ddrg/super_eurlex huggingface dataset:
Opinion of Mr Advocate General Alber delivered on 11 December 1997. - Commission of the European Communities v Italian Republic. - Failure to fulfil obligations - Failure to transpose Directive 94/2/EC. - Case C-139/97.



European Court reports 1998 Page I-00605



Opinion of the Advocate-General

A - Introduction

1 In the present proceedings brought against the Italian Republic for failure to fulfil obligations, the Commission requests the Court to:

1. declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 94/2/EC (1) of 21 January 1994 implementing Council Directive 92/75/EEC with regard to energy labelling of household electric refrigerators, freezers and their combinations, or at least by failing to notify those measures, the Italian Republic has failed to fulfil its obligations under that directive;

2. order the Italian Republic to pay the costs.

B - Analysis

2 Member States were required under Article 4 of Directive 94/2/EC to adopt and publish the provisions necessary to comply with the Directive by 31 December 1994 and forthwith to inform the Commission thereof. Those provisions were to be applied from 1 January 1995.

3 It is common ground that those provisions were not adopted.

4 In its defence, the Italian Government submits that the laws, regulations and administrative provisions necessary to transpose the basic Council Directive 92/75/EEC (2) of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances have not yet been adopted in domestic law, and that consequently it has also not been possible to adopt the implementing provisions.

5 Under Article 14 of Directive 92/75/EEC, the necessary laws, regulations and administrative provisions were to be adopted by 1 July 1993 in order that the provisions could become applicable by 1 January 1994 at the latest.

6 Failure to ensure the transposition of the basic provisions cannot provide justification for a subsequent failure to fulfil obligations in regard to the transposition of implementing provisions. The Commission's action must for that reason be treated as well founded.

Costs

7 The unsuccessful party must be ordered to pay the costs in accordance with Article 69(2) of the Rules of Procedure.

C - Conclusion

8 I propose that the Court rule as follows:

(1) By failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 94/2/EC of 21 January 1994 implementing Council Directive 92/75/EEC with regard to energy labelling of household electric refrigerators, freezers and their combinations, the Italian Republic has failed to fulfil its obligations under that directive;

(2) The Italian Republic is ordered to pay the costs of the proceedings.

(1) - OJ 1994 L 45, p. 1.

