ddrg/super_eurlex huggingface dataset:
2.

Judicial proceedings – Intervention – Persons having an interest – Dispute between a Member State and the Commission concerning the validity of a decision on State aid – Application for leave to intervene brought by the undertaking which criticised in a complaint to the Commission the aid which is the subject of the contested decision – Inadmissibility – Observance of the right to effective judicial protection – Refusal by a national court of last instance to request a preliminary ruling from the Court of Justice in respect of the aid in question – Right of the complainant undertaking to intervene before the EU Courts in the light of that decision by the national court – None (Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Statute of the Court of Justice, Art. 40, second para.) (see paras 17-24)
OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 22 NOVEMBER 1979

My Lords,

I do not think it necessary for me in this case to take time to consider my opinion. I so entirely agree with the observations of the Commission that I am content to adopt them as my own.

The questions referred to the Court by the Centrale Raad van Beroep should in my opinion be answered in the manner suggested by the Commission.
OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 8 JULY 1981 ( 1 )

Mr President,

Members of the Court,

This case is not proceeding to judgment on the main issue and under Article 69 (5) of the Rules of Procedure the costs are in the discretion of the Court.

On consideration of the application at the final stage, there remains in fact only a single issue which is the claim that the regulation against which the application was made was adopted without the required consultation of the Parliament. I do not think that that claim is well founded because the Parliament did not express a view on this particular regulation but on the draft of a regulation which was to contain quota arrangements for five years. In my opinion if the Parliament approves more comprehensive fresh arrangements it thereby approves a continuation of the corresponding arrangements hitherto in force.

It is significant that the Parliament which intervened in the first case (Case 138/79 Roquette Frères v Council of the European Communities, judgment of 29 October 1980), has not intervened in this case. I believe too that the Parliament is of the opinion that in the present case its rights have not been infringed.

In my opinion therefore the application is certainly not well founded. I would nevertheless suggest that the Court should provide for the costs to be shared, that is to say, should order each party to bear its own costs.

( 1 ) Translated from the German.
3.

It must immediately be stated that the Government of the Netherlands acknowledges its failure to fulfil its obligations. Nevertheless, it seeks to justify the failure or to minimize its importance in various respects. In particular, it maintains that the “complicated” contents of the directive entail the entire revision of the rules governing loss insurance and thus provide the opportunity to regulate matters outside the aims and the scope of Community law, too. Moreover, the necessity of referring to the legislative process involves the lengthy delays characteristic of parliamentary business. The second argument is that, in practice, the directive is already applied in respect of all the undertakings with head offices in the Netherlands or in another Member State. Indeed, on 17 June 1976 the Verzekeringskamer [Netherlands Institute of Insurance] issued a circular concerning the cases of divergence between the legislation in force and the directive, in which it undertook to apply the latter to undertakings which met the requirements laid down therein. Thus neither foreign nor national companies were put at a disadvantage by the absence of implementation. The third f;round of defence is that certain undamental provisions of the directive and, in particular, those referring to the solvency margin of insurance undertakings, are applied in practice because they have direct effect.
4.

It seems to me necessary to state a premise: the interpretation of the residual heading “Animal products not elsewhere specified or included” in the annex to Regulation No 827/68 must necessarily agree with that of the identical heading in Annex II to the Treaty. That is so both because the two headings are identical and because of the hierarchic relationship between them. In other words: since the regulation is a secondary authority which is based on Title II of the Treaty, its scope cannot exceed that of that title and consequently also that of the provision (like Annex II) to which it refers in order to identify the products subject to it. An interpretation of the heading under the regulation which would bring wool within that heading would therefore be unacceptable if it were necessary to take the view that the corresponding heading of Annex II did not include it. That being so it is necessary to recognize the decisive importance which the case-law of the Court and in particular the judgment of 25 March 1981 in Case 61/80 Coöperatieve Stremsel- en Kleurselfabriek ν Commission [1981] ECR 851 has for the interpretation of Annex II. Let me quote the most important passage for our purposes: “Since there are no Community provisions explaining the concepts contained in Annex II to the EEC Treaty and that annex adopts word for word certain headings of the Customs Cooperation Council Nomenclature, it is appropriate to refer to the said Explanatory Notes in order to interpret that annex.” Do those notes provide useful guidance for the purpose of establishing whether wool must be included in heading 05.15 of Annex II to the Treaty? In my opinion they do. Rule 3 (a) states that “the heading which provides the most specific description must take priority over headings providing a more general description” and, in so doing, implies that if a particular product is referred to in a specific heading of the Brussels Nomenclature it is not possible to regard it as also included in a residual heading. The wording “not elsewhere specified or included” in heading 05.15 must therefore be understood (precisely because of the nomenclature's importance as recognized by the Court for a correct interpretation of Annex II), as meaning that a product can come within this general heading only if it is not included in one of the various specific headings of the same nomenclature. In short the adverb “elsewhere” must refer to the latter and not to the provisions of the Treaty. To answer the question from the Italian court it is therefore sufficient to ascertain whether wool is provided for in a specific heading of the nomenclature. An inquiry shows that it is: Chapter 53 refers precisely to wool. It follows that it falls neither within Annex II to the Treaty nor, by. reason of the hierarchic relationship which I mentioned above, within the scope of Regulation No 827/68.
8.

