ddrg/super_eurlex huggingface dataset:
4.

The national court considers that the products in question meet the conditions for classification under heading 7211 in every respect. It relies on the fact that the products are manufactured in a universal mill and observes that it follows from the Explanatory Notes to the Harmonized Commodity Description and Coding System (hereinafter ‘the Explanatory Notes to the Harmonized System’) that heading 7211 covers ‘products ... hot-rolled on four faces in a closed-box pass or universal mill’. ( 2 ) The national court states that where a product is manufactured in a universal mill the material is actually rolled on four faces. Unlike rolling in a closed-box pass, where the material is worked on all sides simultaneously, material rolled in a universal mill cannot at any one time be reduced or smoothed on all four sides but can be worked only by one pair of counter-opposed rollers. Since these pairs of rollers cannot be used simultaneously but only consecutively the pressure exerted on the surfaces which are being worked during the rolling cycle necessarily produces ‘rough-rolled edges’ on the faces not being rolled. Where the vertical rollers are out of action during the last passes — which always happens — the vertical longitudinal sides of the finished product will display the rounding and compression observed by the customs authorities, owing to the horizontal rolling. That compression creates the impression that the product has not been rolled lengthwise on its vertical faces. ( 3 ) The national court wonders whether the concept of ‘rolled on four faces’ refers solely to the manufacturing process or whether it lays down certain requirements concerning the objective properties of the finished product. It considers that the wording of the Common Customs Tariff, supports the first interpretation since it is primarily based on the manufacturing process which was used, in this case rolling on four faces. On the other hand, it does not think that the Explanatory Notes to the Harmonized System cited above provide any further assistance as to whether reference is to be made only to the manufacturing process, since they simply state that heading 7211 as such also covers products manufactured in a universal mill and do not resolve the question of the subheading of the combined nomenclature under which those products are to be classified. The national court further states that the decisive criterion for the classification of goods normally lies in their objective properties and that the greatest importance must be attached to that criterion, in the interest of a speedy and accurate classification by the customs authorities. It therefore considers that there are good grounds for arguing that rolling on four faces must be apparent from the actual appearance of the product, even though that interpretation is not wholly free from doubt according to the wording of the Common Customs Tariff.
18.

For their part the appellants in the main proceedings stress the importance of the principle of interpreting provisions in favour of the defendant in criminal proceedings. In his submissions before the Manchester Crown Court, which are reproduced in his observations for the Court, the Solicitor for the appellant states: ‘I believe that in English Courts if Legislators use words which can be read in more than one way and one is dealing with a Criminal offence then that interpretation which is most favourable to the defendant ought to be given to the words used.’ It is true that the principles nullum crimen sine lege, nulla poena sine lege and nuüa poena sine culpa form part of the Community legal order; these are fundamental rights which are common to the constitutional traditions of the Member States, the first two of which are now embodied in Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. ( 22 ) Consequently, according to established case-law they constitute an integral part of the general principles of law whose observance is ensured by the Court of Justice. ( 23 ) Those principles apply however only to the interpretation of criminal provisions. It is clear that Article 7 of Regulation No 3820/85 in question here is not in the nature of a criminal law any more than the other provisions of that regulation. The Regulation nowhere lays down specific penalties but obliges the Member States in Article 17(1) to adopt such laws, regulations or administrative provisions as may be necessary for the implementation of the Regulation, including provisions concerning ‘the penalties to be imposed in case of breach’. In Vandevenne the Court once again confirmed, with respect to the latter provision, its established case-law to the effect that ‘when a Community regulation does not provide any specific penalty in case of breach but refers on this matter to national provisions, the Member States retain a discretion as to the choice of penalties.’ ( 24 ) Even if Article 7 of the Regulation were of a penal nature, I am of the opinion that the principle nulla poena sine culpa is inapplicable here. It is true that the wording of Article 7, as already stated (at point 9), is not clear in itself; however the legislative history and the aims of the Regulation speak in my view sufficiently clearly for the ‘rolling period’ interpretation. In other words, the ambiguity of Article 7 is purely textual and cannot therefore, on the basis of the principle nulla poena sine culpa, provide the basis for an excusable error on the part of the appellants. ( 25 )
7.

