ddrg/super_eurlex huggingface dataset:
Opinion of Mr Advocate General Jacobs delivered on 12 March 1998. - Commission of the European Communities v Portuguese Republic. - Failure by a Member State to fulfil its obligations - Directives 86/280/EEC and 88/347/EEC - Failure to transpose within the period prescribed. - Case C-213/97.



European Court reports 1998 Page I-03289



Opinion of the Advocate-General

1 In these proceedings the Commission seeks a declaration, under Article 169 of the EC Treaty, that Portugal has failed to fulfil its obligations under the Treaty by not adopting within the prescribed period, and/or by not immediately communicating to the Commission, the measures necessary to implement Council Directive 86/280/EEC (1) of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC, as amended by Council Directive 88/347/EEC of 16 June 1988 amending Annex II to Directive 86/280. (2) Directive 76/464 (3) concerns pollution caused by certain dangerous substances discharged into the aquatic environment of the Community.

2 Article 7 of Directive 86/280 provides that:

`1. Member States shall bring into force the measures necessary to comply with this Directive by 1 January 1988. They shall forthwith inform the Commission thereof.

2. Member States shall communicate to the Commission, immediately after adoption, the texts of the provisions of national law which they adopt in the field governed by this Directive.'

3 Article 2 of Directive 88/347 provides that:

`Member States shall take the measures necessary to comply with this Directive by 1 January 1989 with regard to aldrin, dieldrin, endrin and isodrin, and by 1 January 1990 with regard to the other substances. They shall forthwith inform the Commisson thereof.

...'

4 Portugal has not disputed its failure to implement the Directive and states in its defence that the necessary measures are in the course of being adopted.

5 In these circumstances the Commission's application is clearly well founded.

Conclusion

6 Accordingly I am of the opinion that the Court should:

(1) declare that, by failing to adopt within the prescribed period the provisions necessary to implement Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC, as amended by Council Directive 88/347/EEC of 16 June 1988 amending Annex II to Directive 86/280, Portugal has failed to fulfil its obligations under the Treaty;

(2) order Portugal to pay the costs of these proceedings.

(1) - OJ 1986 L 181, p. 16.

(2) - OJ 1988 L 158, p. 35.

(3) - OJ 1976 L 129, p. 23.
Opinion of Mr Advocate General La Pergola delivered on 16 December 1997. - Commission of the European Communities v French Republic. - Directive 93/89/EEC on the application by Member States of taxes on certain vehicles used for the carriage of goods by road and tolls and charges for the use of certain infrastructures - Non-transposition. - Case C-175/97.



European Court reports 1998 Page I-00963



Opinion of the Advocate-General

1 In this case, the Commission asks the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Council Directive 93/89/EEC of 25 October 1993 on the application by Member States of taxes on certain vehicles used for the carriage of goods by road and tolls and charges for the use of certain infrastructures, (1) the French Republic has failed to fulfil its obligations under the EC Treaty and under that directive.

2 The directive whose transposition is in issue is designed to bring about a gradual approximation of the laws of the Member States concerning the tax treatment of road transport, with a view to eliminating distortions of competition between Community transport undertakings. Under Article 13(1) of the directive, the deadline for transposition was 1 January 1995.

3 By a judgment of 5 July 1995, (2) the Court annulled the directive, whilst providing that its effects were to be preserved in their entirety until the adoption of a new directive by the Council.

4 The French Government does not deny the failure to transpose the directive. It merely observes that the delay in transposition is due to the serious socio-economic difficulties affecting the road transport sector. In particular, it maintains that transposition of the directive would have caused an increase in costs for transporters and thus aggravated a situation of severe social tension, thereby imperilling the proper functioning of a service essential to the national economy. Moreover, in view of the particular circumstances of the French market, the Government maintains that failure to transpose the directive has not caused any distortion of competition. It has, in any event, indicated its willingness to transpose the directive at the first opportunity.

5 Nevertheless, it seems to me that the French Government's arguments are directed not so much at obtaining the dismissal of the Commission's application as at providing justification for the reasons for the breach of obligations. In any case, it is settled case-law that the difficulties put forward by the defendant Member State do not constitute justification for failing to fulfil its obligations. (3)

6 I therefore propose that the Court should allow the application and order the French Republic to pay the costs.

(1) - OJ 1993 L 279, p. 32.

(2) - Case C-21/94 Parliament v Council [1995] ECR I-1827.

(3) - See, inter alia, Case C-52/95 Commission v France [1995] ECR I-4443.
Opinion of Mr Advocate General Mischo delivered on 11 February 1999. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Directive 92/101/EEC. - Case C-185/98.



