ddrg/super_eurlex huggingface dataset:
53.

The findings of fact are not contested by the defendant. The parties merely disagree about the legal consequences of those findings. The Commission considers that the maximum admissible concentrations laid down by the directive are absolute limits, so that if the limits are exceeded there is automatically an infringement of the directive; the defendant, on the other hand, takes the view that the directive merely imposes the obligation to take all practicable steps. According to the defendant, there is no Treaty infringement where the Member State cannot keep within the parameters laid down by the directive despite taking all possible steps to do so. A Member State cannot, in its view, be held responsible for the conduct of third parties or the state of the physical environment which is outside of its control. The dispute between the parties raises the question whether Article 7, in conjunction with Article 19, of the directive imposes an obligation to achieve a result or merely an obligation to take certain action which may be satisfied even where the desired result is not achieved.
JOINED OPINIONS OF MR ADVOCATE GENERAL LENZ DELIVERED ON 11 JULY 1991. - COMMISSION OF THE EUROPEAN COMMUNITIES V FRENCH REPUBLIC. - FAILURE OF A MEMBER STATE TO FULFIL ITS OBLIGATIONS - LIMIT VALUE FOR LEAD IN THE AIR. - CASE C-13/90. - FAILURE TO FULFIL AN OBLIGATION - AIR QUALITY STANDARDS FOR NITROGEN DIOXIDE. - CASE C-14/90. - FAILURE TO FULFIL AN OBLIGATION - AIR QUALITY LIMIT VALUES AND GUIDE VALUES FOR SULPHUR DIOXIDE. - CASE C-64/90.



European Court reports 1991 Page I-04327

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General C.O. Lenz delivered his Opinion on 11 July 1991. (*) He concluded as follows:

Having regard to the legal situation persisting in France there is practically no alternative other than to agree, in the three cases with which we are concerned, with the Commission' s view and declare that by failing to adopt within the prescribed period the laws, regulations and administrative provisions needed in order to comply with Council Directive 82/884/EEC of 3 December 1982 on a limit value for lead in the air, Council Directive 85/203/EEC of 7 March 1985 on air quality standards for nitrogen dioxide and Council Directive 80/779/EEC of 15 July 1980 on the air quality limit values and guide values for sulphur dioxide and suspended particulates, the French Republic has failed to fulfil its obligations under the EEC Treaty. In accordance with the claims in the applications the defendant should also be ordered to pay the costs.

(*) Original language: German.
61990C0309

Opinion of Mr Advocate General Darmon delivered on 1 October 1991. - Commission of the European Communities v Hellenic Republic. - Failure of a Member State to fulfil its obligations - Professional activities in architecture. - Case C-309/90.



European Court reports 1991 Page I-05311

Pub.RJ Page Pub somm
4.

Before Article 3a was amended, Article 3a(l) read, so far as is relevant, as follows: ‘Producers ... — whose period of non-marketing or conversion, pursuant to the undertaking given under Regulation (EEC) No 1078/77, expires after 31 December 1983, or [in certain cases, including Ireland] after 30 September 1983 ...; ... shall receive provisionally, if they so request within three months from 29 March 1989, a special reference quantity...’. However, in Case C-189/89 Spagl, cited above in paragraph 3, the time-limits for the expiry of non-marketing or conversion undertakings which were set by that provision were held to be invalid. Article 3a(l) was accordingly amended by Regulation No 1639/91 in order to enable a quota to be granted to applicants whose undertakings expired in the course of 1983 (or, as the case may be, between 1 January and 30 September 1983), provided that they submitted an application within three months from 1 July 1991. In the fourth recital to Regulation No 1639/91, the new time-limits were justified as follows: ‘Whereas in its Judgments [in Case C-189/89 Spagl and Case C-217/89 Pastätter] the Court of Justice stated that the Community legislator may validly introduce a time-limit concerning the expiry of the non-marketing or conversion period with the aim of preventing producers from benefiting from Article 3a of Regulation (EEC) No 857/84 if they did not deliver milk during all or part of the reference year in question for reasons not connected to a non-marketing or conversion undertaking; whereas all the Member States concerned took 1983 as the reference year; whereas, therefore, a producer, who, with every opportunity to do so, had not resumed milk production between 1 January 1983 and 1 April 1984, had adequately demonstrated his wish to abandon milk production definitively for personal reasons not connected to the undertaking given or its consequences; whereas, therefore, only those producers whose period of non-marketing or conversion expired after 31 December 1982 should be allowed to benefit from the provisions of Article 3a.’ Although that recital refers to both of the Court's judgments, it was in fact only in the Spagl case that the Court considered the validity of the time-limit laid down by Article 3a(l). In paragraphs 15 and 16 of its judgment, the Court stated that that provision was invalid in so far as it was liable to exclude from the benefit of Article 3a producers who had not delivered milk during all or part of the relevant reference year, as a result of the carrying out of an undertaking given under Regulation No 1078/77. Thus, in amending the time-limit, the legislator took the view that producers could, consistently with the Court's judgment in Spagl, be excluded from the benefit of Article 3a in cases where the undertakings carried out by those producers did not overlap to any extent with the reference year for an award of a quota under Article 2.
39.