In that connection it should be noted that there is nothing in the text of the legislation at issue that clearly justifies the conclusion that the interpretation contended for by one or other of the parties to the main proceedings is well founded. Admittedly, the specification of the linear dimensions for the housing of the exempted product conveys the idea of a polygonal surface area. It is also true, however, that the provision does not specify what the shape of the housing must be; it simply lays down the maximum dimensions for the housing and does not preclude the possibility that it may be round, so long as it does not exceed those dimensions. However, if the provision is interpreted logically — by seeking to reconstruct the intention of the legislature or the purpose of the provision — it becomes clear that it may not be construed in the narrow sense contended for by the HZA in the main proceedings. In that connection, the circumstances giving rise to the regulation which first provided for the tariff suspension in dispute (Regulation (EEC) No 3841/46) assume particular significance. On that occasion the Council had acted at the suggestion of the United Kingdom Government, in whose proposal the product in question was designated by the alphanumeric combination AD 536 A. It is clear from the manufacturer's description attached to the proposal that the device was available in three different models, contained in rectangular housing with 14 connecting pins and designated ‘D’ (TO-116), or in round housing with 10 connecting pins, designated ‘H’ (TO-100). Consequently, it seems certain that the United Kingdom's proposal, the wording of which was subsequently reproduced in the text of the regulation, covered analog-to-digital converters of the type described, contained in either polygonal or round housing. On the other hand, there is nothing in the file to suggest that the shape of the housing was a consideration of any importance at the time when the conditions for the suspension of the tariff were determined.
9.

The defendant insurance office contends, for its part, that, by virtue of Article 6 thereof, the regulation has replaced social security conventions binding two or more Member States exclusively. According to the defendant, those conventions may at any time be renegotiated between the Contracting States, and the aforementioned Article 6 must be regarded as the result of such a renegotiation. The defendant also contends that the judgment in Rönfeldt was based on entirely different facts and that the decision given in it cannot therefore be applicable in the present case. The defendant states, more particularly, that the person entitled in Rönfeldt was not in a position, by reason of the differences in the age limits applied by the two Contracting States, to plead rights arising from insurance periods completed abroad. According to the defendant, the situation is different, however, in the case of Mr Thévenon. To the extent to which he fulfils the relevant administrative and medical criteria, Mr Thévenon can obtain benefits from the French insurance institution. Moreover, according to the defendant, the Franco-German Convention in issue does not constitute ‘legislation’ within the meaning of Article l(j) of the regulation, and it cannot therefore be maintained that the insured is being deprived of his social rights under national law by reason of the exercise by him of his right to freedom of movement. According to the defendant insurance office, it is necessary, in order to assess whether or not the insured is losing any of his social rights, to compare him with a person who has completed the whole of his insurance record in a single Member State. In such a case, however, the insured cannot, according to the defendant, claim advantages arising from a bilateral convention, since he has only been employed in one State. Lastly, the defendant relies on Article 30(3) of the Vienna Convention on the Law of Treaties of 23 May 1969, which provides that, where all the parties to an earlier treaty are also parties to a later treaty and the earlier treaty is still in force, that earlier treaty is to apply only in so far as its provisions are compatible with those of the later treaty.
29.

The applicant contends that, even if Article 213 may in principle constitute an autonomous legal basis, it was not the appropriate legal basis for the contested regulation. According to the applicant, the regulation would have had to confine itself, if it was to be properly based on Article 213, to authorizing the Commission to collect data from existing business registers. The applicant maintains that the regulation goes further and that its primary aim is to create an instrument for the harmonization of business registers in the Member States. The applicant cites the first recital in the preamble, which states that ‘the Single Market increases the need to improve statistical comparability in order to meet Community requirements’. The applicant also points out that the regulation contains 11 articles, of which only one (namely, Article 6) is directly concerned with the transmission of information from the Member States to the Commission; the greater part of the regulation's text is concerned with the creation and updating of harmonized registers in the Member States. The appropriate legal basis was, according to the applicant, Article 100A of the Treaty, since the primary object of the regulation was to assist the establishment and functioning of the internal market. The applicant sees confirmation of its view in the previous practice of the Council; Council Decision 81/971/EEC of 3 December 1981 establishing a Community information system for the control and reduction of pollution caused by hydrocarbons discharged at sea ( 9 ) was based on Articles 213 and 235 of the Treaty; and Council Regulation (EEC) No 3330/91 of 7 November 1991 on the statistics relating to the trading of goods between Member States ( 10 ) was based on Article 100A of the Treaty. The applicant states that the contested regulation could not be based on both Article 100A and Article 213 on account of the procedural differences between the two provisions. Citing Commission ν Council (‘titanium dioxide’), ( 11 ) the applicant contends that, given the impossibility of a dual legal basis, the regulation should have been based solely on Article 100A in order to avoid undermining the rights of other institutions (namely, the European Parliament and the Economic and Social Committee).
10.

