ddrg/super_eurlex huggingface dataset:
Opinion of Mr Advocate General Mischo delivered on 17 May 1988. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Council Directive 82/470/EEC into national law - Effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies and in storage and warehousing. - Case 310/86.



European Court reports 1988 Page 03987



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . As nothing new was revealed at the hearing and the facts are not in dispute I can deliver my Opinion forthwith and it will be very brief .

2 . Article 8 of Council Directive 82/470/EEC of 29 June 1982 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies ( ISIC Group 718 ) and in storage and warehousing ( ISIC Group 720 ) ( 1 )provides that Member States are to adopt the measures necessary to comply with the directive within 18 months of its notification and are to inform the Commission thereof forthwith . The 18 month period expired on 2 January 1984 .

3 . The Italian Government acknowledges that it has not fulfilled its obligations but points out that a draft law to implement the directive is being prepared .

4 . That circumstance does not excuse the fault which is complained of . As the Court has consistently held, a Member State may not plead provisions, practices or circumstances existing in its own legal system in order to justify a failure to comply with obligations and time-limits laid down by directives.(2 )

5 . Consequently, I suggest that the Court declare that by failing to adopt within the prescribed period the provisions necessary to comply with Council Directive 82/470 of 29 June 1982 the Italian Republic has failed to fulfil its obligations under the EEC Treaty, and order it to pay the costs pursuant to Article 69 ( 2 ) of the Rules of Procedure .

(*) Translated from the French .

( 1 ) Official Journal L 213 of 21 July 1982, p . 1 .

( 2 ) Judgment of 24 November 1987 in Case 125/86 Commission v Italian Republic (( 1987 )) ECR 4669, at paragraph 6; see also, more recently, the judgment of 14 January 1988 in Joined Cases 227 to 230/85 Commission v Belgium (( 1988 )) ECR 1, at paragraph 10, or the judgment of 27 April 1988 in Case 225/86 Commission v Italy (( 1988 )) ECR 2271, at paragraph 10 .
Opinion of Mr Advocate General Darmon delivered on 29 November 1988. - Blaupunkt-Werke GmbH v Oberfinanzdirektion Berlin. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Composite video camera-recorder. - Case 245/87.



European Court reports 1989 Page 00573

Pub.RJ Page Pub somm



Opinion of the Advocate-General

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Mr Advocate General Darmon delivered his Opinion on 29 November 1988 . (*) He proposed that the Court should hold that :

A composite camera-cum-video recorder, which enables pictures and sound to be directly reproduced, prerecorded cassettes to be reproduced and television programmes to be recorded and reproduced by means of the addition of an adapter of little technical and economic significance to be acquired separately, must be classified pursuant to 3(b ) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff as if it consisted of the television image and sound recorder and producer which is an intrinsic component and gives it its essential character .

(*) Original language : French .
Opinion of Mr Advocate General Lenz delivered on 10 January 1989. - Commission of the European Communities v Council of the European Communities. - Temporary importation of containers - Action for annulment - Legal basis. - Case 275/87.



European Court reports 1989 Page 00259

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Opinion of the Advocate-General

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Mr Advocate General Lenz delivered his Opinion on 10 January 1989 . (*) He concluded that the Court should rule as follows :

( 1)Council Regulation No 2096/87 of 13 July 1987 on the temporary importation of containers is void;

( 2)The provisions of that regulation shall continue to have effect until a regulation is adopted pursuant to this judgment;

( 3 ) The defendant is ordered to pay the costs .

(*) Original language : German .
Opinion of Mr Advocate General Darmon delivered on 14 February 1989. - Wilhelm Schmitt v Bundesversicherungsanstalt für Angestellte. - Reference for a preliminary ruling: Sozialgericht Hamburg - Germany. - Article 51 of the EEC Treaty - Possibility of back-paying contributions to a pension insurance scheme. - Case 29/88.



European Court reports 1989 Page 00581

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Opinion of the Advocate-General

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Mr Advocate General Darmon delivered his Opinion on 14 February 1989 . (*) He proposed that the Court should rule that :

Article 51 of the EEC Treaty and Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community are not applicable for the purpose of determining the conditions of affiliation to a social security scheme, whether compulsory or voluntary .

(*) Original language : French .
61989C0137

Opinion of Mr Advocate General Lenz delivered on 13 February 1990. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Free movement of goods - Levying of a charge on the importation of live animals - Charge having an effect equivalent to a customs duty. - Case C-137/89.



