ddrg/super_eurlex huggingface dataset:
19.

Not only, as I have argued above, would it be wrong in principle to confine the Treaty rules on the free movement of goods to items having a positive value; it would also be difficult to do so in practice. As the Commission points out, no workable distinction can be drawn for the present purposes between recyclable and non-recyclable waste. Both forms of waste may be products with a negative value, since in both cases the generator of the waste may wish to pay to have it taken away, i. e. charge a ‘negative’ price. In the case of non-recyclable waste, the price will of course always be a negative one; but it may also be negative where the waste is recycled, since the proceeds from recycling may not fully cover transportation and reprocessing costs. In some cases waste may be recyclable, but not in fact destined for recycling; and it will be recalled that the decree of the Walloon Regional Executive covers such waste. Whether or not a given quantity of waste is recycled will depend on a number of variable factors, including the current state of technical knowledge, the cost of competing raw materials, the cost of the recycling process itself, and the intentions and capacity of the processor. In my view, therefore, it would be difficult in the extreme to differentiate between these various categories of waste, classifying one as ‘goods’, another merely as an opportunity for the provision of services; and the Court does not in fact appear to have been inclined to draw such a distinction in previous cases involving waste: see Case 172/82 Fabricants Raffineurs d'Huile de Graissage v Inter-Huiles [1983] ECR 555 and Case 240/83 Procureur de la République v ADBHU [1985] ECR 531. (In this connection, the Commission also refers to Joined Cases 372/85 to 374/85 Ministère Public v Traen [1987] ECR 2141 and Joined Cases C-206/88 and C-207/88 Vessoso and Zanetti [1990] ECR I-1461; it does not seem to me however that the scope of the free movement of goods was even indirectly at issue in those cases.)
26.

Accordingly, it certainly cannot be said that, as far as direct imports from nonmember countries are concerned, the tax at issue was prohibited under Community law even at the time of its introduction. Nor, however, is it correct to say that the tax automatically became unlawful when the transitional period expired (that is to say after 31 December 1969; cf. the judgment in Case C-353/89 ( 13 )), as one of the applicants in the main proceedings claimed, relying on the fact that since the transitional period expired commercial policy has been a matter exclusively for the Community, and on Case 41/76, ( 14 ) in which it was pointed out that measures of commercial policy are permissible after the end of the transitional period only if authorized by the Commission (which, however, was not the case for the Italian banana tax). That argument is defeated not only by the wording of Article 113 in which the term ‘based on’ makes it clear that the process involved here is not automatic, but that steps must be taken by the Community (if and to what extent that actually happened will be considered later). It is also quite clear from the relevant case-law (to which I shall return) that pecuniary charges are not to be regarded as measures of commercial policy within the meaning of the judgment in Case 41/76 but that other conclusions regarding such measures are to be drawn from the entry into force of the Common Customs Tariff.
13.

The Commission concedes in the reply, that the amended version of Paragraph 4(1) of the TWV complies formally with the directive. But it states that it cannot regard this branch of the application as settled until Germany undertakes to ensure that the requirements of the directive result in a de facto modification of the practice of the German authorities. According to the Commission, complaints lodged with it about the quality of drinking water in Germany indicate that derogations are granted in breach of the directive. It also states that a recommendation issued by the Federal Office for Public Health shows that derogations have been authorized in circumstances that did not amount to emergencies. The Court put a written question to the Commission, asking it whether it wished to persist with this head of claim, since it recognized that Paragraph 4(1) of the version of the TWV that entered into force on 1 January 1991 complied with the directive. In its reply the Commission gives several reasons for not abandoning this branch of the application. First, Germany has not stated that it interprets the term ‘emergencies’ as covering only unforeseeable events. Secondly, the German authorities continue to grant derogations in circumstances that do not amount to emergencies, as is evidenced by an extract from the ‘Alfterer Nachrichten’ (the journal of the commune of Alfter), according to which a waterworks in Heidgen, which had been allowed to exceed certain MACs from 1 October 1989 to 30 September 1991, was granted an extension of that derogation for a further two years. Thirdly, having regard to the possibility of actions for damages it would be desirable to have a declaration from the Court that the TWV, in the version in force before 1 January 1991, did not accord with the directive. Finally, the Commission considers that it would be equally desirable for the Court to declare that even after that date the directive cannot be regarded as having been properly transposed into national law unless the amendments then introduced entail the necessary consequences in practice.
23.

