italian Government has observed that both during the administrative procedure prior to the action and in the application the Commission claimed that in a situation such as this it follows from the directive that the Member State is required to suspend the application of the technical provisions adopted and immediately communicate them to the Commission, so that the ‘new’ rules enter into force only after the information procedure has been carried out, in accordance with the provisions of the directive. The Italian Government does not share the Commission's view as regards the way in which Italy is to remedy the infringement of the directive. It states that Ministerial Decree No 514 replaced technical provisions for engines for pleasure craft which involved technical barriers to trade and that the new regulations were precisely intended to eliminate those barriers, which means that it would be contrary both to the objective of the directive on the procedure for the provision of information and to the rules of the Treaty on the free movement of goods if the failure to communicate the draft of Decree No 514 to the Commission should involve the suspension of the decree. The Italian Government has therefore contended that the application should be declared inadmissible or, in the alternative, dismissed as unfounded.
52.

After examining the memorandum from the Secretary General of 15 October and that from the Director General of 6 November 1990 ( 24 )Court of First Instance took the view that ‘In the present case, the Commission satisfied the requirements imposed on it by the duty to have regard to the interests of officials by clearly indicating to the applicant, by the letter from the Secretary General of 15 October 1990 and the letter of 6 November 1990 from the Director General, that the decision concerning him involved no judgment as to the manner in which he had discharged the duties of Head of Unit VI-BI-4 and that, on the contrary, it was simply a response to the legitimate concern to ensure that an experienced qualified lawyer undertook a first analysis and legal coordination of all the very numerous measures governing the EAGGF. By so doing, the Commission provided the applicant with a document enabling him to counteract, as far as possible, any rumours about him. Thus, the Commission's use of its wide discretion in evaluating the interests of the service on the one hand and those of the applicant on the other remained within proper bounds’. ( 25 )
3.

In its reasoned opinion of 20 November 1991 the Commission set a time-limit of two months for Belgium to comply with its obligations under Directives 90/490 and 90/506. On the expiry of this time-limit, the directives had not been transposed. In the written procedure before the Court of Justice, the Belgian Government stated that the implementing legislation was about to be adopted. However, no notification of the transposition of the directives was received before the end of the written procedure. It is therefore to be assumed that the directives have not been implemented.
OPINION OF ADVOCATE GENERAL

LÉGER

delivered on 18 May 1995 ( *1 )

1. Since the oral procedure has been reopened I am once again as in Case C-68/93 Shevill and Others v Presse Alliance, called on to give an Opinion in the wake of one given by my predecessor.

2. As in that case, my observations will be very brief, endorsing the position taken by Mr Darmon on 21 September 1994. Once again, the provision to be examined is Article 5(3) of the Brussels Convention.

3. The facts are these: Mr Marinari, living in Italy, brought an action for damages before the Tribunale di Pisa against Lloyds Bank, whose employees' conduct had led to his arrest in England and the seizure of promissory notes that he had presented there. Lloyds Bank disputed the jurisdiction of the Italian Court on the ground that the harm had arisen in England: an application was therefore made to the Suprema Corte di Cassazione for a prior ruling on the issue of jurisdiction.

4. The latter court has therefore asked the Court of Justice to interpret Article 5(3) of the Brussels Convention, ( 1 ) in order to clarify whether the expression ‘place where the harmful event occurred’ is to be construed as referring only to the place where physical damage was suffered by persons or things or as also referring to the place where the financial loss suffered by the plaintiff occurred.

5. Mr Darmon suggests ( 2 ) that the place where the financial loss was suffered (Italy, in this case), a loss which is merely incidental to the initial loss suffered in another contracting State (England in the present case), cannot be regarded as conferring jurisdiction within the meaning of Article 5(3).

6. I share that view: as the Court has held, ( 3 ) only two bases of jurisdiction are available: the place where the harmful event occurred and the place where the causative event occurred, but not the place where a harmful event occurred which was incidental to the initial damage. And the judgment of 7 March 1995 in Case C-68/93 Sbevill and Others v Presse Alliance, ( 4 ) delivered after Mr Darmon gave his Opinion, certainly does not undermine that view, since it upholds that twofold possibility, whilst at the same time making it clear that, in cases of defamation by the press, the courts of each contracting State have jurisdiction to deal only with the initial damage caused in the State of the court seised.

