ddrg/super_eurlex huggingface dataset:
Opinion of Mr Advocate General Lenz delivered on 14 December 1988. - Merkur Außenhandel GmbH & Co. Kg v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Monetary compensatory amounts - Conditions for repayment. - Case 233/87.



European Court reports 1989 Page 00569

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General Lenz delivered his Opinion on 14 December 1988 . (*) He concluded that the Court should rule as follows :

When a monetary compensatory amount is granted by the Federal Republic of Germany for a compensatory amount which should be granted in the United Kingdom, the German authorities are bound by the findings of the British customs in respect of the weight of the goods on arrival, both as regards the original findings entered on the control copy and by corrections thereto . However, these findings may be reviewed by the courts in accordance with national rules of procedure .

(*) Original language : German .
61987C0213

Opinion of Mr Advocate General Tesauro delivered on 13 December 1989. - Gemeente Amsterdam et Stichting Vrouwenvakschool voor Informatica Amsterdam (VIA) v Commission of the European Communities. - European Social Fund - Action for the annulment of a refusal to grant an application for financial assistance. - Case C-213/87.



European Court reports 1990 Page I-00221

Pub.RJ Page Pub somm
Opinion of Mr Advocate General Darmon delivered on 14 December 1988. - International Container et Transport (ICT) and BFI Électronique SA v Direction Générale des Douanes et Droits Indirects de Roissy. - Reference for a preliminary ruling: Tribunal d'instance d'Aulnay-sous-Bois - France. - Common Customs Tariff - Electronic components testers. - Case 19/88.



European Court reports 1989 Page 00577

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General Darmon delivered his Opinion on 14 December 1988 . (*) He proposed that the Court should rule that :

Electronic apparatus which fulfils functions of checking and monitoring electronic components by measuring electrical quantities does not fall under subheading 90.28 A II ( a ) but subheading 90.28 A II ( b ) provided that no other major function of the apparatus justifies its classification under another heading .

(*) Original language : French .
Opinion of Mr Advocate General Lenz delivered on 28 June 1989. - Chimica del Friuli SpA and others v Amministrazione delle finanze dello Stato. - References for a preliminary ruling: Tribunale civile e penale di Venezia - Italy. - Favourable tariff arrangements upon importation - End-use - Authorization. - Joined cases 248/88, 254 to 258/88, 309/88 and 316/88.



European Court reports 1989 Page 02837

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General Lenz delivered his Opinion on 28 June 1989 .* He proposed that the Court should rule as follows :

Article 7 of Commission Regulation No 1535/77 of 4 July 1977 determining the conditions under which certain goods are eligible upon importation for a favourable tariff arrangement by reason of their end-use must be interpreted as meaning that when goods are transferred the transferee must hold an authorization granted in accordance with Article 3 of that regulation, whether the transfer takes place between one Member State and another or within the same Member State .

* Original language : German .
2.

Under the relevant Community legislation, Mr Ballmann was granted a reference quantity corresponding to the milk production of about 40 cows; Mr Menkhaus, on the other hand, was granted a reference quantity equal to the milk production of about 20 cows, on the basis of the milk production obtained by him in 1983 on his own holding, where the facilities had become outdated. By contract of 15 June 1987, Mr Ballmann, who owns an agricultural holding with 60 cow stalls, 20 of which are located in a new shed, leased to Mr Menkhaus, likewise a farmer engaged in milk production, the 20 stalls in the new shed. Following signature of the lease, the competent Oberfinanzdirektion (Regional Finance Directorate) gave notice that Mr Menkhaus could no longer be regarded as a milk producer within the meaning of the applicable Community rules and that, as a result, the milk production obtained by him would be set against Mr Ballmann's reference quantity. The lease provides inter alia that the parties are to provide separately for the feeding, milking, insemination and veterinary treatment of their respective livestock. Apart from the general facilities of the cowshed, only the milking machinery is used by both parties. However, the milk obtained is stored in separate tanks and the amount obtained by each is measured by an electronic gauge. Relying on the provisions of the lease, Mr Ballmann instituted proceedings before the Finanzgericht (Finance Court) against the decision adopted by the Oberfinanzdirektion. His claim was dismissed on the grounds that the lessee could not use his own reference quantity on the lessor's holding. The Bundesfinanzhof (Federal Finance Court), before which Mr Ballmann brought an appeal, made the present reference to the Court, in which it asks essentially whether the terms ‘producer’ and ‘holding’ used in Article 12(c) and (d) respectively of Regulation No 857/84 are to be interpreted as meaning that a milk producer who has leased accommodation for his cows must set the milk produced against the lessor's reference quantity, the latter also being a milk producer, or against his own reference quantity, which was granted to him on the basis of the milk production of his own holding. It also asks whether the answer must take account of the terms of the lease, the circumstances of the case or both.
Opinion of Mr Advocate General Lenz delivered on 2 July 1991. - Commission of the European Communities v Grand Duchy of Luxembourg. - Failure of a Member State to fulfil its obligations - Containers of liquids for human consumption - Failure to transpose a directive and to communicate programmes. - Case C-252/89.



