ddrg/super_eurlex huggingface dataset:
13.

This certainly applies to the provisions at issue in this case, which regulate the sale of products intended to correct a defect in a bodily function. Such provisions, which reserve to opticians the sale of instruments for correcting sight, are clearly designed to protect public health. In the first place, while it is true — as LPO has claimed — that ophthalmologists are responsible for prescribing and fitting contact lenses, the fact remains that the sale of such lenses cannot be regarded as an ordinary commercial activity. One reason is that the optician is the only person, apart from the ophthalmologist, who is in a position to give users the necessary information on the use of the lenses and on the products for their care; another is that, in the absence of a medical prescription — which is not required for persons over 16 years of age — it is essential for the appropriate checks to be made and for advice to be provided by someone with a minimum of knowledge on the subject. The measure in question is therefore objectively necessary to ensure the protection of public health. Furthermore, it does not appear possible to achieve such an objective unless the sale of the products in question is entrusted to qualified staff. I cannot endorse the plaintiff's view that it is sufficient for the products to be sold only on medical prescription and for those selling them to provide no technical or medical services. The very fact that a medical prescription is required for the products in question could be held to be a decisive reason for having a qualified person in attendance in shops supplying optical appliances, since it can be assumed that some knowledge of optics is needed to ‘read’ the prescription. I do not therefore think that there are any other less restrictive methods of securing the same result. Nor do I consider that the scope of the monopoly conferred on opticians by the French legislation is disproportionate in relation to the objectives pursued. That monopoly is confined to products for which it appears necessary to employ traders holding an appropriate professional qualification. It is only the sale of contact lenses and corrective lenses that is reserved to opticians, not the sale of other products, such as sunglasses or ski-goggles, which are unrelated to the correction of sight defects and whose use in any case presents no risk to health. In the light of those considerations, I feel justified in maintaining that the rules at issue in the present case fulfil the objective of protecting health and that their restrictive effects — which are in any case indirect and nondiscriminatory — do not exceed what is necessary to achieve the objective pursued, with the result that such rules should not fall within the scope of the prohibition laid down in Article 30.
5.

Following an increase in Mrs Milazzo's Italian pension as a result of indexation, ONPTS decided to recalculate the amount of her guaranteed income benefit. By a decision notified to her on 6 March 1984, Mrs Milazzo was informed that with effect from April 1984 her guaranteed income benefit would be reduced by an amount of BFR 4818 per month; it may be noted that that substantial reduction was due to an abnormally large increase in her Italian pension, itself apparently due to the effect of the Italian indexation provisions. The decision of ONPTS to reduce Mrs Milazzo's guaranteed income benefit was annulled in proceedings before the Tribunal du Travail, Liège, initiated by Mrs Milazzo and continued by the respondent after her death. The judgment of the Tribunal du Travail was in substance upheld by the Cour du Travail, Liège, in its judgment of 3 February 1989. In that judgment, the Cour du Travail held that ONPTS should pay and index-link the guaranteed income benefit in accordance with Article 46 of the regulation without taking into account adjustments to the Italian pension arising from changes in the cost of living. On that basis, it ordered ONPTS to pay the respondent arrears of guaranteed income benefit between 1 April 1984 and 26 August 1984, the date of Mrs Milazzo's death. ONP challenged the decision of the Cour du Travail before the Cour de Cassation which has referred the following question to the Court of Justice: ‘Must Articles 46 and 51 of Regulation (EEC) No 1408/71 be interpreted as meaning that they apply where an old-age benefit paid under the legislation of one Member State overlaps with a benefit supplementing an employed person's old-age benefit which guarantees an elderly person an income regardless of the length of the insurance periods and is paid under the legislation of another Member State, even if such application has the effect of conferring an advantage on a migrant worker in comparison with a non-migrant worker, although Article 3(1) of the said regulation provides that all nationals of Member States should be treated equally?’
12.

