ddrg/super_eurlex huggingface dataset:
17.

It may be noted, moreover, that Regulation No 1336/86 is not the only regulation which provides for the granting to producers of compensation from Community funds for undertaking to cease or limit production. Indeed, there is a plethora of such regulations. Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops ( 11 ) provides for compensation to be paid to producers who ‘set aside’ areas of land so that arable crops will not be produced on them. Council Regulation (EEC) No 1200/90 of 7 May 1990 on the improvement of the Community production of apples provides for a premium to be paid to apple producers who undertake to grub up apple orchards and to refrain from planting apple trees (Article 2). ( 12 ) Council Regulation (EEC) No 1442/88 of 24 May 1988 on the granting, for the 1988/89 to 1995/96 wine years, of permanent abandonment premiums in respect of winegrowing areas ( 13 ) contains similar provisions with respect to vines. More generally in the agricultural sector, Article 5 of Council Regulation (EEC) No 4256/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the EAGGF Guidance Section, ( 14 ) contains a list of the types of action undertaken by the Member States to encourage the adjustment of agricultural structures which may be assisted by the Community Structural Funds. Article 21(6) of Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, ( 15 ) envisages that the action undertaken by the Member States referred to above may be designed to support agricultural incomes.
2.

According to the first recital in the preamble to Regulation No 1824/80, on 28 May 1980 the Council of the European Communities declared that by way of Community action it proposed to grant Benin 5000 tonnes of common wheat under its 1979/80 food-aid programme. Under Article 1 thereof, the tendering procedure was to take place in Belgium in one lot and the product was to be mobilized on the Community market and loaded for departure from one of the Community ports. Article 1(3) provides: ‘The product referred to in paragraph 1 is to be delivered in bulk to the port of shipment in the vicinity of the vessel. The goods must be set down at the place nominated by the recipient country or its agent, the timing being settled by the tenderer and the recipient body's agent.’ According to Article 4, the contract was to be awarded to the tenderer offering the best terms. Article 5 provides: ‘If the tenderer is unable to deliver the goods in compliance with Article 1(3) on the date given in the notice of invitation to tender as a result of the late availability of the vessels to be used for sea transportation, the resulting costs shall be borne by the intervention agency.’ Under Article 6, ‘1. The tenderer shall give security in an amount of 6 ECU per tonne of goods. It shall be released: ... — in the case of the successful tenderer, when the operations concerned have been carried out within the prescribed time-limit and on submission of the original export licence duly granted and endorsed by the competent authorities of the Member State mentioned in the tender pursuant to Article 3(2), ...’. Article 7 further provides that: ‘The common wheat referred to in Article 1 must be of fair and sound merchantable quality and correspond at least to the standard quality for which the reference price is fixed.’ Finally, so far as concerns the present case, Article 8 makes the Belgian intervention agency responsible for the tendering operations.
16.

It is quite true that in this case the fact that the subsidiaries are wholly controlled by the parent company may suggest that the distribution of profits as dividends is certain, inasmuch as it depends in any event on the will of the parent company. That is not, however, a sufficient basis for the assertion that the parent company is legally entitled, still less required, to enter those profits in its balance sheet for the year (for example 1989) in which they were made by the subsidiaries as profits; that right can arise only in respect of the following year (1990 in the same example) so far as concerns the parent company. In that connection it should be borne in mind that, notwithstanding the ‘relationship between them’, the parent and the subsidiaries are and continue to be formally separate legal persons, and the accounts which they are required to draw up are equally separate. To maintain that profits made by subsidiaries in a given financial year may or must be regarded as the parent company's profits for that same year, even before they have been formally appropriated as dividends, would in a word be tantamount to stating that any profit made by subsidiaries automatically and simultaneously becomes the parent company's profit, which is not acceptable since they are legally distinct persons and their balance sheets are not consolidated.
4.

However, the Court had not as yet had occasion to address the question whether the Treaty precludes the levying of dock dues on goods imported into the French overseas départements from non-member countries with which the Community has no trade agreement. That gap has now been filled by the preliminary reference under consideration here, in which the national court essentially asks whether the levying of dock dues on imports from non-member countries is compatible — now that dock dues have been recognized as charges having equivalent effect to customs duties — with the adoption of a Common Customs Tariff under Articles 9 and 18 to 29 of the Treaty, and with the principles on which the common commercial policy is based under Article 113. Notwithstanding their imprecise wording, that is the thrust of the following questions which have been submitted by the Tribunal d'Instance, Paris XII, the court hearing the plaintiffs' claim for reimbursement of all amounts paid by way of dock dues in respect of various periods falling between 1 November 1988 and 30 November 1991: ‘Can the principle of non-discrimination, as laid down by the EEC Treaty, be interpreted as prohibiting a Member State from levying an internal charge, which has been held to have an effect equivalent to a customs duty, on goods from non-member countries not connected to the Community by a special agreement, even though goods imported by other Member States from the same non-member countries are not subject to that charge? If not, does the levying of such a charge by the Member State constitute disparate treatment liable to compromise equality between traders in the Member States and to give rise to distortions in or undermine the common market?’
17.

