ddrg/super_eurlex huggingface dataset:
OPINION OF MR ADVOCATE GENERAL

WARNER

DELIVERED ON 28 FEBRUARY 1980

My Lords,

I would not think it right in this case to ask Your Lordships for time to consider my opinion — for two reasons.

The first is the urgent nature of the case itself. This reference was ordered by the President of the College van Beroep voor het Bedrijfsleven in proceedings before him for interim relief. He granted that relief, with the result that the allocation of the Dutch share of the “GATT quota” in question is suspended. We have therefore been asked, by the College, for a speedy decision.

Secondly it seems to me, despite the courageous submission of Counsel for the plaintiff this afternoon, that the answer to the question referred to the Court by the President of the College is to be found in the judgment of the Court in Case 35/79, the second Grosoli case, which was delivered on 23 January 1980, that is after the Order for Reference in this case was made and indeed after the written procedure in it had been completed.

The only difficulty I can see is due to the wording of the question referred to the Court by the President of the College. It speaks of the system of allocation adopted by the defendant Board as one whereunder part of the quota is “reserved to the processing industry”. That makes it look as though there might possibly be a breach of the rule laid down by the Court in Case 131/73 the first Grosoli case [1979] 2 ECR 1555. In fact, so it was explained to us, the system in question is simply one under which the Dutch share of the quota is allocated to traders on the basis of their average importations in the three previous years, excluding importations effected entirely free of levy unless so effected under the GATT quota itself. This means that importations effected by or for the processing industry at a reduced rate of levy under Article 14 (1) (b) of Council Regulation (EEC) No 805/68 (as amended by Council Regulation (EEC) No 425/77) are taken into account. Obviously that involves no arbitrary discrimination against traders in the position of the plaintiff. Indeed the processors might conceivably complain of discrimination of their importations under Article 14 (1) (b) were ignored.

In the result I think that Your Lordships should, following so far as apposite the Court's ruling in the second Grosoli case, answer the question referred to the Court by the President of the College by saying that neither Article 3(1) of Council Regulation (EEC) No 3063/78, nor any other rule or provision of Community law, precludes a national authority that is entrusted with the duty of allocating a share of the quota opened by that Regulation from doing so on the basis of the importations effected by the traders concerned in previous years, including importations effected pursuant to Article 14 (1) (b) of Regulation No 805/68 (as amended), so long as the system adopted by that authority does not entail the application of arbitrary criteria as between those traders.
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 15 SEPTEMBER 1981

My Lords,

This is an application by the Commission for a declaration pursuant to Article 169 of the EEC Treaty that the Republic of Italy has failed to fulfil its obligations under the Treaty in that in has not adopted the measures necessary in order to comply with a series of seven directives within the periods prescribed therein. Those Directives (76/765 and 76/766 of 27 July 1976, 76/891 of 4 November 1976, 77/95 of 21 December 1976, 77/313 of 5 April 1977, 78/365 of 31 March 1978 and 78/629 of 19 June 1978) were concerned with certain units and instruments of measurement.

The Republic of Italy has not denied that is has failed to comply with the directives. It has explained why the delays occurred. In the first place it refers to the burden imposed upon the national parliament in implementing the many directives which have been issued. It also refers to the fact that the Italian Government has set in motion a procedure to enable the directives to be implemented by decree rather than by parliamentary action. This procedure has not yet been completed.

It is, however, well established in the case-law of the Court that a Member State may not rely upon provisions, practices or circumstances existing in its internal legal system to justify failing to comply with the obligations imposed on it by a directive (see, for example, Case 171/80 Commission ν Italy,17 February 1981, not yet reported).

In consequence of these decisions of the Court, it is my opinion that the declaration sought by the Commission should be granted and that the Republic of Italy should be ordered to pay the costs of the action.
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELRIVRED ON 17 NOVEMBER 1982

My Lords,

This is an application by the Commission, pursuant to Article 169 of the EEC Treaty, for a declaration that the Republic of Italy has failed to fulfil its obligations under the Treaty in that it has not adopted the measures which are necessary to implement Council Directive 72/464 of 19 December 1972 (OJ L 303, 31. 12. 1972, p. 1), as amended by Council Directive 77/805 of 19 December 1977 (OJ L 338, 28. 12. 1977, p. 22). These measures provide for the harmonization of the structure of the excise duty on manufactured tobacco in several suges.