7. I thus concur with the terms of the operative part of the Opinion delivered on 21 September 1994.

( *1 ) Original language: French.

( 1 ) As to whether the reference is properly made, see paragraphs 6 to 12 of Mr Darmon's Opinion.

( 2 ) Paragraphs 27 to 49 of his Opinion.

( 3 ) Cases cited in paragraphs 14 to 25 of Mr Darmon's Opinion.

( 4 ) [1995] ECR I-415.
24.

The possibility of making such a choice is made subject, as follows both from the formulation of the heading to Section 3 of Chapter 6 relating to unemployment and the wording of Article 71(l)(b), to the condition that, during the unemployed person's last employment at the end of which he became unemployed, the Member State of his residence was other than the ‘competent State’. The ‘competent State’ within the meaning of that provision is the Member State on whose territory the competent social security body with which the person concerned is insured is situated. ( 16 ) It is that interpretation that the Administrative Commission of the European Communities on Social Security for Migrant Workers adopted in its Decision No 131 of 3 December 1985 concerning the scope of Article 71(l)(b)(ii) of Council Regulation No 1408/71 relating to the right to unemployment benefits of workers, other than frontier workers, who, during their last employment, were residing in the territory of a Member State other than the competent State. ( 17 ) In that decision, the Administrative Commission accepted that ‘the determining factor for the application of Article 71 in its entirety is the fact that the person concerned resided during his last employment in a Member State other than the one to the legislation of which he was subject, which does not necessarily correspond to the one in which he was employed’. That has, furthermore, been confirmed recently by the Court in its judgment in Case C-287/92 Maiüand Toosey, ( 18 ) when it stated that ‘It follows both from the title of the section in Regulation No 1408/71 of which Article 71 constitutes the sole aniele, and from the case-law of the Court, ( 19 ) that the factor that determines whether Article 71 applies at all is the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment.’ Consequently the provision of Article 71 at issue is applicable in every case where the place of residence ( 20 ) is not the same as the place of social security insurance, which is the Member State in whose territory the competent social security institution is situated.
I am accordingly of the opinion that, as I stated in my Opinion of 4 May 1994, the question referred in the present case should be answered as follows:

Community law does not preclude a rule of national law which prevents a national court from taking account of an argument based on Community law unless it has been raised by one of the parties to the proceedings within a specified time-limit, provided that that rule applies without discrimination to similar arguments based on national law and that it does not render excessively difficult the protection of rights guaranteed by Community law.
6.

In its letter of formal notice of 20 May 1992, the Commission not only referred to Directives 89/392 and 91/368 but also complained that six other directives had not been transposed. In its defence, the Italian Republic claims that such an approach by the Commission is likely to cause confusion, whilst Article 169 of the EC Treaty lays down a strictly formal procedure. It is not clear whether the defendant is thereby seeking to cast doubt on the admissibility of the action. If it is, its contention must in any event be unsuccessful. There is nothing to prevent the Commission from pursuing several breaches of the Treaty together in the same infringement proceedings under Article 169. Nor can there be any doubt that the Italian Republic was clear as to the import of the Treaty infringement of which it was accused, as may be seen from the statement in the defence to the effect that the transposition of both the directives in question had been deferred because Directives 93/44 and 93/68 had been adopted in the meantime.
Opinion of Mr Advocate General Lenz delivered on 23 February 1995. - Commission of the European Communities v Kingdom of Belgium. - Failure of a Member State to fulfil its obligations - Directive 91/263/CEE - Failure to transpose. - Case C-218/94.



European Court reports 1995 Page I-01089



Opinion of the Advocate-General

++++

1 In the present proceedings for failure to fulfil Treaty obligations, the Commission claims that the Kingdom of Belgium has failed to meet its obligations under the third paragraph of Article 189 of the EC Treaty and under Article 17 of Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity, (1) through its failure to adopt the legal and administrative measures necessary to comply with that directive. In the alternative, the Commission seeks a declaration by the Court that the Kingdom of Belgium has at least failed to fulfil its obligations under those provisions by not informing the Commission without delay of the measures adopted to that end.

2 Article 17 of Directive 91/263 required Member States to take the measures necessary to comply with the directive not later than 6 November 1992 and forthwith to inform the Commission of those measures.