Mr and Mrs Hoever and Mr and Mrs Zachów are German nationals who have been resident in the Netherlands since the mid-1980s. Mr Hoever and Mr Zachów arc employed full-time in Germany; Mrs Hoever is employed for 10 hours per week in Germany, from which employment she took 18 months' child-care leave when her son was born; Mrs Zachow was at all material times not in employment. Mrs Hoever and Mrs Zachów applied for German child-care benefit in respect of their sons born in 1991 and 1987 respectively. In each case, the application was refused in the first instance. In Mrs Hoever's case, the ground was that in the case of a national of a Member State resident in a Member State other than Germany the benefit was payable only to employed persons and not to members of their family; in view of the insignificant number of her working hours, Mrs Hoever was not an employed person. In Mrs Zachow's case, the ground was that she was resident and habitually resident in the Netherlands. Appeals in both cases to the Sozialgericht (Social Court), Münster, were dismissed on the ground inter alia that the applicants did not fall within Article 73 of Regulation No 1408/71 since they were not ‘employed’. Both applicants appealed to the Landessozialgericht, Nordrhein-Westfalen, which referred the following questions to this Court: ‘1. Is child-care benefit within the meaning of Paragraph 1 et seq. of the Law on the grant of child-care benefit and child-care leave, in the version contained in the public notification of 25 July 1989(Bundesgesetzblatt I, p. 1550) and of the Law of 17 December 1990(Bundesgesetzblatt I, p. 2823) a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71? ( 9 ) 2. If so: (a) May the spouse of a person employed in the Federal Republic of Germany, whose family lives in another Member State, claim payment of child-care benefit on the basis of Article 73 of Regulation No 1408/71? (b) (in Case C-245/94 only) Does Paragraph 1(4) of the Law on child-care benefit constitute discrimination on grounds of sex contrary to Article 4(1) of Directive 79/7 in so far as it accords nationals of a Member State who are engaged in employment in the Federal Republic of Germany the right to claim child-care benefit thereunder only if their employment entails a significant number of working hours? 3. If not: (a) Is child-care benefit a social advantage within the meaning of Article 7(2) of Regulation No 1612/68? (b) If so, is Article 7(2) of Regulation No 1612/68 applicable if the worker residing in another Member State is a national of the State where he is employed? (c) If so, does Article 7(2) of Regulation No 1612/68 confer upon the worker's spouse entitlement to payment of child-care benefit if the family resides in a Member State other than the State of employment?’
37.

It may be noted that Advocate General Mayras came to a similar view to that which I propose in Denilanler v Conchet Frères, ( 17 ) a case concerning the application of the Convention to an interim order obtained ex parte. The Advocate General, considering whether Article 27(2) applied to proceedings in which such an order was obtained, stated: ‘It is however far from certain that the terms used in [Article 27(2)] can apply only to default proceedings as understood stricto sensu in certain national legal systems. I do not think it right to construe Article 27(2) as referring only to specific proceedings known to certain national legal systems. In my view such a construction would be too narrow and would fail to recognize the independent nature of the Convention, which is an instrument of international law, in relation to the multiplicity of proceedings under the national legal systems of the Contracting States. This is confirmed by the English text of Article 27(2) which, by using the expression “judgment... given in default of appearance”, is careful to avoid terminology calling to mind certain national proceedings and those alone. There can be no doubt that according to the ordinary meaning of the words any judgment given against a defendant without his having been heard is a judgment “in default of his appearance”. The English term refers simply to the absence of the defendant from the course of the proceedings for whatever reason.’ ( 18 )
39.

I could subscribe to that reasoning if it were indeed clear that the purpose of paragraph 24 of Resolution 820 (1993) was to deprive the guilty party of recourse to the aircraft which could be used to transport goods in breach of the embargo. It seems to me, however, that such a narrow construction of the resolution is not compelling. It is not possible to establish, on the basis of the text of the resolutions, that the requirement to impound means of transport was only intended to strengthen the trade embargo. There can of course be no doubt that the Security Council had the strengthening of the trade embargo in mind when it took its decision. That can be deduced from the fact that the second part of paragraph 24 adds that the means of transport mentioned ‘may be forfeit to the seizing State upon a determination that they have been in violation of Resolutions 713 (1991), 757 (1992), 787 (1992) or the present resolution’. However, it is by no means excluded that the Security Council intended to go further. It will be remembered that the Security Council also decided to freeze all funds belonging to or destined for authorities or undertakings in the Federal Republic of Yugoslavia (Serbia and Montenegro). ( 17 ) The decision to impound means of transport in which undertakings in that Republic have a majority or controlling interest can be construed as a further decision freezing assets abroad, even where there is no immediate risk of their being used to circumvent the trade embargo. As the defendants put it in their written observations, the object may be to deprive the Yugoslav undertaking in a case such as the present one of even the indirect benefit of the fact that a means of transport will continue to operate and continue to be maintained and insured.
4.