The Member States, other than the United Kingdom and Ireland, were to have implemented the former by 1 July 1973, but in 1977 the Commission observed, in a letter to the Italian Government, that Article 8 of the directive was not being complied with. That article required that the amount of the specific excise duty levied on cigarettes should be established for the first time by reference to cigarettes in the most popular price category according to data available on 1 January 1973, and it provided that the amount of that duty might not be lower than 5% or higher than 75% of the aggregate amount of the proportional excise duty and the specific excise duty levied on these cigarettes. The Commission pointed out that the excise duty levied on cigarettes in Italy did not fall within the bracket laid down by that article.

Directive 77/805 contained special provisions applicable during the second stage of harmonization, which was to run from 1 July 1978 to 31 December 1980. Under that directive it was provided that the amount of excise duty on cigarettes was to be fixed yearly, beginning on 1 January 1978. The bracket within which the specific component of the excise duty was to fall, was redefined in that the specific component should not be less than 5% or more than 55% of the amount of the total tax burden resulting from the aggregation of the proportional excise duty, the specific excise duty, and also, for the first time, the turnover tax levied on these cigarettes.

Although there was some debate about the proper interpretation of these provisions, it is not now disputed that the Italian Government has failed to adopt the measures necessary to give effect to them. The Court has been told that a Bill designed to do so was presented to the Iulian Parliament on 16 May 1980 but that the legislative process has not yet been completed and that it has not yet come into force. It is well established in the case-law of the Court that a Member Sute is not entitled to rely on circumsunces or practices existing in its own internal legal system to justify failing to comply with the obligations imposed on it by a directive.

In consequence the declaration sought by the Commission should, in my opinion, be granted and the Republic of Italy should be ordered to pay the costs of the action.
8.

It must be noted that the Court has not yet had occasion to rule on that condition. In earlier cases, the Court was concerned with hybrid legislation where the benefits to be classified could be related unequivocally to one of the risks falling within the material scope of the Community regulations, namely old age ( 9 ) or invalidity. ( 10 ) That classification of those benefits was made easier by the broad interpretation of the concept of benefits as defined by the relevant Community regulations. ( 11 ) The Court has, it is true, always arrived at that finding after identifying one of the branches of social security to which the regulation is applicable. ( 12 ) In some cases, the Court has even noted the analogy between the benefit to be classified and one of the risks covered by the Community regulations. ( 13 ) Furthermore, in the Biason case, which related to a supplementary allowance paid by the French Fonds National de Solidarité, the Court based its reasoning on the link between the allowance and an invalidity pension of which it was ‘an automatic appendage’. ( 14 ) However, as the Commission points out, if a law creates a right to a minimum means of subsistence, that right, although it may serve to make good the absence or inadequacy of social benefits, cannot as such be brought within any one of the risks listed in Article 4 (1) of Regulation No 1408/71, which must be covered by the national legislation to which that regulation applies. Here the factor which gives rise to entitlement to the ‘minimex’ is not a contingency falling within one of the risks covered by that provision but the claimant's state of need, which is determined by his resources. In other words, even if it is accepted that the legislation providing for the ‘minimex’is hybrid in nature, the right to a minimum means of subsistence does not appear, as the Community rules laid down by the Council in the field of social security now stand, to be a social security benefit within the meaning of Article 4 (1) of Regulation No 1408/71. Consequently, the question of the applicability of the principle of equal treatment as laid down in Article 3 of that regulation no longer arises. The question relating to the infringement of Article 3 of the regulation should therefore be answered in the negative.
OPINION OF MR ADVOCATE GENERAL LENZ

delivered on 31 January 1985 ( *1 )

Mr President,

Members of the Court,

The representative of the Commission has already stated that he sees no need tosubmit detailed observations in this case in view of the clear and simple facts, the clarity of the legal question at issue and the fact that the submissions of the plaintiff in the main proceedings, of the Commission and of the Netherlands Government are in agreement.

Like the representative of the Commission, I consider the submissions of the Netherlands Government to be of great importance because, at first sight, its interests should in fact have led the Netherlands Government to support the defendant. The fact that it has not done so is a further indication of the clarity of the legal position.

This case concerns the claims which a Netherlands national, who now resides in the Netherlands and who was last in employment in the Netherlands, is making against a Netherlands social security institution.

All the parties appearing before the court correctly concluded that Section 2 of Chapter 6 of Title III of Regulation No 1408/71, and in particular Article 69 thereof, is not applicable in this case.

For the aforementioned reasons I therefore join with the Commission in proposing that the Court should declare that Section 2 of Chapter 6 of Title III of Regulation No 1408/71, and in particular Article 69 thereof, is not applicable to a wholly unemployed frontier worker who, on the termination of his last employment, settles in the territory of the competent Member State, that is to say the State in which he was last employed.

( *1 ) Translated from the German.
2.