The bathing waters at issue may be taken to constitute bathing water within the meaning of the directive. The Commission's submission that even under the application of the original 1979 criteria the beaches ought to have been identified as bathing areas has not been refuted. Moreover, in 1987 the United Kingdom itself expressly identified the waters in question and notified them to the Commission by letter of 2 February 1988. To the extent to which the United Kingdom in its defence states that new criteria have since been drawn up such as to identify the waters for the first time, that argument must be countered in line with the terms set out above by stating that the substantive scope of application of the directive cannot be altered by amendments to its implementing provisions. The United Kingdom's arguments tend to militate against the correctness of the original criteria, which, however, for these purposes does not in the final analysis need to be decided. It is sufficient to state that from the beginning the waters in question fell under the directive, which means that by the end of 1985 they were required to conform to the norms of the directive, unless any derogations applied.
Opinion of Mr Advocate General Gulmann delivered on 16 January 1992. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Failure to transpose directives. - Case C-77/91.



European Court reports 1992 Page I-00557



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. Council Directive 81/851/EEC of 28 September 1981 (1) on the approximation of the laws of the Member States relating to veterinary medicinal products and Council Directive 81/852/EEC of 28 September 1981 (2) on the approximation of the laws of the Member States relating to analytical, pharmaco-toxicological and clinical standards and protocols in respect of the testing of veterinary medicinal products should, under Article 51(1) of the former and Article 3 of the latter directive, have been implemented by the Member States by 28 September 1983.

2. By an application of 22 February 1991 the Commission brought an action for a declaration that, by not adopting the measures necessary to comply with Council Directives 81/851 and 81/852 within the periods prescribed therein, the Italian Republic has failed to fulfil its obligations under Articles 5 and 189 of the EEC Treaty.

3. The Italian Republic has admitted that the provisions necessary to implement Council Directives 81/851 and 81/852 in its national law have not yet been adopted.

4. I therefore have no choice but to propose that the Court should give the declaration sought by the Commission and order the Italian Republic to pay the costs.

(*) Original language: Danish.

(1) - Official Journal 1981 L 317, p. 1.

(2) - Official Journal 1981 L 317, p. 16.
15.

In the 1985 judgment in Deak, cited above, the Court answered that question in the negative. Deak was concerned with the Belgian authorities' refusal to grant special unemployment benefits for young persons unable to find employment after completing their studies or finishing their apprenticeships to Deak, a Hungarian national who was living in Belgium with his mother, a migrant worker of Italian nationality. The refusal to grant Deak the special unemployment benefits was based on his Hungarian nationality, since the applicable Belgian legislation provided that those benefits should be granted to foreign workers and stateless persons only ‘in so far as is provided in an international convention’. Since there was no convention between Hungary and Belgium on the matter, Hungarian children of Belgian nationals also could not claim entitlement to the special benefits. However, the Court held that ‘[para. 24] ... under Article 7 of Regulation No 1612/68 a Member State cannot refuse to grant the dependent children of a worker who is a national of another Member State the benefits provided under its legislation for young persons seeking work, on the grounds that those children are nationals of another Member State. [para. 25] That conclusion is not altered by the fact that the child in question is a national not of a Member State but of a nonmember country, as in the case before the national court. [para. 26] As the Commission has correctly pointed out, the principle of equal treatment laid down in Article 7 of Regulation No 1612/68 for workers who are nationals of a Member State and, indirectly, for members of their families applies without regard to the nationality of those family members. That is expressly confirmed by the wording of Article 11 of that regulation, which provides that the spouse of a national of a Member State who is pursuing an activity as an employed or self-employed person in the territory of another Member State and those of his children who are under the age of 21 years or who are dependent on him have the right to take up any activity as an employed person throughout the territory of that same State, “even if they are not nationals of any Member State”.’ Particular attention should be given to the Court's reason for its view that the grant of the special unemployment benefits to migrant workers' children could not be linked to any nationality condition: ‘[para. 23] A worker anxious to ensure for his children the enjoyment of the social benefits provided for by the legislation of the Member States for the support of young persons seeking employment would be induced not to remain in the Member State where he had established himself and found employment if that State could refuse to pay the benefits in question to his children because of their foreign nationality. As was pointed out in the judgment of 16 December 1968 [in Case 63/76 Inzirillo] ... that result would run counter to the objective of the principle of freedom of movement for workers within the Community.’
21.