Article 13 of the Protocol cannot be considered in isolation. With regard to the income of officials from non-Community sources, Article 13 is supplemented by Article 14, the first paragraph of which provides as follows: ‘In the application of income tax, wealth tax ( 7 ) and death duties and in the application of conventions on the avoidance of double taxation concluded between Member States of the Communities, officials and other servants of the Communities who, solely by reason of the performance of their duties in the service of the Communities, establish their residence in the territory of a Member State other than their country of domicile for tax purposes at the time of entering the service of the Communities, shall be considered, both in the country of their actual residence and in the country of domicile for tax purposes, as having maintained their domicile in the latter country provided that it is a member of the Communities ...’. ( 8 )
3.

Although the Commission stated for the first time in the document instituting these proceedings that the failure to implement the directives before 31 December 1992 was liable to compromise the establishment of the internal market and could constitute a breach of Article 8A in conjunction with Article 5 of the Treaty, the Commission made it clear in its reply that it did not intend to rely on an additional ground to support its application, nor did it intend to put in a new complaint, but that it intended merely to emphasize that the implementation of the directives in question was becoming more urgent. Moreover, it is clear that because the written stage of the present proceedings was completed before 31 December 1992, the Commission would in any event not have been in a position to charge the Netherlands Government with failing to fulfil an obligation which, at that time, was not effective.
Opinion of Mr Advocate General Tesauro delivered on 23 February 1994. - Commission of the European Communities v Kingdom of Belgium. - Failure to fulfil obligations - Failure to transpose a directive. - Case C-260/93.



European Court reports 1994 Page I-01611



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. By application lodged at the Court Registry on 17 April 1993, the Commission of the European Communities seeks a declaration by the Court that, by failing to adopt within the prescribed periods the measures necessary to comply with Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture, (1) the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty.

2. In that connection, it is sufficient to point out that the Belgian Government does not dispute the infringement with which it is charged. It confines itself to justifying its delay in transposing the directive on the grounds of the federal reform of the State, as a consequence of which responsibility for the matters regulated by the directive is now divided between the central and regional authorities, which has made it necessary to adopt the measures required by the Community legislation at both federal and local level. The Court has consistently held that a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations and time-limits resulting from Community directives. (2)

3. Finally, the essence of the problem is not significantly altered by the partial fulfilment by Belgium of its obligations through the transmission, in the course of these proceedings, of the measures for compliance with the directive which have been adopted by two Regions.

4. I therefore propose that the Court should allow the application and order the defendant State to pay the costs.

(*) Original language: Italian.

(1) - OJ 1986 L 181, p. 6.

(2) - See, most recently, the judgment in Case C-303/92 Commission v Netherlands [1993] ECR I-4739.
5.

On 11 November 1980 the Council adopted, in addition to Directive 80/1095/EEC, Decision 80/1096/EEC introducing Community financial measures for the eradication of classical swine fever, ( 6 ) supplemented and amended by Decision 87/488/EEC of 22 September 1987, ( 7 ) the main objective of which was to establish an additional period in which the measures taken were to be carried out, in the same way as occurred with Directive 80/1095/EEC. By virtue of that decision the Member States were able to benefit from assistance from the European Agricultural Guidance and Guarantee Fund (‘the Fund’) for the expenses incurred under measures provided for in Directives 80/217/EEC and 80/1095/EEC. To that end, Article 5(1) and (la) — the latter introduced following amendments made in 1987 — provides that Member States are to forward to the Commission the plans for the eradication of classical swine fever, together with supplementary plans, drawn up in accordance with Articles 3 and 3 a of Directive 80/1095/EEC. It is for the Commission therefore to ascertain whether all the conditions for Community financial assistance have been met (Article 5(3)). To that end, Article 3(2) provides that: ‘The guidance section of the Fund shall reimburse the Member States under the eradication plan referred to in Article 5: (a) up to 50% of the cost incurred in respect of compensation to owners for the slaughter and destruction of the animals; (...)’. Article 3(2a), introduced by the aforementioned Decision 87/488/EEC, provides, moreover, that: ‘The Community shall reimburse the Member States under the supplementary measures ...: (a) up to 50% of the cost incurred in respect of compensation to owners for the slaughter and destruction of pigs in areas of the territory of the Member States where an outbreak of the disease has been recorded; (b) up to 50% of the cost incurred in respect of compensation to owners for the slaughter and destruction of pigs in connection with systematic serological screening campaigns carried out with a view to implementing the new plan referred to in [Article 5(1a)]; (...)’.
37.