In the observations it submitted to the Court, the Commission states that it does not understand how these proceedings arose. The subject of the main proceedings is the importation into Germany of goods coming from another Member State and thus clearly outside the scope of the Common Customs Tariff. Thomasdünger recognizes that fact but observes that for reasons of an internal character, some German authorities make use of the Community classification. That is the case with the Bundesbahn [Federal Railways] which charges different rates for transporting products derived from the steel industry according to the heading of the Common Customs Tariff under which they are to be classified. An erroneous classification of goods could therefore increase transport costs and cause the undertaking to lose in this case DM 2500000 a year. That is the basis of Thomasdünger's interest in the reply which this Court will give to the questions referred to it by the Bundesfinanzhof. Of the two arguments, I prefer the former (which, if I am not mistaken, is also supported by the Court's case-law: see the judgment of 17 December 1975 in Case 93/75, Adlerblum v Caisse nationale d'assurance vieillesse des travailleurs salariés [1975] ECR 2147). The Community law which the national court is asking this Court to interpret actually concerns the main proceedings, and affects the interests of the parties, not directly but per relationem. In other words, it comes into consideration solely because a national authority has decided, freely and unilaterally, to adopt it as a frame of reference in order to determine its own rules. In replying to those questions therefore, the Court would in appearance be interpreting the provisions mentioned therein but would in reality be expressing an opinion on the internal rules in which those provisions had been absorbed and by which process they had lost their binding force. That is something which the Court is expressly prohibited from doing by Article 177 of the Treaty. I regard that argument as decisive but a further point might be added. When the Community authorities defined the Common Custom Tariff headings, they were concerned inter alia with ensuring that goods coming from nonmember countries meet the Community's minimum requirements for permitting them to be placed in free circulation on the common market. However, it is clear that the national authorities could not have had the same purpose. It follows that when the Common Customs Tariff headings are used by the national authorities in the way set out above, they are deprived of at least one of their purposes and acquire others of a different character. Thus, from that point of view also, it is impossible for the Court to interpret them.
13.

Consequently, since we know that a decision was actually taken by the Selection Board in response to the complaint, it is clear that any reference to the judgments in the cases involving the question whether or not there was a decision of the High Authority is out of place here. It will be recalled that according to those decided cases a statement can have the force of a decision only if it is apparent from its very form that it was a measure taken by the High Authority, acting as a body, and that is only the case where it bears the signature of a Member of the High Authority and not where a letter was signed by an official in his own name and hence not in the name and on behalf of the High Authority (see the judgments in Cases 23, 24 and 52/63 ; ( 4 ) Case 54/65; ( 5 ) Case 42/59; ( 6 ) and Case 35/62 ( 7 )).
3.

With regard to the first charge the applicant claims that it would not have committed the infringement with which it is charged if the Commission had authorized it to carry over unused quotas ‘also to quarters subsequent to the third quarter of 1982’. Since its request to that effect was not allowed, Sideradria contends that it could not be penalized solely for having produced after the prescribed period quantities of bars which the supervisory body itself had granted it retroactively. In any event, Sideradria considers that its conduct must be considered to be lawful pursuant to Article 11 (3) (d) of Commission Decision No 1696/82/ECSC of 30 June 1982 (Official Journal 1982, L 191, p. 1) which provides that ‘where an undertaking has not attained its production quotas during the quarter in question and can prove that this is the result of circumstances of force majeure, the Commission may authorize the undertaking concerned to carry over the unused quotas in their entirety’. Those arguments must be rejected. To claim that the period prescribed was inadequate and that the supplementary quotas should therefore be carried over is tantamount to contesting the legality of the measure which laid down that period. But it is clear from the case-law of the Court (see most recently paragraph 15 of the aforementioned judgment of 12 December 1985) that the decision of 19 August 1982 became definitive some time ago and the undertaking concerned is therefore not entitled to raise an objection of illegality in proceedings for the annulment of the fine. Nor can the applicant plead force majeure: it does not indicate the reasons which prevented it from using up the additional quotas within the prescribed period and it also did not refer to them in the request which it made to the Commission for an extension. As regards the second allegation that the applicant exceeded the quotas for deliveries in the fourth quarter of 1981 and all four quarters of 1982, I would observe that Sideradria's arguments are the same as it put forward in Case 67/84, that is to say (a) manifest disproportion between production quotas and delivery quotas; (b) failure to apply, or misapplication of, the corrective measures provided for by the Community legislature for steel undertakings experiencing difficulties as a result of the previous system for calculating quotas (Article 8 (2) of Commission Decision No 1831/81/ECSC of 24 June 1981, Official Journal 1981, L 180, p. 1, as amended by Decision No 2804/81/ECSC of 23 September 1981, Official Journal 1981, L 278, p. 1, and Article 14 of Decision No 234/84/ECSC of 31 January 1984, Official Journal 1984, L 29, p. 1); (c) failure to take into account certain accounting errors made by the undertaking which altered to its detriment the reference data used to determine the quotas. In its judgment of 12 December 1985 the Court declared the first two arguments to be inadmissible and the third to be without foundation. The position must be the same, mutatis mutandis, in this case too; it is therefore unnecessary for me to repeat the reasons underlying them (see my Opinion in Case 67/84).
93.