As regards the first ground of inadmissibility, it should be noted that, as the Court has consistently held, it is for the national court, which alone has direct knowledge of the facts of the case and which must bear the responsibility for the subsequent judicial decision, to assess the relevance of the questions of law raised by the dispute before it and the need to formulate a question under Article 177 of the EC Treaty with a view to obtaining a preliminary ruling which will enable it to deliver judgment. ( 7 ) National courts therefore have very wide powers to refer questions to the Court for a preliminary ruling where they consider that cases before them raise questions of Community law. According to the judgment in Eurico Italia and Others, ( 8 ) it is for the national courts to determine, in the light of the particular features of each case, both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. However, that possibility is afforded them in order to enable them to settle the disputes brought before them. Consequently, a request from a national court may be dismissed where it is plainly apparent that the interpretation of Community law or the examination of the validity of a Community rule, requested by that court, has no bearing on the real situation or the subject-matter of the main proceedings. ( 9 ) That is not, however, the position in the present case. Article 47 of Italian Law No 428/1990, and more particularly paragraph (5) thereof, which lies at the heart of the present case, was adopted in the context of the transposition of the directive into the Italian legal order. The determination of the issue in the main proceedings depends — as is clear from the order for reference — on the extent to which that provision is, or is not, compatible with the directive. The ruling on the interpretation of the directive to be provided by the Court to the national court will facilitate that assessment and will thus enable it to determine the case before it. Consequently, it cannot be maintained that the questions referred have no bearing on the outcome of the main proceedings.
2.

On the expiry of the period for implementation, the Commission had received no communication as to the implementing measures which had been taken, nor did it have any information to suggest that implementation had taken place. It therefore initiated the procedure for failure to fulfil Treaty obligations. By letter of formal notice of 28 June 1991, the Commission allowed Belgium two months within which to present its observations. The Belgian Government obtained a one-month extension of that period, and replied in a letter of 14 October 1991 that a series of provisions for implementing the directive was in preparation. In the absence of further information, the Commission issued a reasoned opinion on 6 November 1992 prescribing a period of two months for the necessary measures to be put into effect. The reasoned opinion remained unanswered, whereupon the Commission brought an action before the Court of Justice on 26 July 1994.
1.

The Giudice Conciliatore, Milan (Italy), who referred this case to the Court, initially sought a preliminary ruling on five lengthy questions, of which he withdrew three a few days before the hearing at the joint request of both parties to the proceedings, following submissions by the office of the Italian State Attorney. The two remaining questions are as follows: ‘1. Pursuant to the EEC regulations implementing in the Community the EEC/EFTA agreements, their additional protocols and subsequent amendments, are the provisions of Council Directive 83/643/EEC also applicable to customs transactions relating to EEC/EFTA trade and products covered by those agreements and subsequent amendments? In particular, with reference to customs transactions relating to products covered by the EEC/EFTA agreements, is legislation of a Member State such as Article 15 of Presidential Decree No 254 of 8 May 1985 and Article 11 of Presidential Decree No 43 of 23 January 1973, Article ll(2)(b) of which limited (contrary to the second indent of Article 5(1) of Council Directive 83/643/EEC of 1 December 1983) the normal business hours of customs offices to six hours daily from Monday to Friday and authorized the charging of the cost of the services for customs transactions effected outside normal business hours, compatible with the abovementioned provisions of Community law? 2. In order to complement and clarify the findings expressly relating to intra-Community trade in the judgment in Case C-209/89 Commission v Italy [1991] ECR I-1575, are the principles set out in that judgment also applicable to trade with nonmember countries and with members of EFTA by virtue of the rules of the EEC Treaty on the prohibition of charges having equivalent effect to customs duties, the Customs Union and the establishment of the Common Customs Tariff and the ensuing secondary legislation? In particular, do the aforementioned provisions of Community law prohibit, with regard also to customs transactions relating to trade with nonmember countries, the enactment and/or the retention by a Member State of national legislation — such as that laid down by the Ministerial Decree of 29 July 1991 (GURI No 193 of 31 July 1971) and 30 January 1971 (GURI of 5 February 1979) — pursuant to which private traders were charged for the cost of services “outside normal business hours”, which is not simply an amount based on the cost per hour of the personnel actually engaged in the customs transactions requested, which are provided at the same time for the forwarding agent, but a single fee for each customs transaction requested, corresponding to the category and duration of the most costly service rendered, and which is in no way related to the charge levied separately for each of the other customs transactions requested by the forwarding agent and provided at the same time?’
20.