The Grand Duchy of Luxembourg seeks the sums in question as financing under the common agricultural policy. Article 3 of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy ( 9 ) provides that: “Intervention intended to stabilize the agricultural markets, undertaken according to Community rules within the framework of the common organization of agriculutral markets” will be financed. It is, therefore, clear that the Member State applying for finance must adduce evidence that the conditions for obtaining it are indeed satisfied; such evidence is subject to examination by the Commission, which exercises that right, inter alia, under the clearance procedure provided for in Article 5 (1) (b) of the Regulation No 729/70. An illustration of this obligation is afforded by Article 9 (2) of Regulation No 729/70, which states that: “officials appointed by the Commission ... shall have access to the books and all other documents relating to expenditure financed by the Fund. They may in particular check: ... (b) whether the requisite supporting documents exist and tally with the transactions financed by the Fund.” That amounts to saying that evidence that the expenditure incurred on storage aid was well founded must be provided, not by the Commission but by the applicant Member State. In its reply, the Grand Duchy of Luxembourg offered to “establish what quantities of table wine stored were also marketed as such and are, in any event, eligible for EAGGF aid”. In a letter of 24 November 1983, the Court Registry asked the representative of the Grand Duchy of Luxembourg to furnish any documents that would support its contentions. On 19 January 1984, the latter certified “in writing that the Luxembourg Government has no documents” to forward to the Court. At the hearing on 13 March 1984, the representative of the Grand Duchy of Luxembourg stated that he would not maintain the offer to adduce evidence, which, moreover, had been made entirely in the alternative; that was tantamount to withdrawing it. Accordingly, I consider that, like the principal claim, the claim in the alternative cannot be upheld. My opinion is, therefore, that the application before the Court should be rejected and the Grand Duchy of Luxembourg ordered to pay the costs.
61983C0240

Opinion of Mr Advocate General Lenz delivered on 22 November 1984. - Procureur de la République v Association de défense des brûleurs d'huiles usagées (ADBHU). - Reference for a preliminary ruling: Tribunal de grande instance de Créteil - France. - Free movement of goods - Waste oils. - Case 240/83.



European Court reports 1985 Page 00531
1.

By six interim judgments given on 4 July 1985 in Cases 174, 175, 176, 233, 247 and 264/83, the Third Chamber of the Court ruled on the objections of inadmissibility raised by the defendants and decided to refer the substantive issues to the full Court, in particular the questions whether interest is owed on account of the delay in the payment of the applicants' salaries, the amount of such interest and the date from which interest accrued. The sitting that has just ended has disclosed nothing to cause me to change the views I expressed in the Opinion which I delivered in the aforesaid cases on 31 January 1985. My views are, if anything, confirmed by the useful explanations furnished by counsel for Mr Ammann and others with regard to the Belgian legislation.
3.

According to the Commission the Ministerial Directive of 31 March 1982 and the Bank's Circular No 96/82 established credit terms which discriminated according to the origin of the machinery, giving preference to the marketing of Greek-made machinery. Whilst the measures do not compel the purchaser to choose machinery of national manufacture they strongly encourage him to do so in order to qualify for a loan from the Bank, as the main credit institution in the agricultural sector, and necessarily affect goods which would, but for them, have been imported. Thus, although the measures complained of are not expressed in mandatory terms, they have the effect of restricting trade. They are therefore measures having equivalent effect to quantitative restrictions on imports, which are prohibited by Article 30 of the EEC Treaty. As is attested by the complaints received by the Commission, that conclusion remains valid notwithstanding the inconsistency between the measures complained of and the broader, overriding decisions adopted in 1981 for the purpose of abolishing the scheme set up by Decison 749/70. Similarly, the assertion that most of the machinery used in Greece which qualified for a credit from the Agricultural Bank is imported machinery is, according to the Commission, quite irrelevant. It should be noted that credit is differentiated according to the type of machinery involved. Thus, whilst it may be that in absolute terms foreign-manufactured machinery benefits greatly from Greek bank credits, the fact remains that, wherever a comparable type of machinery is available, a credit policy which differentiates by reference to the origin of the goods is consistently applied. More generally, the Commission takes the view that the specific measures mentioned above are isolated symptoms of continuing discrimination against other agricultural machinery. It alleges that the refusal on the part of the Greek authorities to supply the Commission with the relevant information in this respect has prevented it from identifying precisely the various types of machinery affected. The Hellenic Republic has thus, according to the Commission, failed to fulfil the obligations contained in Article 5 of the EEC Treaty, which requires the Member States to ‘facilitate the achievement of the Community's tasks’, and thereby prevented the Commission from ensuring, in the interests of ‘the proper functioning and development of the Common Market... that the provisions of [the EEC] Treaty ... are applied’ (Article 155 of the Treaty).
5.