European Court reports 1991 Page I-03973

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General Lenz delivered his Opinion on 2 July 1991.(*) He proposed that the Court:

hold that the Commission' s assessment is well founded and declare that the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EEC Treaty by failing to introduce and communicate to the Commission, within the prescribed period, the programmes and the laws, regulations and administrative measures needed to comply with the obligations imposed on it by Directive 85/339/EEC on containers of liquids for human consumption. As the Commission also asks, the defendant should be ordered to pay the costs as it has been unsuccessful.

(*) Original language: German.
Opinion of Mr Advocate General Lenz delivered on 30 April 1991. - Impresa Donà Alfonso di Donà Alfonso & Figli v Consorzio per lo sviluppo industriale del comune di Monfalcone, Regione Friuli-Venezia Giulia, Impresa Luigi Tacchino SpA and Impresa Carlutti Costruttori SRL. - Reference for a preliminary ruling: Tribunale amministrativo regionale del Friuli-Venezia Giulia - Italy. - Public works contracts - Abnormally low tenders. - Case C-295/89.



European Court reports 1991 Page I-02967

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General Carl Otto Lenz delivered his Opinion on 30 April 1991. He proposed that the Court rule as follows:

"(1) Article 29(5) of Council Directive 71/305/EEC prohibits Member States from introducing provisions which require the automatic disqualification from the award of public works contracts of certain tenders determined according to a mathematical criterion, instead of obliging the awarding authority to apply the examination procedure laid down in the directive, giving the tenderer an opportunity to furnish explanations.

(2) When implementing Council Directive 71/305, Member States may not depart, to any material extent, from the provisions of Article 29(5) thereof.

(3) Article 29(5) of Council Directive 71/305 allows Member States to require that tenders be examined when those tenders appear to be abnormally low, and not only when they are obviously abnormally low."

( *) Original language: German.
Opinion of Mr Advocate General Mischo delivered on 7 March 1991. - Gio Buton and Vinicola Europea SpA v Amministrazione delle finanze dello Stato. - Reference for a preliminary ruling: Tribunale civile e penale di Trieste - Italy. - Ethyl alcohol of agricultural origin - Countervailing charge. - Case C-201/90.



European Court reports 1991 Page I-02453

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General Jean Mischo delivered his Opinion on 7 March 1991. (*) He proposed that the Court should rule as follows:

"1. Consideration of the first question has disclosed no factor of such a kind as to affect the validity of Commission Regulation (EEC) No 2541/84 of 4 September 1984 fixing a countervailing charge on imports into other Member States of ethyl alcohol of agricultural origin produced in France, as amended by Commission Regulation (EEC) No 644/85 of 12 March 1985.

2. Regulation (EEC) No 2541/84 must be interpreted as meaning that a countervailing charge has to be levied on alcohol processed into a finished product in a free zone without being subjected to a special customs procedure and which is intended to circulate within the Community."

(*) Original language: French.
5.

The wording of the questions referred to the Court suggests that the national court's doubts relate to the compatibility with Community law of the obligation to obtain authorization or type-approval under pain of a fine. The context of the request for a preliminary ruling, however, makes it possible to view the question in a different light. Thus it is not in fact the obligation to obtain authorization or type-approval that the national court regards as problematical, but rather the way in which that obligation combines with the position conferred on the RTT in the field of radiocommunications and private radiocommunications, which includes the operation of the telephone network and the sale of equipment for connection to the network. In its order for reference, the national court establishes that the RTT represents ‘a kind of monopoly’. The national court expresses doubts as to the compatibility of the RTT's position with the fundamental rules of the Treaty on the free movement of goods and with the provisions on competition. In order to answer the question referred to the Court it will therefore be necessary to interpret the relevant Treaty provisions against the background of the position conferred on the RTT.
11.