(2) - OJ 1992 L 297, p. 16.
((Appeal – Competition – Article 65(1) of the ECSC Treaty – Normal competition – Exchange of information – Abuse of discretionary power – Joint and several liability – Adoption of a decision by the Commission – Composition of the Chamber – Decision on costs – Duration of proceedings))
((Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Article 7 of Regulation (EEC) No 1612/68 – Freedom of movement for workers – Obstacle – Personal allowances – Restriction on the taking into account of the taxpayer's personal and family circumstances in the State of residence – Not permissible))
((Failure by a State to fulfil obligations under the Treaty – Articles 23 and 25 EC – Charges having equivalent effect – Basel Convention – Regulation (EEC) No 259/93 – Transfrontier shipments of waste – Return of consignment to the Member State – Contribution to a Solidarity Fund))
((Appeal – Regulations (EC) Nos 2352/97 and 2494/97 – Specific measures in respect of imports of rice originating in the OCT – Admissibility – Fourth paragraph of Article 230 EC – Legal person individually concerned))
((Articles 28 EC and 30 EC - National legislation providing that bread obtained by final baking of part-baked bread, whether or not deep-frozen, must be packaged prior to sale - Bread lawfully produced in another Member State))
((Failure by a Member State to fulfil its obligations – Free movement of goods – National legislation listing exhaustively the substances with a nutritional purpose which may be added to foodstuffs – Measure having equivalent effect to a quantitative restriction – Justification – Protection of public health – Proportionality – Mutual recognition))
((Regulation (EEC) No 1768/92 – Supplementary protection certificate for medicinal products – Transitional provision – Legal consequences in the event of non-compliance))
((Questions referred for a preliminary ruling under Article 35 TEU – Schengen Acquis – Convention implementing the Schengen Agreement – Interpretation of Article 54 – Ne bis in idem principle – Scope – Discontinuance of criminal proceedings as a consequence of a settlement procedure))
(((a) Validity of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products – Choice of legal basis (b) Interpretation of Article 7 of Directive 2001/37 – Whether applicable only to tobacco products placed on the internal Community market – Whether applicable to tobacco products packaged within the Community and destined for exportation to non-member countries))
((Failure by a Member State to fulfil its obligations – Directive 92/50/EEC – Public service contracts – Failure to issue a Community-wide invitation to tender for contracts for the treatment of waste water and refuse disposal – Legal interest – Admissibility – Environmental criteria – Principle of proximity))
((Failure of a Member State to fulfil obligations – Directive 98/81/EC – Failure to transpose within the prescribed period))
((Appeal against the judgment the Court of First Instance (Fifth Chamber) of 16 January 2001 (T-97/99 and T-99/99 O'Hannrachain and Chamier v Parliament) dismissing an application for annulment of the decision appointing Mr Lopez Veiga to the post of Director-General of the Directorate-General for Finance and Financial Control and for compensation for the damage allegedly arising from the decision not to appoint the appellant to the post in question))
((Failure of a Member State to fulfil obligations – Directive 96/29/Euratom – Protection of workers and the general public against the dangers arising from ionizing radiation – Failure to transpose within the prescribed period))
((Article 49 EC – Occupational pension insurance – Differences in tax treatment between insurance policies taken out with insurance companies established in the home Member State and those taken out with insurance companies established in another Member State))
((Council Directive 80/987/EEC – Article 9 – Guarantees in respect of claims for unpaid wages – National provision imposing a time-limit of two months for bringing claims for payment and the possibility of extending this time-limit))
((Failure by a Member State to fulfil its obligations – Internal market – Directive – Failure to implement in respect of the territory of Gibraltar – Applicability of the EC Treaty and of secondary legislation to that territory))
((Air transport – Access to the groundhandling market in Community airports – Directive 96/67/EC – Article 16 – Collection of a fee for access to airport installations – Conditions))
((Failure of a Member State to fulfil its obligations – Article 28 EC – Marketing ban for products lawfully produced and marketed in other Member States under the name of limpiador con lejía(cleaning product containing bleach) where active chlorine content is less than 35 g per litre))
((Interpretation of Articles 48 and 52 of the EEC Treaty (subsequently Articles 48 and 52 of the EC Treaty, now, after amendment, Articles 39 EC and 43 EC), Article 67 of the EEC Treaty (subsequently Article 67 of the EC Treaty, repealed by the Treaty of Amsterdam), Articles 6 and 8a of the EC Treaty (now, after amendment, Articles 12 EC and 18 EC) – Directive 90/364/EEC – Directive 88/361/EEC – Inheritance tax – Requirement of cross-border economic activity – Prohibition of discrimination on the basis of Member State of residence))
((Trade Mark Directive – Article 3(1)(b), (c) and (e) – Three-dimensional trade mark consisting of the packaging of goods which are normally traded in packaged form))
A – Community liability in respect of the period following the sale of the initial SLOM holding (first ground of appeal)
((Failure of a Member State to fulfil its obligations – Conservation of wild birds – Implementation of the duty to report pursuant to Article 12(1) of Directive 79/409/EEC))
((Failure by a Member State to fulfil its obligations – Directive 98/83/EC – Quality of water intended for human consumption))
((Interpretation of Article 39 EC – Masters of vessels used in small-scale maritime shipping – Small fishing vessels – Nationality requirement – Employment in the public service))
((Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – Habitat of the corncrake – Special protection area – Project not connected with management of the site – Assessment of implications for the site – Need to ascertain that the project will not adversely affect the integrity of the site – Not ascertained))
(Social security for migrant workers – Austrian compensatory supplement to insufficient old-age pensions – Classification of the benefit and lawfulness of the residence requirement from the point of view of Regulation (EEC) No 1408/71 – Special non-contributory benefit)
(Directive 69/335/EEC – Indirect taxes on the raising of capital – Tax on stock exchange transactions – Tax on the delivery of bearer securities)
(Failure of a Member State to fulfil its obligations – Failure to transpose Directive 98/10/EC – Telecommunications – Concept of itemised billing)
(Interpretation of Articles 18 EC, 39 EC, 43 EC and 49 EC, and of Article 7(7) of Council Regulation No 1612/68 on freedom of movement for workers within the Community and of Council Directive 90/364/EEC on the right of residence – Right of residence of a person who does not have sufficient resources and who works for some 30 hours a week at a hostel (in this case, a Salvation Army hostel) in return for benefits in kind that cover his living expenses in the hostel itself – Right of such a person to assistance from public funds)
(Social policy – Work on demand – Non-discrimination against part-time workers – Same working conditions for male and female workers – Community Charter of the Fundamental Social Rights of Workers – Interpretation of national law in accordance with directives before expiry of the time-limit for transposition)
(Appeal – Community trade mark – Article 7(1)(b) of Regulation No 40/94 – Three-dimensional shapes of torches – Distinctive character)
(EEC-Turkey Association Agreement – Article 7, first paragraph, of Decision No 1/80 of the EEC-Turkey Association Council – Scope – Child who was born and has always lived in the host Member State – Right of residence of the child of a Turkish worker who has reached majority – Custodial sentence for a criminal offence – Conditions of an expulsion order – Article 14 of Decision No 1/80 – Whether the national court may take into account favourable changes in the behaviour of the person concerned after the expulsion order was issued)
(Article 18 EC – Directives 73/148/EEC and 90/364/EEC – Minor who is a national of a Member State – Right of residence in another Member State – Right of the mother, who is a national of a non-member country, to reside in that Member State – Discrimination on grounds of nationality)
(Appeal – Article 86(3) EC – Refusal to take action on a complaint – Admissibility – Nature and extent of judicial review)
(Protection of the environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – Exemption, while the overall proportion of reusable bottles exceeds 72%, from the obligation to charge a deposit on non-reusable bottles, by participating in a comprehensive packaging management system – Loss of this option, when the proportion falls below that figure, for operators in drinks sectors in which the proportion of reusable bottles does not reach the 1991 level)
(Failure to fulfil obligations – Freedom to provide services – Requirements imposed on undertakings of another Member State temporarily posting workers who are nationals of non-member countries)
(Appeal against a judgment of the Court of First Instance – Fisheries – EEC-Argentina Agreement – Community financial assistance – Reduction – Legal certainty – Force majeure – Obligation to provide information and act in good faith)
(Trade marks – Directive 89/104/EEC – Article 7(1) – Exhaustion of rights conferred by the trade mark – Putting on the market in the EEA by the trade mark proprietor – Time and function of putting on the market)
(Free movement of capital – Indirect taxation – Tax on the raising of capital – Directive 69/335/EEC – Scope – Securities market – Companies authorised to deal on that market – Annual levy calculated on gross profits, the aim of which is to finance the public supervisory body for the securities market)
(Freedom to provide services – Right of residence – Tourist national of another Member State – Requirement to present a valid identity card or passport – Discrimination on grounds of nationality – Detention order for the purpose of deportation)
(Article 23 of the Partnership and Cooperation Agreement between the EC and the Russian Federation – Freedom of movement for workers – Limit on the number of players from countries outside the EEA – Football)
(Equal treatment for men and women – Pregnancy-related illness – Period of absence due to incapacity for work caused by a pregnancy-related illness set against the period of entitlement to sick leave – Working conditions – Directive 76/207/EEC – Discrimination)
10.