By an internal memorandum dated 8 November 1979, the department for which the television studio was intended informed Mr Gibbels that the ‘new covering should be level and without joins and sufficiently strong to bear the weight of cameras and their dollies’. The Commission was therefore aware that it was necessary for the surface to be flat. The only documents made available to the Court which have contractual force are the purchase order of 14 December 1979 and Fadex's tender of 4 December 1979 to which it refers. No mention is made of the requirement in either of those documents and there is nothing to suggest that Fadex was aware of it or even that it should have been. Neither document requires Fadex to carry out the prior preparation of the surface; indeed the only reference to such preparation is the statement that it was for the Commission to carry out the ‘removal of the existing covering’. On the basis of those documents, Fadex was under a duty to supply and to lay a covering. Except in connection with the requirement that the base should be level, which does not seem to have been contractually binding on Fadex, it has not been established or even seriously alleged that the company failed to fulfil that duty correctly. The Commission cannot therefore raise the objection of nonperformance. The Commission should therefore be ordered to pay the applicant the amount claimed, namely BFR 150480 plus interest from 11 June 1980, the date of the formal demand, at the legal rate provided for under Belgian law, which is applicable pursuant to Article 17 of the Commission's General Terms and Conditions.
34.

In particular I find the United Kingdom's view of the context unconvincing; it also uses Article 12 (2) in its arguments, contending that in the event of the Member States resisting the application of Article 10 (2), Article 12 (2) would serve to avoid any financial problems for the Commission and that Article 10 (2) thus constitutes merely a secondary possibility. The very use of the expression ‘if necessary’ in Article 10 (2) militates against the relationship between the two provisions propounded by the United Kingdom and in favour of their being independent of each other, for it is hard to imagine a case of necessity in which the application of Article 12 (2) would be given priority if the Communities' finances were under strain. Furthermore, it is scarcely conceivable that the Community legislature intended to create a system in which recourse to overdrafts, which are problematical for the Community, was the norm and to give it precedence over bringing forward the payment of the Community's own resources. It is therefore much more logical to assume that each of the provisions has its own independent meaning — a view which is also supported by the fact that they form part of different titles of the regulation — that is to say, recourse to Article 10 (2) would, generally speaking, be contemplated in the case of a temporary deficit, whereas Article 12 (2) is designed to resolve relatively long-term structural problems, since it requires the Member States to be informed in advance and, moreover, does not provide for adjustment at a later date as in the case of the second subparagraph of Article 10 (2). That militates against one of the provisions (Article 10 (2)) being restrictively interpreted by reference to the other (Article 12 (2)), and suggests that, on the contrary, it would be appropriate for the two provisions to be given a parallel interpretation with regard to the scope of the Commission's powers.
Opinion of Mr Advocate General Darmon delivered on 14 January 1987. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fufil its obligations - Failure to implement directives. - Case 361/85.



European Court reports 1987 Page 00479



Opinion of the Advocate-General

++++

Mr President

Members of the Court,

1 . The Italian Government does not contest the failure to fulfil its obligations with which it is charged in these proceedings .

Council Directive 79/373 and Commission Directives 80/509, 80/511 and 80/695 deal with the harmonization of national legislation applying to the marketing of compound feedingstuffs . The period prescribed for incorporating those directives into national law expired on 1 January 1981, the Member States being under a duty to inform the Commission forthwith of the measures taken to that end .

To date, as the representative of the Italian Government confirmed at the hearing, the legal instrument implementing those directives in Italy has still not been adopted .

2 . According to an established line of cases of the Court,

"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 ". ( 1 )

3 . I therefore propose that the Court should :

( 1 ) Declare that by failing to transpose the provisions of the aforesaid directives into national law, the Italian Republic has failed to fulfil the obligations set out in Articles 5 and 189 of the EEC Treaty;

( 2 ) Order the defendant to pay the costs .

(*) Translated from the French .

( 1 ) Judgments of 12 October 1982 in Cases 136, 148, 149 and 151/81 (( 1982 )) ECR 3547,3555, 3565 and 3573 .
52.