3 The Kingdom of Belgium does not contest the failure of which it stands accused. It merely points out that it has drawn up provisions for transposing the directive. However, at the relevant point in time - the expiry of the two-month period given to the Kingdom of Belgium in the Commission's reasoned opinion of 7 February 1994 - those draft measures had not yet been adopted by the relevant authorities. So far as can be ascertained, there has been no change in this situation up to the present.

4 In those circumstances I can only propose that the Court should uphold the Commission's main application and order the Kingdom of Belgium to pay the costs of the proceedings.

(1) - OJ 1991 L 128, p. 1.
21.

The criterion of residence as it is used by international tax law is not in itself contrary to Community law. I refer on this point to my Opinion in Schumacker ( 19 ) and to the judgment in that case, in which the Court explained the logic behind the distinction between residents and non-residents: ‘In relation to direct taxes, the situations of residents and of non-residents are not, as a rule, comparable. Income received in the territory of a Member State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence. Moreover, a non-resident's personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is more easy to assess at the place where his personal and financial interests are centred. In general, that is the place where he has his usual abode. Accordingly, international tax law, and in particular the Model Double Taxation Treaty of the Organization for Economic Cooperation and Development (OECD), recognizes that in principle the overall taxation of taxpayers, talcing account of their personal and family circumstances, is a matter for the State of residence. The situation of a resident is different in so far as the major part of his income is normally concentrated in the State of residence. Moreover, that State generally has available all the information needed to assess the taxpayer's overall ability to pay, taking account of his personal and family circumstances.’ ( 20 )
63.

Even if family credit is a social-security benefit, this does not in principle prevent it from also being a working condition within the meaning of Article 5 of the directive. So far as concerns the connection to the exercise of an activity, there is no obvious distinction between a measure which is implemented by an employer because it is prescribed by legislation in favour of an employee and which constitutes a working condition in the opinion of the United Kingdom, and a benefit, such as family credit, which the State itself grants by virtue of a working relationship and which the United Kingdom does not recognize as constituting a working condition. As is clear from the recitals in the preamble to Directive 76/207, working conditions with regard to pay are regulated by Directive 75/117, while other working conditions are intended to be regulated by Directive 76/207. Family allowances for officials also constitute working conditions for the purposes of Directive 75/117. So far as the conditions for the award and payment of such allowances are concerned, no major differences to family credit ought to arise. Both are paid or awarded only where a service or employment relationship exists and only if the recipient has family responsibilities. Consideration of this point makes it possible to regard family credit as a working condition within the meaning of Article 5 of the directive.
1.

By application lodged on 18 August 1994, the Commission seeks a declaration from the Court that the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty by not adopting within the prescribed period the measures necessary to implement Council Directive 91/339/EEC of 18 June 1991 amending for the 11th time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations. ( 1 )
9.

According to the national court, the obligation to exchange driving licences discriminates against nationals of other Member States who have decided to establish themselves in Germany. Even if the exchange of licences is not made subject to any particular condition and amounts to a mere formality, the fact that failure to do so is treated as constituting driving without a licence and is punishable by imprisonment means that the Community national in question runs the risk of acquiring a criminal record. Such a consequence will adversely affect the exercise of his trade or profession and on that ground constitutes a barrier to freedom of establishment. Furthermore, even though the obligation to exchange licences may be justified on objective grounds (for instance, the need to check the authenticity of the licence in question), it none the less constitutes an obstacle to the free movement of persons which must, according to the case-law of the Court, comply with the principle of proportionality. The criminal penalties provided for under the German legislation are, the national court believes, excessive in relation to the gravity of the offence committed.
5.(b)

Where the State does not invoke urgent reasons making it necessary for the technical regulation to be adopted immediately, a standstill period begins to run from notification, during which the Commission and the other Member States can study the draft technical regulation in order to determine whether it is compatible with Community law. If no reaction is forthcoming, that period lasts three months, at the end of which the Member State can adopt the technical regulation. The standstill period lasts 12 months where the Commission notifies the State of its intention to propose the adoption of a Community standard in the field. In this regard, Article 9 of Directive 83/189, also as amended by Directive 88/182, provides: ‘1. Without prejudice to paragraphs 2 and 2(a), Member States shall postpone the adoption of a draft technical regulation for six months from the date of the notification referred to in Article 8(1) if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged must be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods. The Member State concerned shall report to the Commission on the action it proposes to take on such detailed opinions. The Commission shall comment on this reaction. 2. The period in paragraph 1 shall be 12 months if, within three months following the notification referred to in Article 8(1), the Commission gives notice of its intention of proposing or adopting a directive on the subject. 2 (a) If the Commission ascertains that a communication pursuant to Article 8(1) relates to a subject covered by a proposal for a directive or regulation submitted to the Council, it shall inform the Member State concerned of this fact within three months of receiving the communication. Member States shall refrain from adopting technical regulations on a subject covered by a proposal for a directive or regulation submitted by the Commission to the Council before the communication provided for in Article 8(1) for a period of 12 months from the date of its submission. Recourse to paragraphs 1, 2 and 2(a) of this Article cannot be cumulative.’
4.