The referring court is uncertain whether the annual duty is compatible with Directive 2008/7 ( 9 ) and has therefore stayed the proceedings in order to refer the following questions to the Court: ‘Are the criteria for determining the annual duty referred to in Article 18[1](b) of Italian Law No 580 of 29 December 1993, as provided for in Article 18(3), (4), (5) and (6) thereof, inconsistent with Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital, in so far as the duty cannot be covered by the exceptions provided for in Article 6[1](e) of that directive? In particular: (a) Does the annual duty, which is to be determined by reference to “the budgetary resources needed in order for the chambers of commerce system to be able to carry out the services which it is under a duty to provide throughout the national territory”, constitute a duty paid by way of fees or dues? (b) Does the provision for a “balancing fund”, which is intended to harmonise throughout the national territory the performance of all the “administrative functions” entrusted by law to the chambers of commerce, preclude the possibility that the annual duty is a duty paid by way of fees or dues? (c) Is the power conferred on the individual chambers of commerce to increase the amount of the annual duty by up to 20% for the purposes of cofinancing initiatives aimed at increasing production and improving the economic conditions of the territorial unit under their responsibility consistent with that annual duty being a duty paid by way of fees or dues? (d) Does the fact that no methods have been specified for determining the total budgetary requirements for the maintaining and the updating by the chambers of commerce of registrations and notes in the register of companies mean that the annual duty cannot be a duty by way of fees or dues? (e) Is the fact that the annual duty is determined on a flat-rate basis, with no provision for checking at “regular intervals” that it appropriately reflects the average cost of the service, consistent with the annual duty being a duty by way of fees or dues?’
19.

In its defence, the Luxembourg Government takes the view that, even though the national legislation in force was consistent with the wording and the spirit of Directive 2001/14, it was nevertheless adapted, after the present action was brought, in such a way as to eliminate any doubt as to possible non-conformity with EU law. Thus, the network statement was amended to the effect that, in the event of disruption, the reallocation of train paths is also transferred to the ACF. ( 8 ) In its rejoinder, the Luxembourg Government claims that the network statement was amended again (with effect from 1 January 2012) and that it now satisfies the Commission’s requirements, by providing that, in the event of unforeseen disruption, new train paths are allocated by the ACF. ( 9 )
5.

