ddrg/super_eurlex huggingface dataset:
10.

In that connection, I would observe first of all that the fact that a national broadcasting organization contributes to the creation of, and maintains (significant) interests in, a television company established abroad, but broadcasting mainly towards the Netherlands, cannot be regarded as having no impact on the balance created by the Mediawet as between the various broadcasting organizations. Indeed, in such a situation the broadcasting organization in question will de facto have more broadcasting time than has been assigned to it — the time allocated is based on the number of members of each organization and is intended to ensure that all the social components are represented. Moreover, the other organizations will be placed at a disadvantage from the point of view of financing, as regards the part deriving from advertising revenue: and that seems to me not to be permissible, having regard to the particular financing arrangements of a system like the Dutch one. The activities undertaken by Veronica, viewed as a whole, are thus liable to undermine the pluralism which the law at issue was designed to safeguard. Against that background it is appropriate to refer to the line of decisions of the Court, starting with the judgment in Van Binsbergen, ( 11 ) according to which ‘a Member State cannot be denied the right to take measures to prevent the exercise by a person providing services whose activity is entirely or principally directed towards its territory of the freedom guaranteed by Article 59 for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that State’. Similarly, in my opinion a Member State which has imposed the requirement on broadcasting organizations to observe certain conditions intended to safeguard pluralism must have the right to adopt provisions designed to ensure that such organizations cannot compromise the pursuit of that aim by setting up in another Member State or by making a significant investment in a station which is established in another Member State but is intended to broadcast, in particular, to the State in question. The prohibition of undertaking activities of the kind at issue in this case is not only necessary in order to safeguard the pluralism of the broadcasting system but is also proportionate in relation to the aim pursued, it not having been shown that such a result could be attained by less restrictive rules.
2.

It should be noted at the outset that starches are in principle classified in Chapter 11 of the Combined Nomenclature (products of the milling industry: malt, starches, inulin, wheat gluten) and that potato starch as such is mentioned more particularly in subheading No 1108 13 00. However, note 1(b) to the chapter in question states that it does not cover prepared flours, meals or starches of heading No 1901, so that it is necessary, by way of preliminary, to ascertain whether the product in question might be classifiable under the latter heading. In that connection, help may be available from the explanatory notes on the harmonized system, ( 1 ) according to which heading No 1901, relating in particular to food preparations based on starch not specified or included elsewhere, covers a number of food preparations with a basis of flour or meal, starch or malt extract, which derive their essential character from such materials. Those preparations, the explanatory notes go on to say, are often used for the rapid preparation of beverages, gruels, infant foods and dietetic foods, and may also constitute intermediary preparations for the food industry. Whilst it is true that the physical characteristics of the product in question are no obstacle to its classification under heading No 1901, it should nevertheless be noted that that heading appears to relate specifically to products intended for the food industry, whilst the amylaceous mixture at issue, although in principle fit for human consumption, does not in fact appear to be intended for that purpose and the national legislation even seems to prohibit its marketing as a foodstuff.
53. (aa)

I share the applicant's doubts regarding even the condition in the first indent. The figure relating to total domestic consumption, the starting-point for the Commission's calculation, ( 52 ) contains two essential factors which, it is established, are based on statistics not derived from administrative documents and which cannot be verified without unconscionable effort. They therefore inevitably show a margin of error. The data in question relate to the quantities of cereals used in the manufacture of animal feed and for human consumption. Perhaps some details should be provided of the first-mentioned amount, which occupies a prominent place in the Commission's submissions. In the Commission's own words, this item is made up of sub-item ‘feed processing industry’ (which accounts for by far the greatest part of the quantities used in the manufacture of animal feed and is subjected to the co-responsibility levy) and sub-item ‘used as animal feed by the producer’ (which is exempt from the levy). The Commission did not deny that the first-mentioned sub-item is based on information from FEFAC, which is taken partly from the — indisputably unreliable ( 53 ) — cereals balance sheets and partly from estimates provided by individual national associations. The item ‘used as animal feed by the producer’ cannot, as the Commission itself states, be determined by reliable statistics; it can only be roughly estimated, as the applicant maintains. ( 54 ) The Commission therefore expressed it as a balance between the overall item ‘animal feed’ and the sub-item ‘feed processing industry’. The Commission explained at the hearing that the overall figure for ‘animal feed’ was derived from the information which the Netherlands had sent to EUROSTAT. On the other hand, it was not made clear how the Netherlands might have reliably determined that amount in respect of the part ‘used as animal feed by the producer’. It is therefore by no means impossible — and it is just as likely as the contrary assumption — that the quantities used as feed by the producer are greater than assumed, as the Netherlands asserted before these proceedings, ( 55 ) reducing other quantities which are subject to the co-responsibility levy. Lastly, it emerged in the present proceedings that the foreign trade statistics for the Netherlands used by the Commission do not provide reliable information as to the year of import or export: those statistics are inaccurate as regards the dates of individual transactions, because delays occur in the registration of those transactions by the Netherlands authorities. The Commission itself concedes that that circumstance might explain the missing quantity in issue in whole or in part.
10.