I turn now very briefly to the other two grounds of appeal raised by the appellants. In their second ground of appeal the appellants claim that the Court of First Instance did not comply with the obligation to provide a statement of reasons laid down in Article 190 of the Treaty. By declaring that complainants under Regulation No 17 are entitled to a definitive decision by the Commission finding an infringement only when the subject-matter of the complaint comes within the exclusive purview of the Commission and, in accordance with the Court's case-law, denying exclusive competence to the Commission with regard to the application of the first sentence of Article 90(2) of the Treaty, the Court of First Instance failed to take into consideration the existence and scope of the second sentence of Article 90(2). It would seem, therefore, that the appellants are attributing exclusive competence to the Commission as regards the application of the second sentence of Article 90(2) from which their right to obtain a decision stems, in accordance with the conditions laid down by the Court of First Instance itself. Accordingly, the fact that the latter did not examine that question in depth is said to amount to a defect in the statement of reasons.
26.

In its judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard, ( 16 ) however, the Court reviewed its case-law in this area and set out its views in more detail. The Court first of all noted that ‘it is established by the case-law beginning with “Cassis de Dijon” (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR649) that, in the absence of harmonization of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods.’ ( 17 ) The Court then went on to state that, in contrast to what had previously been decided, ‘... the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.’ ( 18 ) With reference to this, the Court, in its reply to the question submitted, ruled that Article 30 of the EEC Treaty was to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss.
3.

Since the Commission was not informed of any transposition by the Member State, it initiated the procedure for failure to fulfil obligations by a letter of formal notice dated 14 October 1992. There was no reply to the letter. The Commission thereupon delivered a reasoned opinion on 11 May 1993. By a letter of 15 July 1993 from the Permanent Representation of Ireland to the European Communities, the Irish Government informed the Commission that a transposition procedure was in progress. Since the Commission was not informed of the completion of the procedure, it brought an action before the Court on 10 June 1994. The Irish Government observed in its defence that by Statutory Instrument No 289 of 1994, signed by the Irish Minister for Agriculture on 21 September 1994, part of the directive had been transposed, and that for the rest the measures needed for transposition of the directive were in preparation.
8.

Even though the competent Luxembourg minister generally supervises the activities of the postal and telecommunications undertaking and ensures, in doing so, that it observes the requirements of Community law in the matter, and even though it must be assumed that the Luxembourg State, by its representation on the undertaking's board of management, is careful to ensure that the undertaking's general business conditions and price lists comply therewith, the Grand Duchy of Luxembourg has not hereby, in my view, created the precise legal framework to ensure compliance with the Directive or the clear, precise and open legal situation which will put the private person in a position to know and enforce his rights, as required by the case-law of the Court before a directive may be regarded as having been correctly transposed. Even though the members of the board of management are nominated by the State, the assumption must nevertheless be that the members of the board in a private undertaking are exclusively, or at least primarily, required to safeguard the interests of the undertaking in the performance of their duties. In so far as rules are adopted according to Community law to safeguard the interests of those having dealings with the undertaking, it is particularly clear that the transposition of a directive cannot be left to the discretion of what is in principle a private undertaking, in spite of the fact that the State may have nominated the members of the board of management. The adoption of the provisions of the Directive in the general conditions for contracts and price lists for the services offered, which are issued by the private postal and telecommunications undertaking, cannot therefore be regarded as constituting a correct transposition of the Directive, since the Luxembourg State has not created the necessary legal basis for compliance with the Directive. Neither by law nor by administrative provisions on which the citizen may rely has a duty therefore been imposed on the private undertaking in the general conditions and price lists to comply with the requirements of the Directive.
25.