Italy conte nded, in its application, that the increase from LIT 32 thousand million to LIT 50 thousand million did not represent an increase in the real value of the aid but simply reflected the depreciation of the lira in the intervening period. It annexed to the application a document from the Istituto Nazionale di Statistica which appears to support that argument. The Commission does not deal with the substance of that argument but simply contends that it is inadmissible on the ground that it was never pleaded in the administrative procedure under Article 93(2). However, it should be noted that, according to the contested decision (section II, fifth paragraph), the Italian authorities stated in the course of that procedure ‘that, after five years, it was felt necessary to adapt [“aggiornare” in Italian, the only authentic text of the decision] the original investment ceiling by increasing it to LIT 50 billion in order to make the aid provided for by Article 32 of Law No 219/81 sufficiendy attractive’. The existence of inflation is such a well-known phenomenon that the Commission should have been able to infer from those words, in particular from the term ‘aggiornare’, that the Italian Government's essential argument was that it had done nothing more than index-link the aid scheme. The Commission should therefore have given reasons for not permitting such index-linking in the contested decision. No such reasons are given; instead, the contested decision simply states that ‘other measures, such as the increase in the investment ceiling from LIT 32 billion to LIT 50 billion, would constitute a further exception to the general aid scheme introduced by Law No 64/86’. It follows from the inadequacy of that statement of reasons that the fourth submission must, in my view, succeed.
Opinion of Mr Advocate General Tesauro delivered on 16 January 1992. - Commission of the European Communities v Kingdom of the Netherlands. - Failure of a Member State to fulfil its obligations - Failure to comply with a judgment of the Court. - Case C-75/91.



European Court reports 1992 Page I-00549



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

By judgment of 13 October 1987 (in Case 236/85), (1) the Court declared that, by not adopting within the prescribed period all the laws, regulations and administrative provisions needed to comply with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, (2) the Kingdom of the Netherlands had failed to fulfil its obligations under the EEC Treaty.

In these proceedings the Commission seeks a declaration by the Court that, by failing to adopt the provisions needed to comply with the aforesaid judgment, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 171 of the EEC Treaty.

The Netherlands Government, whilst pointing out that it has prepared a draft law containing the requisite measures, concedes that it has not yet complied with the Court' s judgment.

I therefore propose that the Court should uphold the application and order the defendant to pay the costs.

(*) Original language: Italian.

(1) - Commission v Netherlands [1987] ECR 3989.

(2) - OJ 1979 L 103, p. 1.
4.

Chapter 30 of the Common Customs Tariff covers pharmaceutical products. Headings 30.03 and 30.04 cover ‘medicaments ... for therapeutic or prophylactic uses’. The difference between the two headings is not of decisive importance in this case and it is agreed that it is the interpretation of heading 30.04 which is relevant. Heading 30.04 covers ‘medicaments ... consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale.’ It may be seen from Note 1(a) of the introductory notes to Chapter 30 that it does not cover ‘foods or beverages such as dietetic, diabetic or fortified foods, food supplements, tonic beverages, spa water’. Such products come under other tariff headings which correspond to the description of their objective properties. For example, spirituous beverages designed to maintain general health, according to the Explanatory Notes to the Harmonized System, ( 2 ) come under heading 22.08. That distinction between medicaments and preparations designed to maintain general health defines the field of application of Chapter 30 in relation to the other provisions of the Customs Tariff. It is clear from that distinction that the concept of medicaments within the meaning of the Customs Tariff covers only preparations used for preventing or treating a specific ailment, whilst preparations which, because they aim at maintaining a general state of health, have a wider field of application and whose effect is therefore not clearly defined, fall outside the concept of medicaments. That understanding of the concept of medicaments within the meaning of the Customs Tariff also finds support in the actual wording of heading 30.04. The use of the concepts ‘prophylactic’ and ‘therapeutic’ must lead to the conclusion that the prophylactic or therapeutic effect is well-defined and directed at a given ailment. It is meaningful to speak of a preparation's preventive or curative effect only if the ailment to be prevented or cured is well defined. The question whether a preparation comes under the concept of ‘medicament’ within the meaning of the Customs Tariff therefore depends on whether, from the available scientific information it is well substantiated that the preparation is designed for prophylactic or therapeutic use — that is, whether the ailment for which the preparation is designed is well defined and whether the preventive or curative effect of the preparation is specifically designed for the ailment in question. In deciding that, it is, according to the case-law of the Court, ( 3 ) the objective properties of the product at issue to which importance must be attached. That is in the interests partly of legal certainty and partly of a simplification of customs checks and also allows speedier and more economical administration.
9.