European Court reports 1999 Page I-03047



Opinion of the Advocate-General

1 In this case which it has referred under the second paragraph of Article 169 of the EC Treaty, the Commission of the European Communities seeks a declaration by the Court that, by failing to adopt and, in the alternative, by failing to communicate to the Commission, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 92/101/EEC of 23 November 1992 amending Directive 77/91/EEC on the formation of public limited-liability companies and the maintenance and alteration of their capital, (1) the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and that directive.

2 Article 3 of that directive provides that `Member States shall adopt before 1 January 1994 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof'.

3 The Hellenic Republic admits that Directive 92/101 has not yet been transposed into its legal system. It does, however, point out that a draft Presidential Decree adapting national legislation to the directive is in the process of being adopted.

4 Since, therefore, it cannot be disputed, and has not been disputed, that Directive 92/101 was not transposed within the period prescribed therein, the Commission's application must be considered to be well founded. (2)

Conclusion

5 I accordingly propose that the Court uphold the Commission's application and:

(1) declare that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 92/101/EEC of 23 November 1992 amending Directive 77/91/EEC on the formation of public limited-liability companies and the maintenance and alteration of their capital, the Hellenic Republic has failed to fulfil its obligations under that directive;

(2) order the Hellenic Republic to pay the costs.

(1) - OJ 1992 L 347, p. 64.

(2) - See, along these lines, in particular, Case C-410/97 Commission v Luxembourg [1998] ECR I-6813.
((Appeal – Competition – Article 65(1) of the ECSC Treaty – Exchange of information – Normal competition – Portions of the fine – Adoption of a decision by the Commission – Procedural rights – Article 6 ECHR – Duration of the proceedings))
((Appeal – Admissibility of new submissions – Common organisation of the markets – Bananas – Request for additional import licences – Adjustment of tariff quota where necessary – Transitional arrangements – Admissibility of an action for annulment – Non-contractual liability of the Community))
((Directive 79/409/EEC – Conservation of wild birds and their habitats – Special protection areas))
((Article 234 EC – Freedom to provide services – National rules which prohibit the televised advertising of alcoholic drinks – Jurisdiction of the Court of Justice))
((Plant varieties – System of protection – Article 14(3) of Regulation (EC) No 2100/94 and Article 8(2) of Regulation (EC) No 1768/95 – Exemption – Authorisation granted to farmers to use for propagating purposes, on their own holding, the product of the harvest which they have obtained by planting a protected variety – Definition of farmer required to inform the holder of the Community plant variety right))
((Appeal – Non-contractual liability of the Community – Causation – Mere infringement – Discretion in anti-dumping law – Introduction of a provisional anti-dumping and countervailing duty on imports of farmed salmon originating in Norway))
(Annulment of Commission Decision C(2000) 686 of 1 March 2002 on the aid schemes implemented by Greece in favour of the settlement of debts by the agricultural cooperatives in 1992 and 1994 including the aids for reorganisation of the dairy cooperative AGNO)
6.