The directive contains the following provisions of significance for this case: ‘Article 1 1. This directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment. 2. For the purposes of this directive: “project” means: — the execution of construction works or of other installations or schemes, — other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources; ... Article 2 1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4. ... 3. Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this directive. In this event, the Member States shall: (a) consider whether another form of assessment would be appropriate and whether the information thus collected should be made available to the public; (b) make available to the public concerned the information relating to the exemption and the reasons for granting it; (c) inform the Commission, prior to granting consent, of the reasons justifying the exemption granted, and provide it with the information made available, where appropriate, to their own nationals. ... Article 3 The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors: — human beings, fauna and flora, — soil, water, air, climate and the landscape, — the inter-action between the factors mentioned in the first and second indents, — material assets and the cultural heritage. Article 4 1. Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10. 2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require. To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10. Article 6 ... 2. Member States shall ensure that: — any request for development consent and any information gathered pursuant to Article 5 are made available to the public, — the public concerned is given the opportunity to express an opinion before the project is initiated. ...’
27.

In the order for reference in the present case, delivered before the Court's ruling in Mohr, the national court arrived at a similar conclusion as a matter of German law: ‘... the identity of the intended recipient of the service is open to question. Whilst Paragraph 1(1 )(1) of the Umsatzsteuergesetz (Turnover Tax Law — UStG) (GDR and Federal Republic of Germany) does not expressly state that the service must be rendered to a specific recipient, that requirement is nevertheless apparent, first, from the nature of the matter and the character of turnover tax as a tax on consumption, and, second, from numerous other provisions of the UStG in which this is presumed to be self-evident (e. g. Paragraphs 3(1), 6(2), 7, 9(1) and 10(2) of the UStG (GDR and Federal Republic of Germany)). It is frequently the case, where subsidies from public funds are involved, that no such specific recipient is identifiable. Whilst it is true that, in so far as it is in the public interest to promote such conduct on the part of the taxable person, the public at large may be regarded as the recipient of the service, the referring court is of the view that the public at large cannot constitute a specific recipient of the kind which must exist in order to give rise to a transaction chargeable to turnover tax. Nor can the authority paying the subsidy be regarded as a recipient. The taxable person does not render that authority any specific service. He does not extensify his agricultural production for the benefit of the authority granting the subsidy ...’
30.

The Treaty, in particular the third paragraph of Article 189, imposes on Member States an obligation to achieve the result required by a directive no later than the final date fixed for its implementation. However, that obligation actually arises not from the final date for implementation but on the day on which the directive enters into force or takes effect as laid down in Article 191. Directive 91/156 took effect, by virtue of the second paragraph of Article 191 of the EEC Treaty, on the date on which it was notified to Belgium. From that date onwards and throughout the period for the implementation of the directive Belgium was under an obligation to bring its national provisions into line with the directive by 1 April 1993. In other words, it was under an obligation to ensure that there were no national rules contrary to the directive after that date. That obligation flowed from a legal instrument which had already taken effect at the moment of the adoption of the contested national Regulation and must clearly be taken into account by the Conseil d'État in assessing the validity of the Regulation. That is so notwithstanding the fact that performance of the obligation to implement the directive was not required until a later date; as I shall explain below (see paragraph 34), that may however be relevant in determining the scope of the remedy to be granted by the Conseil d'État.
61996C0037

Joined opinion of Mr Advocate General Tesauro delivered on 20 March 1997. - Sodiprem SARL and Others (C-37/96) and Roger Albert SA (C-38/96) v Direction générale des douanes. - Reference for a preliminary ruling: Tribunal d'instance de Paris - France. - Joined cases C-37/96 and C-38/96. - Paul Chevassus-Marche v Conseil régional de la Réunion. - Reference for a preliminary ruling: Tribunal administratif de Saint-Denis de La Réunion - France. - Case C-212/96. - Dock dues (octroi de mer) - Fiscal rules applicable to the French overseas departments - Decision 89/688/EEC - Charges having an effect equivalent to a customs duty - Internal taxation.



European Court reports 1998 Page I-00743
Opinion of Mr Advocate General Jacobs delivered on 26 March 1998. - Commission of the European Communities v Kingdom of Belgium. - Failure to fulfil obligations - Failure to transpose Directive 94/57/EC. - Case C-368/97.



European Court reports 1998 Page I-02967



Opinion of the Advocate-General

1 In these proceedings the Commission seeks a declaration, under Article 169 of the EC Treaty, that the Kingdom of Belgium has failed to fulfil its obligations under the Treaty by not adopting within the prescribed period, and/or by not communicating to the Commission, the measures necessary to implement Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations. (1)

2 Article 16 of the Directive provides that:

`1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive no later than 31 December 1995.

...

3. The Member States shall immediately communicate to the Commission the text of all the provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.'

3 The Kingdom of Belgium has not disputed its failure to implement the Directive and states in its defence that the necessary measures are in the course of being adopted.

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

Conclusion

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

(1) declare that, by failing to adopt within the prescribed period the provisions necessary to implement Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty;

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

(1) - OJ 1994 L 319, p. 20.