Where the defendant was not duly served with the document which instituted the proceedings, it is clear that service of the judgment itself cannot affect the position. As both the referring court and the United Kingdom Government rightly point out, the judgment cannot be considered the document which instituted the proceedings or an equivalent document for the purposes of Article 27(2). This is evident from paragraph 9 of the judgment in Case 166/80 Klomps v Michel [1981] ECR 1593, where the Court explained that: ‘... Article 27, point 2, is intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised. It follows that a measure, such as the order for payment [Zahlungsbefehl] in German law, service of which on the defendant enables the plaintiff, where no objection to the order is made, to obtain a decision which is enforceable under the Convention, must be duly served on the defendant in sufficient time to enable him to arrange for his defence and accordingly that such a measure must be understood as being covered by the words “the document which instituted the proceedings” in Article 27, point 2. On the other hand a decision, such as the enforcement order [Vollstreckungsbefehl] in German law, which is issued following service of an order for payment and which is itself enforceable under the Convention, is not covered by those words even although [sic] the lodging of an objection against the enforcement order, like the objection to the order for payment, transforms the procedure into adversary proceedings.’
5.

After unsuccessfully lodging an objection with the Oberfinanzdirektion (Principal Revenue Office) Hamburg, Shell instituted proceedings in the national court, claiming that the relevant part of the Hauptzollamt's decision and the decision of the Oberfinanzdirektion should be set aside. It would like simply to describe its shipments of oil products made under the common transit procedure, as was the case hitherto. In Shell's view, Article 11(4) of the Convention confers on the customs office of departure a discretion in individual cases. That possibility of determining the identification measures which are necessary in the light of the particular circumstances of each individual case is nullified, in its view, by the aforesaid act of the Joint Committee. Shell also considers that the obligation to affix customs seals when shipping its products to EFTA countries is disproportionate. As an authorized consignor, the plaintiff is under constant and effective supervision by the customs authorities, which rules out any abuse of the transit procedure. The practice followed hitherto, also under the Community transit procedure, of identification through description in the transit papers has not given rise to any complaints and is sufficient to safeguard the revenue interests of the countries involved in the transit procedure. In contrast, identification by means of sealing involves considerable expenditure in terms of time and labour in carrying out transit operations, especially where inland waterway vessels have to be sealed. This requires each vessel to be secured using forty to sixty seals, entailing hours of work. In Shell's view, customs interests cannot justify those formalities in the case of transit to EFTA countries, whilst, on the basis of the Hauptzollamt's own assessment and administrative practice, the same is not required in the case of transit to Member States of the Community. The Hauptzollamt, and the Oberfinanzdirektion Hamburg which intervened in the main proceedings, have argued before the national courts that the arrangements made by the Joint Committee served to ensure the uniform exercise of discretion in the Contracting States. The arrangement at issue here is necessary in order to guarantee fast and unimpeded border crossings, in particular in view of the heavy traffic through Switzerland and Austria. In their view, the Joint Committee was entitled to make such an arrangement, in view of the fact that it is even empowered to amend the appendices to the Convention.
2.

The complaint under consideration concerns the prohibition laid down in Article 3 of the Decree of 28 January 1987 on the transmission in Flanders, through the intermediary of the operators of cable television networks, of television programmes broadcast by radio and television broadcasting organizations in other Member States if the programme is not in the language or one of the languages of the Member State in which the broadcasting organization is established. That prohibition, which does not apply to programmes produced by Belgian television broadcasters, is considered by the Commission to be incompatible with the rules governing the provision of services. Indeed, the Belgian Government itself does not appear seriously to contest the illegality of the prohibition in question, as it admitted at the hearing that the prohibition, as it is formulated, is formally discriminatory. Moreover, even during the pre-litigation procedure the Belgian Government had notified the Commission of the proposal to amend Article 3 of the Decree of 28 January 1987 in order to extend the prohibition to programmes produced in Belgium and thereby to eliminate the discrimination complained of. It was precisely the amendment in question, which has already been submitted to the Flemish Council for approval but has not yet been adopted, that was debated at length by the parties during the procedure; they nevertheless adopted sharply differing positions as to whether or not such an amendment is capable of terminating the infringement. For the purposes of the present case, it should nevertheless be noted that, taking account of the nature and scope of the procedure under Article 169, the proposed amendment is not relevant to these proceedings, as it is obviously not possible for the Court to express an opinion on the compatibility of a measure that has not yet been adopted or even to rule on an infringement that is still only hypothetical. The observations that follow therefore concern only the disputed measure in its present form.
3.