I cannot see any reason to depart from the Court's existing case-law in the circumstances alluded to by INAMI. There is nothing in the present case to justify a result different from that reached in previous cases, in particular Ravida and Cassamali. In my Opinion in the latter case I made the following comments (paragraph 12): ‘The scheme of Article 51 of Regulation No 1408/71 is to distinguish between two situations: (i) index-linked adjustments and (ii) adjustments due to a change in the method of calculation. In the latter situation a complete recalculation takes place. In the former situation a fixed percentage or amount is added to the benefits hitherto payable and, apart from that adjustment, no recalculation takes place. Article 51 does not envisage a third possibility whereby an index-linked increase in one Member State may be taken into account in another Member State for the purposes of a national rule against the overlapping of benefits. Article 51(1) lays down the principle of the autonomous development of social security benefits. Once benefits have been calculated in accordance with Article 46, they develop autonomously in each of the Member States concerned; an adjustment in one Member State does not affect the benefit paid in the other. Article 51(2) lays down an exception to the principle where there are changes in the method of calculating benefit. That exception is necessary because the effect of such changes might be to put the person concerned in a position where a different formula would be more favourable to him. In this regard, it must be remembered that Article 46 has consistently been interpreted by the Court as entitling the individual to the application of either the whole of national legislation or the whole of Community legislation, including their respective rules against overlapping, whichever is more favourable (see, for example, Case 22/77 FNROM v Mura [1977] ECR 1699). It is unlikely that the circumstances referred to in Article 51(1), i. e. an adjustment of benefits due to an increase in the cost of living or in the level of wages or salaries, would affect the outcome of the comparison between the two alternatives.’
5.

On several occasions the Court has stated the criteria for applying Article 92 et seq. to systems of parafiscal charges designed to finance the granting of aid to domestic products liable to the charge. In this regard I shall confine myself to recalling that in the Lornoy judgment the Court reaffirmed that: ‘a parafiscal charge of the kind at issue in the main proceedings may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, it being understood that such an assessment is a matter for the Commission in accordance with the procedure laid down for that purpose in Article 93 of the Treaty. In that respect, regard must also be had to the jurisdiction of the national courts where, in introducing the charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty has found the levying of the charge as a method of financing State aid to be incompatible with the common market.’ I consider that an identical reply can be given in the present case, especially in view of the fact that it is common ground that the disputed charge was correctly notified, so that no infringement of Article 93(3) occurred and, moreover, that at the material time the Commission had not adopted a decision finding the charge in question, as a method of financing an aid scheme, to be incompatible with the common market; indeed, as stated at the hearing, the Commission confined itself to assessing the Law on the German Fund from the point of view of the Community system of aid and reached the conclusion that, from that perspective, the Law in question did not at the time appear to be incompatible with the common market. I therefore consider that in the present case it can be stated that the levying of a parafiscal charge in order to finance aid is not contrary to the Community system of State aid if the national authorities have notified the Commission of the aid and of the charge to finance it and if the Commission has not adopted a decision finding the charge, as a method of financing the aid, to be incompatible with the common market.
15.

As the Court held in the judgment in BRT v SABAM, ( 17 ) the provisions of Articles 85(1) and 86 are directly applicable and hence are applicable by the national courts. However, the power to declare the prohibition laid down by Article 85(1) inapplicable in a given case pursuant to Article 85(3) is reserved to the Commission under Article 9(1) of Regulation No 17. Exemption may be granted only if the agreement was previously notified to the Commission, unless it falls within the categories of agreements mentioned in Article 4(2) of the regulation. In its judgment in Delimitis, the Court of Justice gave some indications as to how a national court should proceed in such cases. ( 18 ) If the agreement's incompatibility with Article 85(1) is beyond doubt and, regard being had to the block exemption regulations and the Commission's previous decisions, the agreement may on no account be the subject of an exemption decision under Article 85(3), the national court may continue the proceedings and rule on the agreement in issue. If, in contrast, the national court finds that the contract at issue satisfies the formal requirements for exemption and considers that the agreement may be the subject of an exemption decision by the Commission, it should take steps to avoid the risk of conflicting decisions. In the Court's view, in such cases the national court may perhaps stay the proceedings in order to ascertain the Commission's view or to seek information from the Commission on the state of any procedure which it may have set in motion. In this connection, attention is drawn once again to the Commission's notice describing details of this collaboration between the national courts and the Commission. ( 19 ) Of course, the national court remains at liberty to suspend the proceedings and seek a further preliminary ruling from the Court pursuant to Article 177 of the EEC Treaty.
6.