In those circumstances, I can only propose that the Court declare that, by not implementing within the period prescribed the laws, regulations and administrative provisions necessary to comply with Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity, Ireland has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and under Article 17 of Directive 91/263. I also propose that Ireland be ordered to pay the costs of the proceedings.
Article 1 of Regulation No 1612/68 provides, with regard to access to employment:

‘1. Any national of a Member State shall, irrespective of his place of residence, have the right to take up an activity as an employed person and to pursue such activity within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State.

2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State.’
48.

The tenderers are required to provide proof of their competence in the beef sector to the competent national authorities (Article 3(1)); the tenders are to be submitted in writing to the competent intervention agencies (Article 3(2)); the latter forward them to the Commission (Article 4(1)), then inform all tenderers of the Commission decision on the tenders (Article 4(3)); the tender security is lodged with the intervention agency (Article 3(3)0); again, it is the intervention agency with which the delivery security is lodged (Article 6(3)); and it is the intervention agency which the tenderer informs in writing of the details of the establishment in which the meat is to be processed and from where the delivery of the canned beef is to take place (Article 6(2)); the intervention agency of the Member State in which the processing is carried out (in this case, AIMA) must authorize the successful tenderer (the members of the BECA Group) to take delivery of the meat and de-bone it (Article 6(5)). That authorization is accorded only if the Member State concerned can ensure the necessary control related to the transport and de-boning operations (Article 6(6)). Article 9, a fundamental provision of Regulation No 1582/91, expressly provides that the intervention agencies are to be responsible for the supervision of all movements and operations related to the beef until the canned meat is taken over by the transporter. It also specifies what is meant by supervision (Article 9(2)). Finally, the intervention agency must draw up a report stating the findings of the supervision; the successful tenderer will then be issued with a certificate of conformity (Article 9(3)). A take-over certificate is issued on delivery of the canned produce to the transporter (Article 10). Submission of those two certificates entitles the successful tenderer to be paid by the intervention agency and to have its security returned (Articles 11 and 12).
14.

Reduced to those terms, the question must be answered in the negative. A restriction on imports would clearly run counter to the Treaty if it were based solely on the ground that circumstances such as those constitute unfair competition. It is true that the prevention of unfair competition is one of the grounds recognized by the Court in ‘Cassis de Dijon’ ( 8 ) as justifying restrictions on the free movement of goods. However, the simple answer in the present case is that there is nothing unfair in competition between undertakings if they are both free to import and sell the product in question. If, as the Commission suggests, the effect of the judgment of the Milan Court of Appeal — pending the further appeal to the Corte di Cassazione — was simply that the proprietor of the Italian trade mark was prevented from using it and that other traders were not in principle prevented from selling imported ‘Cotonelle’, it is difficult to see what justification there could be for prohibiting the sale of imported ‘Cotonelle’ by Fransa in the circumstances of the present case since there does not appear to be anything prohibiting Graffione from importing the product itself. Without its being necessary to embark on a discussion about issues of proportionality, it is difficult to see how a restriction on imports can be justified on grounds of fair trading simply because one undertaking has recourse to the possibilities made available by the principle of the free movement of goods, whereas another undertaking refrains from doing so. Moreover the position would be the same even if Graffione were the agent of the Scott group and even if, as a result, it were bound by the order of the Milan court. Even in those circumstances it would not be entitled to prevent a third party which was not bound by the order from importing the products from another Member State merely on the ground of distortion of competition. Distortion of competition in this sense is a purely economic consideration which cannot justify a restriction on imports either under Article 36 or as a mandatory requirement under ‘Cassis de Dijon’. ( 9 )