Counsel for the plaintiffs in the main proceedings in Cases C-140/91 and C-141/91 take the view that that decision was of no significance as regards the questions raised here as they say that the court of reference, in asking about the direct effect of the directive, was not concerned with the detailed arrangements for its application (‘direct’ effect), but with the date of its application (‘immediate’ effect). Although the wording of the question referred to the Court (‘immediatamente’) allows such an interpretation, it cannot be understood from the reasoning of the orders for reference that the court of reference intended to give its question precisely this unusual meaning. In addition the question as to the date of the direct effect of a directive necessarily presupposes that this directive actually has direct effect, in the sense in which the words are usually understood. It should be pointed out that the questions referred to the Court in these cases were raised at a time when the judgment in the Francovich case had not yet been delivered and the question of the direct effect of Directive 80/987 had therefore not been clarified.
OPINION OF ADVOCATE GENERAL

TESAURO

delivered on 3 February 1993 ( *1 )

Mr President,

Members of the Court,

The application which forms the subjectmatter of the present proceedings concerns the Federal Republic of Germany's failure to comply with the Court's judgment in Case 412/85 ( 1 ) of 17 September 1987.

The German Government does not deny the infringement with which it is charged, and wishes only to state that the legislative amendments necessary to ensure full compliance with the judgment have now been finalized and are expected to enter into force shortly.

In the light of the foregoing I propose that the Court allow the application and order the defendant to pay the costs.

( *1 ) Original language: Italian.

( 1 ) Commission v Germany [1987] ECR 3503.
14.

So far as concerns the structure, in particular, the Commission maintains in its observations — in order to demonstrate that the regulation clearly does not contain tariff preferences valid for (practically) all textile products — that many textile products other than men's linen windcheaters are excluded from both Annex I and Annex II. In response to the Court's request that it give some examples, the Commission was able to name only the products designated by Nimexe codes 50.01 and 50.02, specifically ‘silkworm cocoons suitable for reeling’ and ‘raw silk (not thrown)’. In my view, those examples are not of such a kind as to detract from the generalized nature of the tariff preferences for textile products decided upon in the regulation. In Regulation No 3529/84, the Nimexe codes for ‘textiles and textile articles’ are set out in Section XI. ( 13 ) That section contains in all just over 1000 codes, from code 50.01 to the 63.02 codes. Amongst those thousand or so codes, the Commission has found two, namely the first two, which are not referred to in the annexes to the regulation which has to be interpreted. As a result of a quick search, I discovered a further six codes, namely the third and fourth (the 50.03 codes for ‘silk waste’) and the last four (the 63.02 codes for ‘used or new rags, scrap twine, cordage, rope and cables and worn out articles of twine, cordage, rope or cables’). It would seem — and the Commission did not deny this at the hearing — that virtually all of the 1000 codes in between are in fact included in the annexes to the regulation. As is clear from the product designations, the aforesaid eight exceptions relate to products which can hardly be regarded as ‘textile products’, ( 14 ) or which are in any event atypical: they are raw materials or waste products. All the typical textile products to which most of the thousand other codes apply would appear, on the other hand, to be covered by the regulation.
2.

The Oberfinanzdirektion Berlin considered that such a piece of apparatus should be classified under subheading 90308190, which includes (other) apparatus for measuring electrical quantities. The technical structure of the recorder and, in particular, the adjustment of values carried out by the converter, makes it a true instrument of measurement. The applicant in the main proceedings, Astro-Med GmbH, is of a different opinion. It considers that the apparatus in question does not actually carry out any measurements within the meaning given to this expression in the Common Customs Tariff, but simply renders quantities which have already been measured visible by a process of thermoprinting. Moreover, these quantities may be of very different kinds, given that the recorder may be connected to different instruments of measurement. According to Astro-Med, the thermorecorder should be classified under heading 8479 of the Combined Nomenclature which covers ‘machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter’, that is Chapter 84.
5.

Secondly, and without its being necessary for the Court to consider the possible impact of Directive 92/5/EEC on the provisions of the directive at issue, suffice it to observe that Directive 92/5/EEC had not yet been adopted when the time-limit for the entry into force of the 1988 directive expired. The 1988 directive should therefore have been transposed no later than the date prescribed and it is not possible effectively to rely upon the fact that subsequent legislation was adopted in order to justify any failure to fulfil obligations in respect of the 1988 directive.