In support of its contention, the Commission argues that, according to the Court's case-law, Member States are required to transpose directives into national law in such a way that individuals can ascertain the full extent of their rights and, where appropriate, rely on them before national courts. ( 3 ) The two directives at issue in this case are designed precisely to make it possible for individual suppliers and undertakers to rely on the rules in the directives relating to the award of contracts as against the public awarding authorities and, if necessary, to pursue a breach of those rules before the national courts. Transposition by way of internal administrative rules is not sufficient to satisfy those requirements in view of the fact that individuals cannot rely on such rules before national courts. Nor is it sufficient to incorporate the rules of the directives in the VOL/A and VOB/A. Those rules are drawn up by committees consisting of representatives of ‘Gebietskörperschaften’ (regional authorities), and representatives of business and trade-union groups. Their powers have no statutory basis and the rules which they draw up must be classified as being exclusively private-law procedural rules. The Commission has referred in this connection to the Court's judgment in Case C-361/88 Commission ν Germany, ( 4 ) concerning the transposition of Directive 80/779/EEC ( 5 ) by way of a general administrative circular entitled ‘Technische Anleitung zur Reinhaltung der Luft’ (‘Technical instructions concerning air purity’), at paragraph 20 of which the Court held that ‘... the Federal Republic of Germany has not pointed to any national judicial decision explicitly recognizing that that circular, apart from being binding on the administration, has direct effect vis-à-vis third parties. It cannot be claimed, therefore, that individuals are in a position to know with certainty the full extent of their rights in order to rely on them, where appropriate, before the national courts or that those whose activities are liable to give rise to nuisances are adequately informed of the extent of their obligations.’ In the Commission's opinion, the complaints procedure set out in Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts ( 6 ) (hereafter ‘Directive 89/665’) supplements the opportunities for bringing breaches of the directives on the award of public contracts before national courts but does not replace them.
41.

As regards the circumstances in which the directive was adopted, I refer first of all to the Council resolution of 21 January 1974 concerning a social action programme. ( 16 ) In the preamble to that resolution it is stated that ‘economic expansion is not an end in itself but should result in an improvement of the quality of Ufe as well as of the standard of living’. The Council went on to consider that ‘social objectives should be a constant concern of all Community policies’. At that time the Council took the initiative of adopting measures for the ‘improvement of living and working conditions so as to make possible their harmonization while the improvement is being maintained’ in order to ‘protect workers’ interests, in particular with regard to the retention of rights and advantages in the case of mergers, concentrations or rationalization operations' (eleventh indent). The resolution concludes by stating that the Commission has already submitted to the Council a proposal for a directive on the approximation of the laws of the Member States relating to collective redundancies.
9.

It follows from the foregoing that it is not necessary to have recourse to considerations drawn from the above-cited Pennacchiotti judgment in order to answer the question whether Regulation No 482/74 continued in force under the combined nomenclature. In assessing the relevance of the general legal situation as expressed in that judgment, it must be noted that it is extremely important, not only with regard to the citizen's acceptance of the Community and Community law, but also for the effective application of Community law, that rules should be made as clear and transparent as possible. In this connection it is worth pointing out that to a much greater extent than previously there is an inclination to codify legislation. ( 4 ) The Court of Justice must support these efforts to make Community law as clear and transparent as possible for the citizen. I am not convinced that the principle laid down in the Pennacchiotti case is likely to promote those overriding requirements of clarity and transparency in Community law. Greater clarity and transparency is ensured for the citizen if implementing regulations lapse when the regulations constituting their legal basis are repealed unless there is an express statement to the contrary.
6.

