ddrg/super_eurlex huggingface dataset:
7.

In accordance with that recommendation national insurers' bureaux were set up in each country grouping together insurance undertakings authorized in the country concerned to insure motor vehicles against civil liability. Insurance companies were authorized to issue to their clients, on behalf of their national bureau, an international certificate of insurance known as a green card. The green card served as proof that the car in question was properly insured in respect of liability towards third parties. That system doubtless facilitated international road traffic considerably because it simplified the checks that needed to be carried out by border officials in order to prevent the admission of uninsured vehicles. It did not, however, remove the need for such checks altogether because it was still necessary to ascertain in each case whether a vehicle was covered by a green card. In 1972 the Council decided that such controls should be eliminated since they impeded the free movement of vehicles and persons within the Community and thus affected the functioning of the common market (see the first three recitals in the preamble to Directive 72/166). Accordingly, Article 2(1) of Directive 72/166 provides: ‘Member States shall refrain from making checks on insurance against civil liability in respect of vehicles normally based in the territory of another Member State. Likewise, Member States shall refrain from making such insurance checks on vehicles normally based in the territory of a third country entering their territory from the territory of another Member State. Member States may, however carry out random checks’. But that type of control could only be eliminated if it were possible for border officials to assume that any vehicle ostensibly registered in a Member State was adequately covered by insurance. To that end, Article 3 of Directive 72/166 provides as follows: ‘1. Each Member shall, subject to Article 4, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance. The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of these measures. 2. Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers: — according to the law in force in other Member States, any loss or injury which is caused in the territory of those States; ...’
15.

Let us first look at the significance of the expression ‘social security’ which is decisive for the scope of the prohibition of discrimination laid down in Article 41(1) of the Agreement. At the hearing the representative of the French Government maintained that unemployment allowances (and thus also, as a special form of these, the allocations d'attente) are not designated by that expression. In support of that submission two reasons were given: firstly, the fact that paragraph 2 of Article 41, which deals with the aggregation of insurance or employment periods in various branches of social security, does not provide for such aggregation in the case of the right to unemployment allowances; secondly, the fact that there is no unemployment insurance in Morocco. It is true that, as regards Community migrant workers, unemployment allowances clearly fall within the broad concept of ‘social security’, as may be seen from Article 4 of Regulation No 1408/71. However the two factors indicated by the French Government do lead one to wonder whether the concept of ‘social security’ in Article 41 of the Agreement has the same broad scope. Firstly, Article 41(2) provides for an aggregation regime in respect of all the branches of social security for which Regulation No 1408/71 also provides such a regime, to the exclusion of the branch of unemployment. This fact may be interpreted in two ways. Either it means that as regards unemployment allowances Moroccan workers are in fact entitled in principle to non-discriminatory treatment but that they do not come into consideration for the purposes of the aggregation of insurance periods. Or it means that unemployment allowances are absolutely excluded from the sphere of application of Article 41. This latter conclusion is further supported by the fact that paragraph 4 of Article 41 lays down a specific rule as regards the free transfer of sums of money to Morocco with respect to all the traditional branches of social security, but excepting the branch of unemployment. Assuming that there is in fact no unemployment insurance in Morocco (second argument of the French Government) then this fact points to the same conclusion, having regard also to the fact that Article 41(5) provides that Morocco is to accord treatment similar to that specified in paragraph 1 (namely the prohibition of discrimination) and in paragraphs 3 and 4. This concern to achieve reciprocity in the application of provisions, coupled with the absence of specific rules concerning unemployment allowances, may amount to an indication that it was not intended to bring within the scope of application of Article 41 unemployment allowances which do exist in the Member States but not in Morocco. There is therefore justification for some doubt but I do not consider it necessary to decide this question. It will be seen later on that, even assuming that Article 41 also refers to unemployment allowances, the prohibition of discrimination laid down in Article 41(1) does not confer upon a person such as Kziber the right to claim the allocation d'attente which is in question in the main proceedings.
61990C0168

Opinion of Mr Advocate General Tesauro delivered on 23 April 1991. - Commission of the European Communities v Grand Duchy of Luxembourg. - Failure to implement a directive - Mutual recognition of diplomas and coordination in the field of pharmacy. - Case C-168/90.



European Court reports 1991 Page I-02539

Pub.RJ Page Pub somm
Opinion of Mr Advocate General Mischo delivered on 9 July 1991. - Commission of the European Communities v Italian Republic. - Failure to comply with a directive - Labelling and advertising of foodstuffs. - Case C-32/90.