European Court reports 1990 Page I-00847

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Opinion of Mr Advocate General Mischo delivered on 13 March 1990. - Commission of the European Communities v Kingdom of Belgium. - Failure by a Member State to fulfil its obligations - Reduction in salaries paid to teachers seconded to the European schools. - Case C-6/89.



European Court reports 1990 Page I-01595

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Opinion of the Advocate-General

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Mr Advocate General Mischo delivered his Opinion on 13 March 1990 . (*) He proposed that the Court should :

"uphold the Commission' s application and declare that by adopting Article 2 of Royal Decree No 471 of 24 October 1986, reducing by 50% the secondment pay or the salary allowance granted to members of the teaching staff seconded to the European Schools in circumstances which lead to an increase in the burden on the Community budget, the Kingdom of Belgium has failed to fulfil its obligations under Article 5 of the EEC Treaty, and order the Kingdom of Belgium to pay the costs ."

(*) Original language : French .
42.

As far as Article 86 is concerned, the Belgian Government accepted at the hearing that it had the effect claimed by the Commission and that it was clear enough to be applied under Article 90(3). None the less, the Belgian Government maintains that it is possible to envisage a number of ways in which Member States could comply with their obligations under Article 86 in the field covered by the services directive and that in these circumstances the Commission was not entitled to require the Member States to adopt one particular way of achieving that result. By way of example, the Belgian Government says that it is possible to comply with Article 7 of the directive in a number of ways. Far from supporting the Belgian Government's argument, however, this suggests that Article 7 simply imposes on the Member States the result to be achieved, while leaving to the national authorities the choice of form and methods, in accordance with Article 189 of the Treaty. The Belgian Government has not specified any other respect in which the directive might have been made more flexible while at the same time offering equivalent safeguards against infringements of Article 86. I would therefore reject the argument that the Commission exceeded its powers under Article 90(3) by laying down too rigid a framework for the elimination of infringements of Article 86.
Opinion of Mr Advocate General Gulmann delivered on 5 November 1991. - Commission of the European Communities v Kingdom of Belgium. - Failure to fulfil obligations - Non-compliance with a judgment of the Court. - Case C-19/91.



European Court reports 1991 Page I-05937

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Opinion of the Advocate-General

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Mr Advocate General Gulmann delivered his Opinion on 5 November 1991. (*) He proposed that the Court should declare that, by failing to comply with the judgment of the Court of 24 May 1988 in Case 307/86, the Kingdom of Belgium has failed to fulfil its obligations under Article 171 of the EEC Treaty, and that the Kingdom of Belgium should be ordered to pay the costs.

(*) Original language: Danish.
1.

The reference for a preliminary ruling which is the subject of these proceedings is for the interpretation of a number of provisions of Community legislation on the grant of subsidies for oil seeds harvested and processed in the Community. In this Opinion, I shall be confining myself to the aspects of that legislation which are the most relevant for present purposes. The grant of the subsidy for oil seeds harvested and processed in the Community is provided for by Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organization of the market in oils and fats ( 1 ) (Article 27). Subsequently, Regulation of the Council (EEC) No 2114/71 of 28 September 1971 on the subsidy for oil seeds ( 2 ) defined the principles underlying the grant of the subsidy itself by providing in particular for the control of seeds at the oil mill (Article 2(1)) and the introduction of a Community subsidy certificate intended to provide proof that the seeds have been placed under control (Article 4). That certificate is to be issued ‘on the day on which the Member State concerned takes over control of the seeds at the oil mill in which these are processed’ (second paragraph of Article 6). The detailed rules for the application of the subsidy system were laid down by the Commission in Regulation (EEC) No 1204/72 of 7 June 1972. ( 3 ) According to Article 3(1) of that regulation, the control is to be exercised ‘from the time the seeds enter the oil mill until they are processed’. Article 5 of that regulation further provides that the Community subsidy certificate is to consist of, in particular, ‘one part, designated ID, certifying that the quantity of seeds harvested in the Community which is identified is subject to the control’. The application for the ID part is to be ‘considered only if the seeds entered the oil mill at the latest on the day on which it was submitted’ (Article 6(2)) and the relevant certificate is to be regarded as issued ‘on the day on which the application is lodged’ (Article 12). Lastly, Article 10 provides that the ‘ID part of the certificate makes it obligatory to process the identified quantity within a period of 270 days after its day of issue’. The ID part of the application for the certificate also plays an important role in determining the amount of the subsidy, in so far as it is the amount valid on the day on which the application for the ID part of the certificate was lodged (first paragraph of Article 35). ( 4 )
6.