That is the contention of the Commission, which contests the United Kingdom's view on the basis of the following considerations: (1) in the note of 19 December 1984 addressed to the Advisory Committee there was no question of any innovative decision; all that was intended was to clarify the scope of the contested decision by setting out in detail the interpretation of Decision No 83/621/EEC in accordance with a rule which seemed obvious and, moreover, was used for calculating the flat-rate amounts; (2) as regards the fact that the disputed rule was expressly mentioned only in Decision No 84/429/EEC, the Commission initially put forward an incorrect argument: after claiming that it was the United Kingdom's attitude which had motivated the explicit inclusion of that rule, it conceded — confronted by the United Kingdom's claim that it was unaware of that rule before the adoption of Decision No COM(84) 1076 and that it had notice thereof only after the adoption of Decision No 84/429/EEC — that there was a different reason, namely the manner in which the United Kingdom had submitted its applications for 1984 requesting an amount corresponding to full-time work in respect of schemes creating part-time work and it was thus appropriate to remove any doubts regarding 1985; (3) finally, the Commission pointed out that in the forms provided for in Decision No 84/673/EEC there was already an express requirement that the number of hours worked should be indicated; that in July 1984 (Decision No COM(84) 1076 of 23 July 1984) it had clearly announced its intention to make reductions in respect of part-time work; and that the calculation method, which had been explained to the Member States as early as September 1983, logically followed from the terms of Article 2 of Regulation No 2950/83 which, moreover, did no more in that respect than adopt the same approach as that already adopted in Regulation No 3039/78.
Opinion of Mr Advocate General Darmon delivered on 26 February 1987. - Commission of the European Communities v Kingdom of Belgium. - Failure to comply with a decision concerning a measure for granting aid to a producer of polyproylene fibre and yarn. - Case 5/86.



European Court reports 1987 Page 01773



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

I - 1 . In this action the Kingdom of Belgium is charged with having failed to implement the uncontested decision of 27 June 1984 ( 1 ) by which the Commission of the European Communities declared that aid granted in the form of a participation in the capital of a private undertaking was incompatible with the common market within the meaning of Article 92 of the EEC Treaty .

II - 2 . The dispute is therefore about the way in which that participation is to be repaid . In the written procedure the point was raised whether the necessity to wind up the undertaking concerned meant that it was impossible to implement the Commission' s decision .

3 . As regards that point the Court has held in a similar case that :

"The fact that, on account of the undertaking' s financial position, the Belgian authorities could not recover the sum paid does not constitute proof that implementation was impossible, because the Commission' s objective was to abolish the aid, and, as the Belgian Government itself admits, that objective could be attained by proceedings for winding up the company, which the Belgian authorities could institute in their capacity as shareholder or creditor ". ( 2 )

4 . The Belgian Government took cognizance of the Court' s decision . It had commenced winding-up proceedings but its representative has just informed us at the hearing that a more desirable solution - the buying-back by the undertaking of the Belgian State' s holding - was about to be reached .

5 . Nevertheless, the fact remains that the aid in question has still not been returned . Therefore the Kingdom of Belgium is still in breach of its obligations .

III - 6 . Consequently, I propose that :

( i ) it is declared that, by not complying with the decision ordering the withdrawal of aid granted to an undertaking, the Kingdom of Belgium has failed to fulfil an obligation under Articles 5, 92 and 93 and the fourth paragraph of Article 189 of the Treaty;

( ii ) the defendant State is ordered to pay the costs .

(*) Translated from the French .

( 1 ) OJ L 283, 27.10.1984, p . 42 .

( 2 ) Judgment of 15 January 1986 in Case 52/84 Commission of the European Communities v Kingdom of Belgium (( 1986 )) ECR 89, paragraph 14 .
62.

In support of that conclusion, it is to some extent justified to rely, as a precedent, on the Court's judgment in Ricbez-Parise ( 5 ) which was referred to by the applicants at the hearing. Clearly, it is inappropriate to draw a parallel with that case on every point. The case sub judice is not concerned with the problem of opening a fresh period in order to enable the applicants to exercise a right which they had not asserted because the information they had received from the administration was based on a misinterpretation of the applicable regulations. In that case, the opening of a fresh period was a means used by the Court in order to compensate the applicants (who had applied for an order requiring the Communities to make good the damage suffered) by placing them in the situation in which they would have found themselves were it not for the administration's wrongful conduct. According to the Court that misconduct (‘wrongful act or omission’) did not necessarily consist in the adoption of an incorrect interpretation and in the supply of incorrect information, but rather in the delay in rectifying such information, with the result that, had it not been for that delay, the applicants would have been able to take a decision and assert their rights in due time.