As a preliminary point it is worth emphasizing that the transitional provisions which enable exemptions to be made from the rules of the directive and thus delay implementation of the harmonization of the rules of the Member States, which is the aim of the directive, must be construed strictly. It would, nevertheless, I believe be wrong for the Court to interpret Article 28(3) in a way that completely ruled out for the possibility that exemptions might be applied in part. I find it difficult to see that there can be substantive grounds for an absolute requirement that the transitional system should only be used if a Member State completely omits to implement the system in Article 26. It is hard to see that the uniform application of Community law in the Member States will be adversely affected if a Member State chooses to implement the main principles in Article 26 and omits solely to implement the special rules in Article 26(3) as far as clearly delimited and easily identifiable activities are concerned. The exemption does not alter the principle in Article 26(2) according to which transactions performed by a travel agent are to be treated as a single service supplied by the travel agent to the traveller. Under German law, in conformity with Article 26(2), it is the travel agent's margin which is taxed. The special exemption simply entails a reduction on the content of that margin in relation to what ensues from the rules laid down in Article 26(3). It is not easy to see why legal certainty is improved if the transitional provision may only be used by the German Government for the purpose of maintaining in their entirety the earlier rules applying to travel agents. It might even be maintained that a narrow interpretation of the transitional provision could have adverse effects for the uniform application of the directive in the Member States. A restrictive interpretation imposes an ‘all-or-nothing’ choice on the Member States. That choice would compel a Member State which finds it necessary to maintain an existing exemption to maintain the existing legal position in its entirety, even if it were considered possible, appropriate and desirable otherwise to implement the system laid down in the directive on the subject. There is no doubt that from the point of view of uniform application of law in the Community it is unfortunate that it continues to be possible for the Member States to maintain their own special rules on the basis of the transitional provision. It does not, however, seem reasonable to me in that context to interpret the transitional provision to the effect that as long as the Member States wish to make use of it they should be prevented from undertaking a partial implementation of the special system in Article 26 — implementation which, when all is said and done would be beneficial for the uniform legal application of Article 26 in the Member States and after all would be a first step towards complete implementation of that provision.
18.

A more weighty objection, in my view, is the one to the effect that the fact that Article 71(l)(a)(ii) refers frontier workers who are wholly unemployed to the authorities of the State in which they reside makes it more difficult for them to find employment in the State in which they last worked. It is true that under that provision only the authorities in the State of residence are obliged to pay benefits. But that does not necessarily prevent the authorities in the State in which the frontier workers were employed from also assisting them in their search for new jobs. In this connection, I might perhaps point out that in proceedings which came before the Court some years ago the Bundesanstalt für Arbeit (Federal Employment Office) gave an assurance that the employment services were prepared to help in the search for work even though the worker might not be entitled to benefits. ( 5 ) However, it should observed above all that the provision contained in Article 71(l)(a)(ii) means only that a frontier worker who is wholly unemployed finds himself in the same position in the State in which he resides as a worker who has hitherto resided and worked in that State and is now seeking for the first time employment in another Member State. Such a worker would also receive unemployment benefit in accordance with the provisions of his State of residence, and not in accordance with those of his future State of employment. Also the further criticism that Article 71(l)(a)(ii), unlike Article 71(l)(b), prevents the person concerned from electing between the competent authorities of the State of residence and those of the State of employment cannot alter that assessment. In the judgment in Miethe the Court has already held that such a right of choice is precluded in the case of Article 71(l)(a)(ii), without taking exception to this. ( 6 ) In addition, regard is to be had to the fact that even if such a right of election existed, a frontier worker who was wholly unemployed would not be precluded from applying to the authorities in the State in which he resided.
5.