Article 227(2) was considered in Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR1787, where the plaintiff claimed that the tax provisions of the Treaty, and in particular the rule on nondiscrimination laid down in Article 95, applied to goods imported into a Member State from a French overseas department. The Court was asked to clarify the effect of the second subparagraph of Article 227(2) in view of the fact that the Council had not, at that time, made use of its power to determine the conditions under which the provisions of the Treaty, other than those mentioned in the first subparagraph, were to apply in the French overseas departments. The Court explained (paragraphs 10 to 11 of the judgment) that: ‘in order to make due allowance for the special geographic, economic and social situation of those departments, Article 227(2) made provision for the Treaty to be applied by stages, and in addition it made available the widest powers for the adoption of special provisions commensurate to the specific requirements of those parts of the French territories. For that purpose, Article 227 precisely stated certain chapters and articles which were to apply as soon as the Treaty entered into force, while at the same time reserving a period of two years within which the Council could determine special conditions under which other groups of provisions were to apply. Therefore after the expiry of that period, the provisions of the Treaty and of secondary ¡aw must apply automatically to the French overseas departments inasmuch as they are an integral part of the French Republic, it being understood, however, that it always remains possible subsequently to adopt specific measures in order to meet the needs of those territories.’ The Court concluded that, although the tax provisions of the Treaty were not mentioned in the first subparagraph of Article 227(2), those provisions, and particularly Article 95, were applicable on the expiry of the two-year period laid down in the second subparagraph to goods coming from the French overseas departments.
1.

The proceedings in this case have followed a more elaborate path than usual. After the normal exchange of pleadings, the parties were heard on 27 November 1990 and I delivered my Opinion on 10 January 1991. By order of 2 May 1991, the Court ordered the reopening of the oral procedure, and after a further hearing I delivered a further Opinion on 19 September 1991, in which I considered such new matters as had been advanced by the parties, but reached the same conclusion as in my first Opinion. Unfortunately, however, the Court was unable to reach a decision in its then composition, and consequently by order of 8 October 1991 it reopened the oral procedure once again. A new hearing was initially fixed for 26 November 1991 but was subsequently postponed to 28 January 1992.
7.

The circumstances of the present case illustrate the need to avoid too narrow a view of the Court's powers under Article 177. Although the decision does not purport to have retroactive effect, nevertheless doubts could arise as to its temporal effects. There seems no reason of principle why dock dues, previously unlawful, should be treated as lawful only with effect from a particular date. Moreover, it might seem paradoxical to regard dock dues as lawful only after the adoption of a decision designed to ensure their reform, as would be the case if the decision were regarded as not being retroactive. But there is a point of greater significance as showing the relevance of the validity of the decision to the issues before the national court: the very adoption of the decision must, on the view I take, entail, if the decision is valid, that dock dues could never be regarded as customs duties or charges having equivalent effect. Accordingly the validity of the decision is inseparable from the issue before the national court.
14.

Both arguments were rejected by the Court. Owing to the importance of this judgment for the present case I cite below the relevant paragraphs 11 to 15 in extenso: ‘As regards determination of the normal value on the basis of the prices of the related sales companies, it should be noted that, according to the documents before the Court, Matsushita has financial control of those companies which market its products in Japan and entrusts to them tasks which are normally the responsibility of an internal sales department of the manufacturing organization. As the Court has already held, in particular in its judgment in Case 250/85 Brother v Council [1988] ECR5683, at paragraph 16, the division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which organizes in that way activities that, in other cases, arc carried on by what is in legal terms as well a single entity. Matsushita's arguments whereby it seeks to show that Matsushita and its related sales companies should not be treated as forming a single economic entity cannot be accepted. The assessment which led the Institutions to find in this case that there was a single economic entity cannot be altered by the fact that a number of sales functions could have been carried out by the manufacturer itself. The Institutions are entitled to find that the manufacturer, together with one or more distribution companies which it controls, forms an economic entity even though it performs certain sales functions itself. Furthermore, it is clear from the documents before the Court that those functions, which were performed in this case principally by MEI's office equipment division (OED), are merely complementary to those performed by the related sales companies, since no sale to independent customers was made by MEI itself. It follows from the foregoing that all those companies' expenses — and likewise MEI's — incurred in marketing PPCs on the domestic market, which would obviously be included in the selling price if the marketing was carried out by an internal sales department of the manufacturer, must be included in the normal value.’ ( 10 )
2.