The calculation of the value of the temporary export goods is a different matter. For such products the Community legislature expressly stipulated the method of calculating their value in the second subparagraph of Article 13(2) of Regulation No 2473/86, laying down that ‘the value of the temporary export goods shall be that taken into consideration for those goods in accordance with Article 8(1 )(b)(i) of Council Regulation (EEC) No 1224/80, as last amended by Regulation (EEC) No 1055/85, when determining the customs value of the compensating products or, if the value cannot be determined in this way, the difference between the customs value of the compensating products and the processing costs determined by reasonable means’. I would point out in passing that Article 8(1)(b)(i) lays down that in order to determine the customs value under Article 3 of Regulation No 1224/80, it is necessary to add to the price actually paid or payable for the imported goods the value, apportioned as appropriate, of materials, components, parts and similar items incorporated in the imported goods where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually-paid or payable. In practice, provision is made for the value of the temporary export goods to be calculated in two distinct ways. The first sets out what is probably the more frequent case, in which the customs value of the compensating products is determined in accordance with Article 3 of Regulation No 1224/80 and the temporary export goods are supplied by the buyer free of charge or at reduced cost. In those circumstances, in order to ascertain the customs value of the compensating products it will be necessary to make the adjustments provided for in Article 8 of Regulation No 1224/80 and it will therefore be possible to use the value so determined for establishing the value of the temporary export goods as well. The second possibility envisaged in the regulation, by contrast, relates to situations in which the product incorporated in the imported goods has been supplied for valuable consideration, as in the present case, so that the prerequisites for applying Article 8 of Regulation No 1224/80, which refers to products supplied by the buyer free of charge or at reduced cost, are not met. In those circumstances, according to the provision in question, the value of the temporary export goods must therefore be determined by deducting from the customs value of the compensating goods the processing costs determined by reasonable means.
24.

Secondly, once it is established that the issue falls to be determined by Community law, it is in my view clear that the respective rights of Mr Knüfer and Mr Buchmann must be determined in accordance with the legislation in force at the time when the lease expired and the property reverted to its owner. In the present case the question is purely academic because there is no material difference between the two provisions. But if we suppose, for the sake of argument, that the later regulation laid down a new criterion for the division of the milk quota, different from that contained in the earlier regulation, it would be manifestly wrong for the national court to apply the later regulation simply because that was the regulation in force at the time when the matter came to be judicially determined. The Westzucker judgment cited by the Commission has no bearing whatsoever in the present case, which has nothing to do with the application of amending legislation to the future consequences of situations that arose under the former law. If Regulation No 1546/88, which came into force on 4 June 1988, were applied to the division of the milk quota between Mr Knüfer and Mr Buchmann, as a result of the reversion of the farm to its owner on 5 November 1986, that would constitute a clear case of retroactive application, for which however there is absolutely no justification. The relevant principles were clearly formulated in paragraphs 9 and 10 of the Court's judgment in Joined Cases 212/80 to 217/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735, at p. 2751: ‘Although procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, this is not the case with substantive rules. On the contrary, the latter are usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such an effect must be given to them. This interpretation ensures respect for the principles of legal certainty and the protection of legitimate expectations, by virtue of which the effect of Community legislation must be clear and predictable for those who are subject to it. The Court has repeatedly emphasized the importance of those principles, in particular in the judgments of 25 January 1979 in Case 98/78 Räcke v Hauptzollamt Mainz ([1979] ECR 69) and Case 99/78 Decker v Hauptzollamt Landau ([1979] ECR 101), in which it stated that in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication and that it may be otherwise only exceptionally, where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.’
10.