European Court reports 1991 Page I-04189

Pub.RJ Page Pub somm



Opinion of the Advocate-General

++++

Mr Advocate General Mischo delivered his Opinion on 9 July 1991. (*) He submitted that the Court should:

(1) Declare that, by requiring manufacturers of extruded pasta products to state on the label the date of manufacture and the place of origin or provenance of the product, the Italian Republic has failed to fulfil its obligations under points (4) and (7) of Article 3(1) of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (Official Journal 1979 L 33, p. 1);

(2) Order the Italian Republic to pay the costs.

(*) Original language: French.
27.

In its reply, the Commission refers to paragraph 124 of Publication 60, which states: ‘In practice, several misconceptions have arisen about the definition and function of dose limits. In the first place, the dose limit is widely, but erroneously, regarded as a line of demarcation between “safe” and “dangerous”. Secondly, it is also widely, and also erroneously, seen as the most simple and effective way of keeping exposures low and forcing improvements. Thirdly, it is commonly seen as the sole measure of the stringency of a system of protection. These misconceptions are, to some extent, strengthened by the incorporation of dose limits into regulatory instruments. Causing a dose limit to be exceeded then becomes an infraction of the rules and sometimes a statutory offence. Against this background, it is not surprising that managements, regulatory agencies and governments all improperly set out to apply dose limits whenever possible, even when the sources are partly, or even totally, beyond their control, and when the optimisation of protection is the more appropriate course of action.’ This passage does not mean that the application of dose limits can never be an effective way of increasing protection, but simply that recourse to the principle of optimisation (see paragraph 21 above) may sometimes be more appropriate, a point not contested by the Belgian Government. In citing this passage, the Commission appears to be implying that Belgium has ignored or misapplied that principle, but it has not in my view succeeded in establishing that the imposition by Belgium of stricter dose limits for apprentices and students than those laid down in Article 10(2) of the directive is inappropriate on grounds of radiological protection.
5.

This argument, which was put forward by Mrs V. in her pleadings before the Court of First Instance, and which was indirectly rejected by the finding that the committee's work was not vitiated by any defect, is unfounded. It may be seen from Article 9(2) of Annex II to the Staff Regulations that ‘the Invalidity Committee's conclusions shall be communicated to the appointing authority and to the official concerned’. The Invalidity Committee therefore followed the procedure laid down in the Staff Regulations. It merely communicated the conclusions of the report it had drawn up. It may be seen moreover from the documents in the case that the committee's report was sent to the doctor appointed by Mrs V., as shown also by the Parliament's reply to Mrs V.'s complaint, included as an annex to the application in the case before the Court of First Instance. That is not contested by Mrs V. Mrs V. has not sought to contest the medical assessment on which the conclusions of the Invalidity Committee were based. Accordingly Mrs V. cannot claim that the Invalidity Committee's decision is invalid because it contains no statement of reasons. The judgment in the Jänsch case related to the question of the scope of a review by the Court of the report of a medical committee in a case concerning the recognition of an occupational disease and in this connection sets out the requirements which may be made as to the contents of the report. The judgment is not therefore relevant to the present case.
16.

It appears to me that the question of the degree of acidity of the stolen lampante oil is a matter for the national court to determine in the light of the available evidence, bearing in mind that, in the absence of cogent evidence, the evidential risk should not lie with the Community. The reason for this lies, to my mind, in the Community's interest in protecting its finances against fraud and, more specifically, theft. It seems to me that, in the absence of evidence, the outcome which is most favourable to the Community should be adopted, a view which is borne out by that which the Court has consistently held in relation to the financing in the agricultural sector of payments which the Member States have made unlawfully, that is to say, payments which have not been made in conformity with the Community rules on the financing of expenditure. According to that case-law, ( 15 ) such payments must be borne by the Member States in so far as, even if it is impossible to prove with certainty the extent to which a national measure incompatible with Community law has resulted in an (unlawful) increase in expenditure, the Community authority is bound to refuse to finance all the expenditure in question. ( 16 ) It follows that in case of doubt the burden of proof should be discharged by the person seeking funding for the expenditure, which, in any event, is consistent with the general principle of the law of evidence that the evidential risk is to be borne by the person who cannot fulfil his obligation to prove with certainty the facts (in this case the degree of acidity of the stolen oil) on which the amount of the funding depends. This means that if there is probative evidence from which the national court can determine the degree of acidity (the actual figure or an average) of the stolen lot of oil, it must have regard to that degree of acidity. In that connection, the national court may base itself on the stock records of the storage agency or other probative evidence, such as the fact, as mentioned by the arbitration board, that during the marketing year in which the stolen oil was bought in the storage agency did not buy in any 1o lampante oil, which means that oil of that type could not have been stolen. In the event, however, that the available information does not enable the acidity of the stolen oil to be determined with certainty, I consider (in common with the arbitration board) that, for the reasons which I have given above, the value should be determined by reference to the oil with the lowest acidity stored in the warehouse where the theft took place during the marketing year in which the stolen oil was bought in, as this is the most favourable outcome for the Community.
declare that, by failing to reply within the period allowed to the questions asked in the telexes of 7 December 1988 and 23 February 1989, it has failed to fulfil its obligations under the first paragraph of Article 5 of the EEC Treaty;