The Community rules to which the case relates are set out in detail in the Report for the Hearing and I shall confine myself here to highlighting the aspects which are more directly relevant for our purposes. In order to support production within the Community, Council Regulation (EEC) No 1431/82 of 18 May 1982 laying down special measures for peas and field beans ( 2 ) established a system of aid for the legumes in question which are harvested in the Community and used to manufacture products for use as human foodstuff or animal feed. The aid is not paid direct to producers but to the final users; however, the granting of aid is made conditional on guarantees that the producer has received not less than the minimum price for the quantities for which aid is sought (Article 3(3)). Article 2a of the same regulation, as amended by Regulation (EEC) No 1485/85, ( 3 ) introduced monthly increases in addition to the minimum price to be paid to the producer. The terms on which aid is granted and the control procedures are governed by Council Regulation (EEC) No 2036/82 of 19 July 1982 adopting general rules concerning special measures for peas and field beans. ( 4 ) Article 4(1) of hat regulation requires the first buyer to lodge the contract made with the producer and a declaration certifying the quantity delivered by the latter (declaration of delivery) with the agency appointed by the Member State. The agency in question, after verifying the content of the contract and the declaration, delivers to the first buyer the ‘certificate of purchase at the minimum price’, that is a certificate confirming that the producer has obtained at least the minimum price for the quantity he has delivered, adjusted as appropriate by monthly increments (Article 4(2)). The aid is thus granted to each user, provided that he has lodged an application and the certificate of purchase at the minimum price with the agency appointed by the Member State and on condition that the quantity specified in the certificate has actually been used, after being placed under supervision, in the same undertaking (Article 5(1)). The rules for applying the aid scheme in question were adopted by the Commission in the said Regulation No 3540/85. Article 6(5) of that regulation, on whose interpretation the Court has been asked to rule, states that ‘should Member States discover that they have issued certificates of purchase at the minimum price for more than the actual quantities involved, they shall recover the certificates for the excess quantities, or, if the certificates have been passed on, they shall require the first buyer to pay an amount equal to the highest aid applicable on the date the certificate was issued, multiplied by the excess quantity.’
15.

By application lodged at the Court Registry on 18 March 1991, Borelli submitted the following ‘application’: ‘Application brought under Article 173 of the Treaty ... and, in the alternative, application for damages for damage for noncontractual liability pursuant to Articles 178 and 215 of the Treaty ... against — the Commission ... — [and] the region of Liguria of the Italian State for the annulment of measure No 69915 of the Commission of the European Communities of 21 December 1990, received by the applicant on 10 January 1991, ... noting that the aid from the EAGGF, Guidance Section, for 1990, under Regulation (EEC) No 355/77, referred to in project No 90.41. IT.153.0, could not be granted, since the approval of the State on whose territory it was proposed to implement it had been revoked; and also for the annulment of all the procedural acts which led to the adoption of that measure, and, consequently, for a declaration that the applicant is entitled to the grant of the aid specified above or, in the alternative, for an order that the Commission of the European Communities pay damages for contractual ( 18 ) liability, subject to any recourse against the region of Liguria of the Italian State, and/or, on the same basis, for an order that the region of Liguria pay a share of the damages and in any event for an order that the institutions mentioned pay the costs.’
12.

A point raised by the Commission seems to me to be critical here. It pointed out that the purpose of Article 7(1) is to enable the compensation payable to the wine cooperatives to be determined as simply and swiftly as possible; however, Member States are free to opt for the Article 7(2) procedure, whereby the loss suffered in each individual case must be precisely determined. This is, I believe, a correct and convincing interpretation. Were it to be permissible, under the Article 7(1) procedure, to prove that the amount of the loss actually suffered was not the same as the amount of the flat-rate compensation (the amount deducted from the premium and allocated to the wine cooperative), it is probable, especially given the difficulties attendant on making out such a case, that a large number of long-drawn-out legal disputes would ensue and the abovementioned objective would not be attained. In that connection, it must be borne in mind that paragraph 1 does not contain a rule corresponding to the rule in the second sentence of Article 7(2) limiting the compensation payable: if the amount payable to the cooperative exceeds the loss suffered, this is something the wine-grower concerned must simply accept.
3.

Directive 85/203 was transposed into Belgian law by the Royal Decree of 1 July 1986. ( 2 ) Article 11 of Directive 85/203, which was not reproduced in the Royal Decree either expressly or in substance, provides for consultation with other Member States in which the Commission may also participate. It makes such provision in Article 11(1), in cases where a Member State intends to fix more stringent values in areas close to a border, and in Article 11(2), in cases where there is a risk that values may be exceeded following pollution which originates, or may originate, in another Member State.