I consider that that question should be answered in the affirmative. Article 5 of the basic regulation lays down the Regulation's general rule on the use of the names for the categories of spirit drinks defined in Article 1(4). The opening words of Article 5 are: ‘Without prejudice to measures adopted pursuant to Article 6 ...’. That reservation shows that the Council must have had the intention of making it possible for the Commission to lay down derogations from Article 5 by means of rules adopted on the basis of the power under Article 6. It is also significant in this respect that Article 6(3) provides that the rules adopted by the Commission ‘shall be designed in particular to prevent the creation of confusion by the names referred to in those paragraphs, especially regarding products in existence when this Regulation enters into force’. The Commission claims — rightly in my view — that that provision shows inter alia that the legal acts adopted in implementation of Article 6 are also, perhaps in particular, intended to resolve the problems arising for products that have traditionally been sold under descriptions which could no longer be used if the general rules of the basic regulation applied. The rules on derogations are thus to serve inter alia to maintain the possibility of using traditional descriptions for products even if those descriptions do not fit in the general scheme of the Regulation. The rules adopted by the Commission are also intended to ensure, by means of general labelling and presentation requirements, that consumers are not misled by the use of those traditional descriptions. The Commission's application of Article 6 which was approved by the Implementation Committee for Spirit Drinks in accordance with the procedure under Article 15 of the basic regulation also appears to me to be well founded. The derogation applies only for a limited number of compound terms. The authorized terms have traditionally been understood in the way in which they have been applied for many years and have been widely used. The rules cover spirit drinks that meet the criteria to be described as liqueurs and which have traditionally been produced on the basis of ethyl alcohol of agricultural origin; see in this respect the wording in the preamble to the implementing regulation: ‘it should be permitted that certain composite names of liqueurs may be maintained even though the alcohol is not obtained or is not obtained exclusively from the spirit drink indicated’. The labelling and presentation requirements in Article 7b(3) ensure that consumers will not be misled by the use of the compound terms. Furthermore that interpretation of Article 6 is borne out by the information produced by the Danish Government concerning the proceedings in the Council prior to the adoption of Article 6. The Danish Government's observations are reproduced in the last section of the Report for the Hearing and have not been contested by the Spanish Government at the hearing.
13.

Although the Universal Declaration and more specifically Article 22 thereof thus form part of the general principles of Community law whose observance is ensured by the Court, I am not of the view that the Court in this specific case is in a position to examine whether they are being complied with. It seems to me that the French legislation in issue is not wholly situated within the framework of Community law within the meaning given thereto in the ERT judgment. Undoubtedly it is situated within that framework in so far as it — from a concern to implement European social security law — grants rights to family members of nationals from other Member States. But in view of the Court's abovementioned case-law according to which the Community rules on freedom of movement for workers are not applicable to purely domestic situations within a Member State, nor is the French legislation situated within the framework of Community law in withholding a specific social security benefit from family members of its own nationals and in that manner applying reverse discrimination to the detriment of such family members. In those circumstances it is not for the Court to enquire whether that part of the contested national legislation, and the reverse discrimination flowing therefrom, are compatible with the fundamental rights which form part of Community law. It is therefore for the national court — having regard also to other social security rights which Mr Koua Poirrez may possibly claim — to verify whether that part of the French national legislation is compatible with Article 22 of the Universal Declaration and, if not, whether Mr Koua Poirrez may derive rights from that article.
4.

Sale at reduced prices makes it possible to reduce Community butter stocks albeit to the benefit of a specific sector of the food industry, namely that of pastry products and ice-cream. It thus set up a standing tendering procedure. During the period of validity of the standing invitation, individual invitations to tender are issued. ( 4 ) The successful tenderer is the one making the highest bid compared to the minimum price fixed. ( 5 ) Only those who undertake to have the butter processed in accordance with the provisions of the Regulation may submit a tender ( 6 ) and in this respect they must lodge a so-called processing security, intended ‘to ensure that the butter is used in accordance with this Regulation’, the amount of which is to be equal to ‘the differences between the market price of the butter and the minimum prices fixed’. ( 7 ) Once processing has been carried out in accordance with the requirements laid down and within the period prescribed, the security is to be released. ( 8 ) The Member States in whose territory processing and incorporation take place are to carry out inspections and to check that the requirements have been met. ( 9 ) Non-compliance with certain conditions referred to in the Regulation is penalized by total or partial forfeiture of the security. ( 10 )
1.

By application lodged on 20 July 1992, the Commission claimed that the Federal Republic of Germany did not adopt the measures needed to comply with Council Directive 87/540/EEC of 9 November 1987 on the access to the occupation of carrier of goods by waterway in national and international transport and on the mutual recognition of diplomas, certificates and other evidence of formal qualifications for this occupation. ( 1 ) The German Government does not deny the infringement which is alleged against it; it merely states that a draft law intended to transpose the directive into national law has now been completed and should come into force very shortly.