As for national legislation, Decree No 46-448 of 18 March 1946, most recently amended by Decree No 93-1285 of 6 December 1993, governs the conditions for entry and residence by foreign nationals in French territory (hereinafter ‘Decree No 46-448’). Article 2 of the decree provides inter alia: ‘Without prejudice to the provisions of Article 1, foreign nationals shall reside and move freely throughout French territory. The Minister for the Interior may, nevertheless, by decree, specify departements where foreign nationals, from the date of publication of that decree, may not establish their residence without first obtaining authorisation from the prefect of the place to which the foreign national wishes to move. The residence permit of non-nationals resident in those departements shall carry a special indication which validates them for the departement in question. If, owing to his attitude or antecedents, a foreign national without a residence permit is made subject to special supervision, the Minister for the Interior may prohibit him from residing in one or more departements. In the same circumstances, the prefect may restrict the geographical validity of the residence permit or any alternative permit held by the person concerned either to the departement or to one or more districts within it. The decision by the Minister for the Interior and Decentralisation or by the prefect is indicated on the residence permit of the person concerned. The foreign nationals referred to in the previous subparagraph may not travel outside the area of validity of their residence permit without authorisation from the superintendent of the national police, or from the municipal police of their place of residence. Any foreign national establishing his residence or staying in a district in breach of this article will be subject to the penalties laid down for category 5 offences.’
((Failure by a Member State to fulfil its obligations – Articles 49 EC and 50 EC – Freedom to provide services – Activities being pursued on a temporary basis – Patent agents established in other Member States – Enrolment on the register of patent agents – Residence or place of business))
((Free movement of goods – Measures having an equivalent effect to a quantitative restriction – Prohibition on the landing of scallops during their close season – Effect of a failure to notify in accordance with Regulation (EC) No 850/98))
((Failure by a Member State to fulfil its obligations – Incomplete transposition of Directive 89/655/EEC))
((Failure of a Member State to fulfil its obligations – Pre-litigation procedure – Subject-matter of the dispute – Determination – Letter of formal notice – Directive 77/187/EEC – Safeguarding of employees' rights in the event of transfers of undertakings – Scope of application))
((Council Directive 80/987/EEC – National legislation fixing the final date for the guarantee period as the date of the opening of proceedings to satisfy collectively the claims of creditors where the employment relationship still exists at that date – Article 141 EC – Indirect discrimination against female workers on special leave with education allowance))
((Agriculture – Law on animal health – Imports of sheep – Health certificates – Adoption of precautionary national measures against Transmissible Spongiform Encephalopathy – Articles 28 EC and 30 EC – Article 10 of Directive 90/425/EEC))
(((Freedom of establishment – Taxation – Corporation taxes – Restriction on deductibility of costs relating to the holdings owned by a parent company in its subsidiaries established in other Member States – Cohesion of the tax system))
((Protection of workers – Insolvency of the employer – Scope of Council Directive 80/987/EEC – National case-law on shareholder loans made in substitution for share capital – Total loss of entitlement))
((Appeal – ECSC Treaty – Rejection of a complaint alleging discriminatory pricing for purchase of coal and abusive royalties for coal extraction – Powers of the Commission))
((Free movement of workers – Vehicle leasing – Obligation to register vehicle in the worker's Member State of residence))
((Freedom of establishment – Lawyer – Conditions for taking up and pursuing a profession – French national having a French maîtrise en droit and resident in Italy – Conditions of enrolment in a national register of trainee lawyers))
((Social security – Safeguarding employees' rights in the event of transfers of undertakings – Directive 77/187/EEC – Scope – Old-age benefits – Definition – Possibility of waiver))
((Regulation (EEC) No 3950/92 – Additional levy in the milk and milk products sector – Deliveries by a producer to a purchaser – Purchaser's failure to pay the levy – Recovery from the producer))
((Sixth VAT Directive – Article 13A(1)(f) and Article 13B(a) – Exemption for services performed by independent groups not likely to give rise to distortions of competition – Exemption for insurance transactions and related services performed by insurance brokers and insurance agents – Assessments of damage caused to motor vehicles carried out by an association on behalf of insurance companies which are members of that association))
((Free movement of goods – Articles 28 EC and 30 EC – Legislation of a Member State prohibiting the marketing of certain products and food supplements lawfully marketed in another Member State))
((Equal treatment for men and women – Interpretation of Directives 76/207/EEC, 86/457/EEC and 92/16/EEC – Requirement to complete a minimum period of full-time training within a part-time training scheme in order to be allowed to use the title general medical practitioner))
((Failure by a Member State to fulfil its obligations – Free movement of goods – Measures having equivalent effect – Indication of provenance – Regional labels))
((Community Customs Code – Customs debt – National legislation requiring the payment of interest on arrears for the period between the incurrence of a customs debt and the entry in the accounts – Compatibility))
(Free movement of goods (Articles 28 EC and 30 EC) – Freedom to provide services (Articles 46 EC and 49 EC) – Prohibition on advertisements stating that the goods offered come from an insolvency estate – Measures having equivalent effect to a quantitative restriction – Justification on grounds of consumer protection and fair trading – Proportionality)
(Freedom of movement for persons and services – Recognition of diplomas – General systems – Directives 89/48/EEC and 92/51/EEC – Primary school teachers – Diploma awarded in Austria on completion of two years’ education and training – Recognition in Baden‑Württemberg (Germany) – Recognition conditional on diploma attesting to education and training of at least three years’ duration and qualifying the holder to teach two subjects)
(Failure to fulfil obligations – Directive 75/439/EEC, as amended by Directive 87/101/EEC – Disposal of waste oils – Measures to prioritise regeneration – Technical, economic and organisational constraints)
(Sixth VAT Directive – Exemptions – International transport – Fuelling and provisioning of aircraft and other services provided to them – Interpretation of Article 15(7) and (9))
(Failure of a Member State to fulfil its obligations – Directive 91/439/EEC – Driving licences – Mutual recognition – National procedure for compulsory registration or exchange of licences issued by another Member State – Conditions for the renewal of licences issued prior to the transposition of Directive 91/439)
(Action for annulment – Agriculture – Common agricultural policy – EAGGF – Expenditure of a Member State which is less than the forecasts communicated to the Commission – Reduction of advances in the next financial year – Letter from a Director-General of the Commission notifying the Member State of the reduction – Admissibility of the action)
(Failure to fulfil obligations – Directive 89/655/EEC – Safety and health requirements for the use of work equipment – Work equipment already in operation)
(Article 39 EC – Freedom of movement for workers – Income tax – Discrimination between resident and non-resident taxpayers – Basic tax-free allowance – Student who has received a State grant and a parental allowance in his State of residence – Income which, by its nature, is not subject to income tax – Taking into account of personal and family circumstances in the State of residence – Not taken into account)
(Directive 89/105/EEC – Medicinal products for human use – Inclusion in a positive list of reimbursable medicinal products – Application for inclusion – Time-limit for the reply – Nature – Effects of expiry)
(VAT – Limitation of the right to deduct – Subsidies)
OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 16 October 2008 1( )