In principle, that could be the most equitable solution. That is because imposing the same requirement of time on exporters from peripheral countries (such as Ireland) for final departure from the Community as that applicable to those who export directly would not, in the result, compensate them fully for the disadvantages to which they are subject: a period of 60 days does not have the same significance for an Irish exporter as it has for a Belgian or a Dutch exporter able to use the ports of Antwerp or Rotterdam. That is what the Commission appears to have conceded, in essence, in its replies to the questions put by the Court when it stated that ‘if the Commission had insisted strictly on the 60-day limit without taking any account of genuine transport delays this would have been discrimination against those exporters virtually obliged to tranship’.
2.

The Commission initially raised four objections. However, the amendments made to the contested Greek regulation in 1985 induced the Commission to withdraw one of its two objections to Article 65 (namely the prohibition in some circumstances on the marketing of cotton thread imported from other Member States). The Court must therefore rule only on the three remaining heads of complaint, referring only to the provisions cited in the reasoned opinion and in the originating application, and disregarding the amendments subsequently made by the defendant State to the provisions still at issue. Since it necessarily precedes the action before the Court, ‘the function of the reasoned opinion (under Article 169) is to define the subject-matter of the dispute.’ ( 2 ) The Commission may, of course, withdraw certain objections in the course of the proceedings. However, if it does not do so in spite of intervening amendments to the national legislation in dispute, the Court may not rule on matters other than those originally brought up, which are the only matters under discussion. ( 3 )
Opinion of Mr Advocate General Lenz delivered on 26 February 1991. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Measure having equivalent effect - Aid for the purchase of motor vehicles of domestic manufacture. - Case C-263/85.



European Court reports 1991 Page I-02457

Pub.RJ Page Pub somm



Opinion of the Advocate-General

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Advocate General Carl Otto Lenz delivered his Opinion on 26 February 1991. (*) He concluded as follows:

"The only possible conclusion (which, at the hearing, the defendant, too, accepted as being correct) is that the view taken by the Commission must be upheld. It should accordingly be declared, following the terms of the claim, that by requiring public bodies to buy vehicles of domestic manufacture in order to benefit from the aid provided for by Law No 151 of 10 April 1981, the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty. Since that is the result of the proceedings, the defendant must also be ordered to pay the costs."

(*) Original Language: German.
26.

The national court could therefore begin by examining the language normally used and trade usage, and establish, for example (this is pure conjecture), that the Dutch language contains the words ‘mineral water’ on the one hand, and ‘fizzy’ or ‘sparkling’ water on the other hand. It might then consider that to the majority of the population the expression ‘mineral water’ implies that the water in question comes from a specific area, that it contains certain minerals said to have beneficial effects on health and that it therefore could not be tap-water. It might then, if national rules of interpretation permit, refer to Directive 80/777/EEC in order to establish that the directive confirms that a strict interpretation of the term ‘mineral water’ corresponds to the traditional view adopted in the majority of Community countries, since that was the interpretation adopted in the directive, which has since been implemented in the Netherlands. The court might then draw the conclusion that at the material time, that is to say before the directive was implemented, a drink sold as ‘mineral water’ but obtained from tap-water should be regarded in the Netherlands as a ‘product of unsound composition’.
Opinion of Mr Advocate General Tesauro delivered on 28 February 1989. - Philippe Lambert and others v Directeur des services fiscaux de l'Orne and others. - References for a preliminary ruling: Tribunal de grande instance d'Argentan - France. - VAT - Automatic games machines. - Joined cases 317/86, 48, 49, 285, 363 to 367/87, 65 and 78 to 80/88.



European Court reports 1989 Page 00787

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Opinion of the Advocate-General

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Mr Advocate General Tesauro delivered his Opinion on 28 February 1989 . (*) He concluded as follows :

( i ) in the case of the State tax, the answer is expressly set out in the judgment in Bergandi;

( ii ) in the case of the municipal tax, it is for the national court to determine whether it exhibits the same characteristics as the State tax, obviously bearing in mind that, according to the judgment in Bergandi, the status of the authority which collects the tax, whether it be the State or a municipality, is irrelevant and it is the structure of the tax that matters .

(*) Original language : Italian .