and order the defendant State to pay the costs.
32.

Furthermore, the physical state of the goods should not affect the Court's reasoning. Certainly, the vehicle is used. However, the Court has had to consider the concept of ‘new’ goods and of ‘used’ goods on several occasions. In Schloh v Auto Contrôle Technique, ( 22 ) Advocate General Mancini took the view that ‘the definition of “new” and “used” is not the same as the dictionary definition (...)’. Likewise, Advocate General Rozès stated in Schul v Inspecteur der Invoerrechten en Accijnzen above: ‘Even the definition of secondhand goods is not simple. In a general way it may be said that secondhand goods are goods which may, if necessary after being reconditioned, be reused in the place of new goods serving the same purpose. (...) All such goods have the characteristic that once they have reached the ultimate consumer at the end of a series of trade transactions they may, after some use, be reintroduced into trade or use. No matter to what category they belong they may have, moreover, the characteristic, in contrast to new goods, of being able to be transferred without the intervention of a trade.’ ( 23 ) That definition takes into account perfectly the fiscal situation of the secondhand goods when they reach the final consumer. The concept of consumption is undoubtedly more relevant to the definition of secondhand goods than the used condition of the goods, VAT being a tax intended to be imposed definitively on goods, after a cycle of taxation and deductions, when they reach the stage of final consumption, that is to say, the stage at which they pass to a nontaxable person. ( 24 ) The Commission's representative rightly stated, in his oral observations, for the purposes of Article 32 secondhand goods are ones in respect of which the VAT chain of seller and purchaser has been interrupted by the intervention of a final consumer.
5.

I shall say forthwith that, having regard to the matters before the Court, the objection raised by the Greek Government is excessively formalistic. As the Court has consistently held, the subject-matter of an application under Article 169 of the Treaty is limited to that defined during the pre-litigation procedure and therefore the Commission's reasoned opinion and the application must be based on the same grounds and pleas. However, the Court has also held that practices challenged in reasoned opinions addressed to the Member State concerned, and continued subsequently, or practices which occurred after such opinions had been delivered but were of the same kind as those to which the opinions referred and constituted the same conduct fall within the scope of proceedings under Article 169 of the Treaty ( 1 ) Furthermore, in its judgment in Case 45/64 ( 2 ) the Court rejected an objection of inadmissibility raised by the Italian Government to the effect that the application concerned a different law enacted subsequently to the law which had been discussed in the pre-litigation procedure. The Court held that in both the administrative stage of the proceedings and in that before the Court the Commission had criticized more the actual application of the system at issue (a system of repayments on exports) rather than the legislative measures capable of constituting the legal basis of the system. The Court added that the purpose of the reasoned opinion was, first, to establish that the government in question had failed to fulfil an obligation under the Treaty and, secondly, to warn the defendant not to continue such alleged infringement of Community law beyond the date indicated (either by a measure continuing the existing legislation or by similar future legislation). By the same token, the Court has recently held that where, after an action for failure to fulfil obligations has been brought, the national legislation alleged to be inconsistent with the relevant Member State's obligations under Community law is replaced by other legislation identical in content, the Commission had not altered the subject-matter of the dispute by imputing, in the course of the proceedings, its claims concerning the previous legislation to the legislation which took its place. ( 3 )
4.