Joined Cases C‑101/07 P and C‑110/07 P

Coop de France Bétail et Viande, formerly Fédération nationale de la coopération bétail et viande (FNCBV)

and

Fédération nationale des syndicats d’exploitants agricoles (FNSEA)

and Others

v

Commission of the European Communities

(Reopening of the oral procedure – Appeal – Competition – Article 81(1) EC – Agreement, decision or concerted practice – Beef and veal – Suspension of imports – Fixing of a union price scale – Fines – Determination of legal maximum of fine – Article 15(2) of Regulation No 17 – Taking into account of turnover of members of an association of undertakings)

1. By their appeals, Coop de France bétail et viande, formerly Fédération nationale de coopération bétail et viande (C‑101/07 P), and Fédération nationale des syndicats d’exploitants agricoles, Fédération nationale bovine, Fédération nationale des producteurs de lait and Jeunes agriculteurs (C‑110/07 P) are seeking to have set aside the judgment of the Court of First Instance of the European Communities in Joined Cases T‑217/03 and T‑245/03 FNCBV and Others v Commission [2006] ECR II‑4987, by which that court, first, reduced the fine imposed on them by the Commission of the European Communities by Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 – French beef) (OJ 2003 L 209, p. 12) and, secondly, dismissed for the most part the actions for annulment of that decision.

2. By decision of 29 January 2008, the Court assigned the two cases to the Third Chamber, composed of A. Rosas, President of the Third Chamber, U. Lõhmus (Rapporteur), J. Klučka, A. Ó Caoimh and P. Lindh, Judges. Since none of the parties requested an oral hearing, the Court decided to proceed to judgment without one.

3. I delivered my first Opinion in the present cases on 17 April 2008, on which date the oral procedure was closed.

4. Since P. Lindh was prevented from attending, the Court (Third Chamber), by order of 2 October 2008, decided to replace her by J.N. Cunha Rodrigues and reopened the oral procedure, in accordance with Article 61 of the Rules of Procedure.

5. Since no new hearing was held, I have nothing to add to my Opinion of 17 April 2008.

Conclusion

6. I am therefore of the opinion that the Court should:

(1) dismiss the appeals;

(2) order Coop de France bétail et viande to pay the costs in Case C‑101/07 P and order Fédération nationale des syndicats d’exploitants agricoles, Fédération nationale bovine, Fédération nationale des producteurs de lait and Jeunes agriculteurs to pay the costs in Case C‑110/07 P;

(3) order the French Republic to bear its own costs.
5.

Article 9 of the Sixth Directive, entitled ‘Supply of Services’, provides, in so far as is relevant, as follows: ‘1. The place where a service is supplied shall be deemed to be the place where the supplier has established his business or has a fixed establishment from which the service is supplied or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides. 2. However: … (e) the place where the following services are supplied when performed for customers established outside the Community or for taxable persons established in the Community but not in the same country as the supplier, shall be the place where the customer has established his business or has a fixed establishment to which the service is supplied or, in the absence of such a place, the place where he has his permanent address or usually resides: … — the supply of staff, …’
30.

It is in those circumstances that the Bundesverwaltungsgericht decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the reference to health in a claim within the meaning of the first sentence of Article 4(3) of Regulation (EC) No 1924/2006 ..., as amended by Commission Regulation (EU) No 116/2010 ... (“the Regulation”), read in conjunction with Article 2(2)(5) or Article 10(3) thereof, require there to be a beneficial nutritional or physiological effect aimed at a sustained improvement of physical condition, or is a temporary effect, limited in particular to the time taken by the intake and digestion of the food, sufficient? (2) If the assertion of a temporary beneficial effect may in itself be a reference to health: In order for it to be assumed that such an effect is due to the absence or reduced content of a substance within the meaning of Article 5(1)(a) and recital 15 in the preamble to the Regulation, is it sufficient merely to assert in the claim that an effect generally derived from foods of this kind and frequently perceived as being adverse is limited in a particular case? (3) If the answer to Question 2 is in the affirmative: Is it compatible with the first subparagraph of Article 6(1) of the Treaty on European Union, as amended on 13 December 2007 (OJ 2008 C 115, p. 13), read in conjunction with Article 15(1) (freedom to choose an occupation) and Article 16 (freedom to conduct a business) of the Charter of Fundamental Rights of the European Union, as amended on 12 December 2007 (OJ 2007 C 303, p. 1), for a producer or marketer of wine to be prohibited, without exception, from making in its advertising a health claim of the kind at issue here, even if that claim is correct?’