My third difficulty with the Commission's application concerns the second part of the claim, that is to say, the restrictive conditions connected with the importation of animal semen which, in the Commission's view, are contrary to Directive 77/504 and Decision 88/124. ( 5 ) In introduction I should mention that it seems to me that properly any restrictive conditions connected with import licences should be found to be an infringement of Article 30 of the Treaty and not of provisions in directives and decisions whose purpose is to remove the possibility of Member States relying on Article 36 of the Treaty. ( 6 ) Moreover, it is not clear to me to which restrictive conditions the Commission is referring in that part of its claim. The Irish Government has, as stated, contended that even before the proceedings were instituted it had begun to apply the licensing system in conformity with the relevant Community rules. That submission is, to be sure, not supported by evidence, but on the other hand the Commission has not shown that it is incorrect. I find it difficult on the above basis to assess whether the administrative practice operating in Ireland at the present time is contrary to Community law. Since the burden of proof lies on the Commission, it seems to me doubtful whether it can be said that restrictive measures are in operation that are contrary to Community law in connection with the actual administration of the licence system. On the other hand — and this is in fact more important than what has just been stated — I agree with the Commission that the import licensing system administered in Ireland is contrary to Community law because it is founded upon legislation which empowers the Minister to lay down conditions for import licences without any indication of what conditions are imposed. That is particularly unfortunate in a situation where it is clear that a number of conditions under earlier administrative practice were patently contrary to Community law. It is especially necessary in such a situation that a change in practice should be notified to those concerned in a binding and clear manner. The legal situation which, according to the Irish Government's evidence, obtains in Ireland is per se contrary to Article 30 because for those concerned it is not sufficiently transparent, constituting a real restriction on the free movement of goods between Member States, on which see inter alia the judgment in Case 168/85 Commission v Italy [1986] ECR 2945, in particular paragraph 13. If the Commission's claim is rendered more precise in those respects I consider that its case may in principle be upheld.
4.

The sickness and maternity insurance scheme is governed by Article 611 et seq. of the Social Security Code. Those articles provide for the establishment of a national fund and various regional mutual funds. The Caisse Nationale d'Assurance Maladie et Maternité des Travailleurs Non-salariés, a private organization responsible for managing a public service, is required, inter alia, to ensure that the scheme is financed on a unitary basis, to foster, coordinate and oversee the activities of the regional mutual funds and of the organizations with which they have contractual arrangements, and to provide services in the public interest in health and social spheres. The regional mutual funds, of which Camulrac is one, are in turn responsible for the management of the social security schemes in their own areas. The national and regional funds are all managed by a governing board. At least two out of three of the members of such boards are elected directly by the persons insured in the case of the regional funds, or by board members of the regional funds in the case of the national fund. The membership of the governing board also includes persons appointed by inter-ministerial order (in the case of the national fund) or by prefectorial order (in the case of the regional funds). The insurance scheme is financed by contributions from its members, by payments from other compulsory social security schemes and by small percentages of various taxes. In 1989 and 1990, the contributions from members represented, according to the French Government, 1.87% of revenue. The rate of contributions and the method by which they are calculated are determined by order, on the basis of the earnings for the previous year of workers in active employment and of the pension income of pensioners. However, pensioners are exempted from social security contributions if their income is less than a specified amount. The regional funds entrust the collection of contributions and the payment of benefits, under appropriate contracts, to insurance companies or to organizations governed by the Mutual Societies Code which have already been approved by the national fund. Each year the organizations under contract receive a sum of money to offset the management costs they incur. That sum is in proportion to the number of members and is called a ‘management fee’. The activities of the various funds and organizations under contract are regulated by the State, in particular by the Minister for Social Security and the Minister for the Budget.