Article 52(1) of Directive 2004/18 titled ‘Official lists of approved economic operators and certification by bodies established under public or private law’ provides that: ‘Member States may introduce either official lists of approved contractors, suppliers or service providers or certification by certification bodies established in public or private law. Member States shall adapt the conditions for registration on these lists and for the issue of certificates by certification bodies to the provisions of Article 45(1), Article 45(2)(a) to (d) and (g), Articles 46, Article 47(1), (4) and (5), Article 48(1), (2), (5) and (6), Article 49 and, where appropriate, Article 50. Member States shall also adapt them to Article 47(2) and Article 48(3) as regards applications for registration submitted by economic operators belonging to a group and claiming resources made available to them by the other companies in the group. In such case, these operators must prove to the authority establishing the official list that they will have these resources at their disposal throughout the period of validity of the certificate attesting to their being registered in the official list and that throughout the same period these companies continue to fulfil the qualitative selection requirements laid down in the Articles referred to in the second subparagraph on which operators rely for their registration.’
5.

Article 26 of the Sixth VAT Directive, entitled ‘Special scheme for travel agents’, provides: ‘1. Member States shall apply [VAT] to the operations of travel agents in accordance with the provisions of this Article, where the travel agents deal with customers in their own name and use the supplies and services of other taxable persons in the provision of travel facilities. This Article shall not apply to travel agents who are acting only as intermediaries and accounting for tax in accordance with Article 11A(3)(c). In this Article travel agents include tour operators. 2. All transactions performed by the travel agent in respect of a journey shall be treated as a single service supplied by the travel agent to the traveller. It shall be taxable in the Member State in which the travel agent has established his business or has a fixed establishment from which the travel agent has provided the services. The taxable amount and the price exclusive of tax, within the meaning of Article 22(3)(b), in respect of this service shall be the travel agent’s margin, that is to say, the difference between the total amount to be paid by the traveller, exclusive of value added tax, and the actual cost to the travel agent of supplies and services provided by other taxable persons where these transactions are for the direct benefit of the traveller. 3. If transactions entrusted by the travel agent to other taxable persons are performed by such persons outside the Community, the travel agent’s service shall be treated as an exempted intermediary activity under Article 15(14). Where these transactions are performed both inside and outside the Community, only that part of the travel agent’s service relating to transactions outside the Community may be exempted. 4. [VAT] charged to the travel agent by other taxable persons on the transactions described in paragraph 2 which are for the direct benefit of the traveller shall not be eligible for deduction or refund in any Member State.’
36.

By the first ground of appeal, the Commission seeks to demonstrate a lack of jurisdiction on the part of the General Court, procedural irregularities adversely affecting the Commission’s interests, infringement of the principle that the subject-matter of an action is defined by the parties (the ‘principe dispositif’), and breach of Article 21 of the Statute of the Court of Justice of the European Union and of Articles 44(1) and 48(2) of the Rules of Procedure of the General Court, and, in the alternative, a defective statement of reasons. The second ground of appeal alleges a lack of jurisdiction on the part of the General Court, infringement of Articles 87(1) EC and 88 EC and of Article 61, second paragraph, of the Statute of the Court of Justice, and procedural irregularities adversely affecting the Commission’s interests. By its third ground of appeal, the Commission seeks to demonstrate that Articles 87 EC and 88 EC and the principle of institutional balance have been infringed and the fact that the General Court committed errors in law in determining the respective areas of competence of the Council and the Commission as well as in determining the relationships between fiscal harmonisation and the monitoring of State aid. In the fourth ground of appeal, the Commission claims that the General Court interpreted Decision 2001/224 incorrectly and infringed the rules concerning the interpretation of the acts of the EU institutions. Lastly, the fifth ground of appeal relates, on the one hand, to the infringement of the principles of legal certainty, of the presumption of legality attaching to EU measures, and of sound administration, and, on the other hand, to a defective statement of reasons.
6.

Article 14 of that regulation, entitled ‘Service without proof of receipt by the defendant’, provides as follows: ‘1. The European order for payment may also be served on the defendant in accordance with the national law of the State in which service is to be effected, by one of the following methods: (a) personal service at the defendant’s personal address on persons who are living in the same household as the defendant or are employed there; (b) in the case of a self-employed defendant or a legal person, personal service at the defendant’s business premises on persons who are employed by the defendant; (c) deposit of the order in the defendant’s mailbox; (d) deposit of the order at a post office or with competent public authorities and the placing in the defendant’s mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the notification as effecting service and setting in motion the running of time for the purposes of time-limits; (e) postal service without proof pursuant to paragraph 3 where the defendant has his address in the Member State of origin; (f) electronic means attested by an automatic confirmation of delivery, provided that the defendant has expressly accepted this method of service in advance. 2. For the purposes of this Regulation, service under paragraph 1 is not admissible if the defendant’s address is not known with certainty. 3. Service pursuant to paragraph 1(a), (b), (c) and (d) shall be attested by: (a) a document signed by the competent person who effected the service, indicating: (i) the method of service used; and (ii) the date of service; and (iii) where the order has been served on a person other than the defendant, the name of that person and his relation to the defendant; or (b) an acknowledgement of receipt by the person served, for the purposes of paragraphs (1)(a) and (b).’