The intention to exercise that right is demonstrated by letter dated 21 January 1993. ( 19 ) In that letter, the Parliament refers expressly to clause 4 of the contract and makes no complaint concerning Heidemij: ‘... Consequently, in accordance with Article 4 of our contract with you of 27 July 1990, I hereby give you notice of termination of this contract as at 30 June 1993. On behalf of my colleagues in the Directorate-General for Administration I would like to express my appreciation and thanks for the services you have rendered to the Parliament in recent years. We do hope that you will respond to the new call for tender to be issued shortly.’
11.

Itinera, a company and the successor in title to the successful tenderer, intervening in the main proceedings in support of the defendant, argues that there is no uncertainty about the content of the Community provision. Furthermore, there is no conflict between that provision and the national implementing provision. Consequently, the request for a preliminary ruling should be regarded as inadmissible. In the event that the Court should nevertheless regard the request for a preliminary ruling as admissible, Itinera argues that the provisions which were in force at the time when the tender notice was published should apply to the procedure for the award of the tender. Both the public notice and the invitation to tender took place before 31 December 1992. All tenderers, including the plaintiff, submitted their tenders in the light of the conditions laid down therein. The principle of protection of legitimate expectations would be infringed if the contracting authority had been compelled to conclude a contract on conditions different from those proposed to the tenderers. Since, in addition, administrative measures should in principle comply with the rules which are in force when they are adopted, the Court should endeavour to declare the derogating provision applicable to all procedures for the award of contracts which were initiated before 31 December 1992.
Article 12(1) of Directive 89/336/EEC, in its original version, provided as follows:

‘By 1 July 1991, Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall inform the Commission thereof.

They shall apply these provisions as from 1 January 1992.’

Article 1(2) of Directive 92/31/EEC supplemented Article 12(1) with the following paragraph:

‘However, Member States shall for the period up to 31 December 1995, authorize the placing on the market and/or the putting into service of apparatus referred to in this Directive conforming to the national regulations in force in their territory on 30 June 1992.’

Article 2(1) of Directive 92/31/EEC of 28 April 1992 provides as follows:

‘Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive not later than three months after its adoption. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

Member States shall apply these provisions not later than six months after the adoption of this Directive.’
25.

Furthermore, this would mean, in effect, that the Canary Islands producers enjoyed a more favourable regime under Protocol No 2 in relation to the import of sugar and its re-export as ‘caramelos’ in 1989 than, for example, in 1992, when the Islands had been incorporated into the customs territory of the Community. In accordance with Article 2(2) of Regulation No 1911/91, ( 13 ) the application of the common agricultural policy is to be accompanied by ‘specific supply arrangements’ for certain products. The arrangements in respect of sugar were laid down by Council Regulation (EEC) No 1601/92 of 15 June 1992 concerning specific measures for the Canary Islands with regard to certain agricultural products. ( 14 ) In order to take account of the ‘exceptional geographical situation of the Canary Islands in relation to the sources of supply of products used as inputs for’ manufacturing, and ‘to prevent disruption of traditional trade flows’, Article 3(1) of this regulation provides that ‘Levies and/or customs duties shall not apply to direct imports into the Canary Islands from third countries of products covered by the specific supply arrangements’, including sugar. However, the specific supply arrangement is subject to two limitations: in the first place, only a given quantity of a particular product can benefit from the Article 3 exemption each year, ( 15 ) and, perhaps more significantly for the present case, the re-export in processed form of the products imported under these arrangements is prohibited, except for ‘traditional exports or shipments to the rest of the Community’. Neither of these restrictions would apply under the interpretation of Article 2 of Protocol No 2 proposed by the appellants in the main proceedings. Such a difference in treatment as a result of the incorporation of the Canary Islands into the Community's customs territory would, in my view, be completely anomalous.