The Regulation at issue appears to contain reasoning since it has a preamble setting out a series of explanatory reasons. The preamble contains the following statements: ‘Whereas in order to ensure uniform application of the combined nomenclature, it is necessary to adopt provisions concerning the classification of residues of starch manufacture; Whereas CN code 23031019 includes only residues from the manufacture of starch from maize, but do not cover blends of such residues with products derived from other plants or products derived from maize otherwise than in the course of production of starch by the wet process; Whereas, these residues may, however, contain residues from the extraction of maize germ oil by the wet milling process, screenings from maize used in the wet process in a proportion not exceeding 15% by weight, and residues of maize steepwater, arising from the wet process, including residues of steep-water used for the manufacture of alcohol or of other starch derived products; Whereas residues from the manufacture of starch from maize by the wet process have a starch content not exceeding 28% by weight on the dry product in accordance with the method contained in Annex 1.1 to Directive 72/199/EEC of the Commission, as amended by Directive 93/28/EEC, and a fat content which does not exceed 4.5% on the dry product determined in accordance with method A contained in Annex I to Directive 84/4/EEC of the Commission; Whereas the scope of the subheading in question should be specified, by replacing Additional note 1 to Chapter 23 by the note given in Article 1 of this Regulation; Whereas the Customs Code Committee — Tariff and Statistical Nomenclature Section has not given its opinion within the time-limit indicated by its Chairman.’
Persons entering or leaving the country during a tax year are in general not entitled to refunds under either of those procedures. Article 154(6) of the LIR provides that:

‘Tax deducted from salaries and wages is not repayable where the deduction was made in respect of employees who are resident taxpayers during only part of the year because they took up residence in the country or left it during the course of the tax year’.

Similarly Article 145 of the LIR provides:

‘Employed or retired persons not qualifying for taxation par voie d'assiette are entitled to an adjustment of the deductions made by way of a décompte annuel (annual adjustment). Only taxpayers who, during the twelve months of the relevant tax year, had their tax domicile or habitual residence in the Grand Duchy and taxpayers who, while not fulfilling that condition, were in salaried employment there for at least nine months of the relevant tax year and were in continuous employment during that period, are entitled to a décompte annuel’
85.

If we look rather more closely at the appellants' submission here, we notice that the appellants do not actually allege an infringement of the principle of subsidiarity but rather only assert it without producing any evidence. In submitting that when the regulation was issued no consideration was given to the question of whether such rules might best be adopted at national or Community level, the appellants are making a mere assertion. No evidence of any kind is provided. Nor do the appellants claim that the rules would have been better adopted at national level; on the contrary, they indicate on several occasions that too much power should not be given to the Member States in relation to the restriction of shipments of waste. That means that the appellants' opinion is that this matter should be dealt with at Community level. But that is precisely what the Council has provided for. Even though the Member States are allowed a certain margin of manoeuvre here, it is nevertheless a Community regulation. It was issued by the Community, is addressed to all Member States, makes uniform rules and imposes the same requirements on all Member States. Moreover the measures adopted by the Member States must be in conformity with the Treaty. There is therefore no doubt that the sphere of waste shipments is regulated at Community level. When the appellants claim that excessive powers have been conceded to the Member States, that should in any event be examined under the heading of infringement of the Treaty, which has already been done. Infringement of the principle of subsidiarity is therefore not proved in any case.
(and Case C-39/95 Pierre Goupil (Reference for a preliminary ruling from the Tribunal de Police, La Rochelle) (Social legislation relating to road transport – Derogation for vehicles used in connection with refuse collection and disposal))
((Freedom of movement for persons – Military service in the country of origin – Contributions to a supplementary old-age and survivors' pension scheme based on a collective agreement in the country of employment))