Having said that, I can only emphasize that the national court's questions are based — quite plainly — on the assumption that Article 37(1) of the Treaty and Article 208(1) of the Act of Accession have direct effect during the transitional period. In this regard, it must be pointed out that, as the Court has consistently held, a Community provision has direct effect only if it is sufficiently precise and unconditional. However, as has already been mentioned, the provisions in question only impose an obligation to achieve a certain result and leave it to the Member States to choose the means and methods of achieving it within the time-limits specified. Moreover, on the very subject of Article 37(1) of the Treaty, the Court has held that ‘the fact that at the end of the transitional period no discrimination regarding the conditions under which goods are procured and marketed must exist between nationals of Member States constitutes an obligation with a very precise objective subject to a clause postponing its operation’ ( 3 ) and that hence it is only on the expiry of the transitional period that ‘the duty in question is no longer subject to any condition’ and ‘its effects [can no longer] be subject to the adoption of any measure either by the Community or the Member States’. ( 4 ) As is clear from those rulings, whilst it is true that on the expiry of the transitional period the provision in question is such as to confer on individuals rights which the national courts must protect (even where the Member States have not yet fulfilled the obligation to achieve the specific result imposed upon them), it is equally true that until the transitional period expires the provision in question, and the corresponding article of the Act of Accession, is not unconditional and hence is devoid of direct effect. It follows that, until the end of the transitional period, which expires in this case on 31 December 1992, the provisions in question cannot be relied upon by individuals before the national courts.
5.

It submits first of all that it is clear from the operative part of the judgment in Case 203/87 that that judgment limited its effects to the application of the VAT exemption during the period from 1 January 1984 to 31 December 1988. The application of the exemption after the period taken into consideration by the Court in its judgment in Case 203/87 cannot therefore be regarded as conduct constituting a breach of the obligation to comply with that judgment as laid down in Article 171. That argument must certainly be rejected. The operative part of the judgment must be construed with reference to the grounds which form its essential support. Paragraph 10 of the judgment in Case 203/87 does not attach any temporal limitation to the finding of a breach of obligations since it simply states that Italy infringed Article 2 of the Directive by prolonging the exemption, without the Council's authorization, beyond the date prescribed by the Council when it temporarily authorized the derogation. Italy does not argue that there was any break between the period considered in Case 203/87 and the period which followed. Far from being exhausted, the effects of the judgment in Case 203/87 necessarily cover Italy's subsequent conduct which amounts to a continued breach of the same obligation. Moreover, that legal view corresponds to the view taken by the Court in its judgment of 8 May 1991 in Case 266/89 Commission v Italy. ( 3 )
4.

The national court was uncertain as to the compatibility of the applicable national provisions with Community law and therefore referred the following questions to the Court for a preliminary ruling: ‘Arc Articles 30 to 37 and 86 of the Treaty establishing the European Economic community, together with the European Commission directive of 16 May 1988 on competition in the markets in telecommunications terminal equipment, to be interpreted as prohibiting, in the field of radiocommunications, legal provisions such as the Law of 30 July 1979 and the Royal Decree of 15 October 1979 which impose penalties of imprisonment and/or fines, on persons who have: (1) possessed, within the Kingdom of Belgium or on board a vessel, boat, aircraft or any other structure governed by Belgian law, a radio transmitter or receiver or set up or operated in such place a radio station or network without having obtained the written, personal and revocable authorization of the minister or state secretary responsible for telegraphs and telephones, or; (2) offered for sale or hire a radio transmitter or receiver no model of which has been granted type-approval by the Régie des Télégraphes et des Téléphones as complying with the technical requirements laid down by the minister responsible, despite the possible existence of an official certification obtained under a procedure established by another Member State of the European Community?’
12.

It is of course for the national court to decide whether, prior to the date upon which the directive was to come into effect, Netherlands law permitted the applicant's undertaking to be under the sole management of the applicant. If that was precluded by the applicable national provisions, so that neither the undertaking nor the applicant himself was lawfully engaging in the occupation of road haulage operator, it is clear that no rights subsisted at the time of adoption of the directive which could be preserved by Article 5(1) and relied upon by the applicant. The applicant would have enjoyed no such right, given that he was solely responsible for the management of the undertaking without holding the appropriate certificate of competence; and similarly the undertaking could not rely upon any such right, given that it was under the sole management of the applicant. For the purposes of the following discussion, therefore, I shall proceed upon the assumption that, both before 1 January 1978 and before 1 January 1975, either the applicant or the undertaking enjoyed a right under national law to carry on the existing business of the undertaking, and that there were accordingly rights under national law which could be preserved by Article 5(1). If any such rights did exist, it appears that they were dependent on the fact that Mr van Esbroek held the appropriate certificate of professional competence and was a partner in the undertaking managed by the applicant.