In its defence, the Greek Government stated that the measures for the transposition of Directives 90/219 and 90/220 into national law were under preparation. In particular, with regard to Directive 90/220, the Ministry for the Environment and the Ministry of Agriculture, which were the competent authorities, considered that the process for the adoption of the implementing measures should be completed by the end of 1994. With regard to Directive 90/219, the Greek Government stated that a draft presidential decree had been prepared but, in view of the distinctive character of the subject-matter of that directive, the draft decree had to be examined by a number of public authorities, in particular the Ministry for the Environment, the Ministry of Health, the Ministry of Employment and the Ministry of Industry, so that it was not possible to fix a precise date for its final adoption.
((Safeguarding of employees' rights in the event of transfers of undertakings))
6.

By judgment of 30 November 1993, the Court of First Instance upheld his claim. It found, first, that ‘no provision of the Staff Regulations or Conditions of Employment of Other Servants expressly lays down restrictive rules governing the circumstance-s of the present case. In particular, the text of Article 10 of Annex VII to the Staff Regulations does not prevent the cumulative grant of the daily subsistence allowance, as requested by the applicant’. ( 4 ) On the contrary, the Court of First Instance took the view that an upper limit on the period for which the daily subsistence allowance can be granted, which the Parliament seeks to apply to the probationary period, would disregard the precarious nature of the employment relationship characterizing the administrative situation of probationary officials. ( 5 ) The Court of First Instance considered that in such circumstances, where the employment relationship has always been precarious, ‘... the daily subsistence allowance is granted for a specific purpose: it seems reasonable to encourage the person concerned to refrain from transferring his residence, a move which, in the event of his not being established, would be premature and would, in the event of termination of his service, give rise, pursuant to Article 9(1) and (2) of Annex VII to the Staff Regulations, to a double reimbursement of removal expenses. In those circumstances, the person concerned must be entitled in return, pursuant to Article 10 of Annex VII to the Staff Regulations, to the grant of the daily subsistence allowance until the end of the period of precarious employment, plus one month, regardless of whether he has already received that allowance in earlier periods when his employment relationship was also precarious’. ( 6 ) Pointing out, finally, that the aim pursued by the grant of the daily subsistence allowance, as determined in previous ( 7 ) namely ‘to compensate the official for the expense and inconvenience occasioned by the need to change residence or to establish provisional residence at his place of employment while maintaining, also on a provisional basis, his residence at the place where he was recruited or previously employed’, is appropriate to the circumstances of this case (maintenance of two residences: one for his family in Belgium and one close to his place of employment), ( 8 ) the Court of First Instance concluded that Mr Vienne was indeed entitled under the Staff Regulations to payment of the daily subsistence allowance until the end of his probationary period, plus one month. ( 9 )
15.

However, the facts here are not comparable with those on which the judgment in the Lohmann case was based. The present case is not concerned with whether or how the existence of an entitlement on the basis of a special scheme for civil servants or persons treated as such affects the question of the applicability of Regulation 1408/71. It is clear that Mrs Olivieri-Coenen is not entitled to such benefits on the basis of the Pensioenwet 1922 or of the ABPW. The only point in issue is whether a period during which she was subject to the Pensioenwet 1922 may be regarded as a period of employment within the meaning of the provision in question and may therefore be taken into account in calculating the pro rata invalidity pension under Dutch law. An answer in the affirmative by no means conflicts with Article 4(4) of Regulation No 1408/71. It must be mentioned once again that, after the expiry in 1971 of the transitional period laid down by the ABPW, Mrs Olivieri-Coenen had no entitlement whatever on the basis of a special scheme for civil servants and persons treated as such. In the final outcome, her position is exactly the same as if she had at no time been subject to the Pensioenwet 1922. As this is the conclusion which must be reached from the existing provisions, it is unnecessary to justify such conclusion by prior amendment of Article 4(4) by the legislature, which is regarded as necessary by the defendant in the main proceedings.
3.

Since the Commission was not informed of any transposition by the Member State, it initiated the procedure for failure to fulfil obligations by a letter of formal notice dated 14 October 1992. There was no reply to the letter. The Commission thereupon delivered a reasoned opinion on 11 May 1993. By a letter of 15 July 1993 from the Permanent Representation of Ireland to the European Communities, Ireland informed the Commission that a transposition procedure was in progress. Since the Commission was not informed of the completion of the procedure, it brought an action before the Court on 14 April 1994. Ireland states in its defence that by Statutory Instrument No 255 of 1994, signed by the Irish Minister for Agriculture on 26 July 1994, Ireland has transposed the directive, with the exception of provisions relating to fish and fishery products.