ddrg/super_eurlex huggingface dataset:
12.

In the light of the case-law which I have referred to above I consider that before an answer is given to the preliminary question and in order to provide the national court with all the elements which it requires in order to interpret the relevant decision and resolve the dispute, it must be ascertained, as the Commission pointed out in its observations, whether it follows from the precise meaning of the relevant provision of the Sixth Directive, that a case such as the applicant's, is included amongst the bodies entitled to exemption from tax in respect of its services. It is apparent from the formulation of Article 13, viewed as a whole, that certain of the exemptions which it provides for expressly refer to the provision of services and goods by ‘bodies’. Thus, for example, in subparagraph (b) of the relevant exemption, mention is made of services supplied ‘... by bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognized establishments of a similar nature’. Likewise, subparagraph (i) of the exemption mentions ‘bodies governed by public law ... or by other organizations defined by the Member State concerned as having similar objects’. The exemptions under subparagraphs (1) and (m) refer to ‘non-profit-making organizations’, and the exemption under subparagraph (a) concerns services supplied by ‘cultural bodies recognized by the Member State concerned’. Moreover, the exemptions under subparagraphs (g) and (h) concern ‘bodies governed by public law or ... other organizations recognized as charitable’. On the other hand, in other cases of exemption, that expression is not used. That applies inter alia, to exemptions under subparagraph (c) which concerns services provided in the exercise of the medical and paramedical professions, under subparagraph (e) which concerns services supplied by dental technicians in their professional capacity and under subparagraph (i) which concerns tuition given privately by teachers. In those cases it is evident that the services and goods are supplied by natural persons.
12.

It may be seen from the documents before the Court that in its initial letter of 17 January 1991 to the Italian Government the Commission stated that in its view the Italian Republic had failed to comply with its obligations under Directive 71/305 owing to the fact that the provincial administration of Ascoli Piceno had concluded a private contract for the construction of the eleventh and twelfth supplementary projects without publishing a notice of invitation to tender in the Official Journal of the European Communities, and that the Commission asked to receive the Italian Government's observations on the matter within a given period. As the Italian Government did not answer the initial letter within the period prescribed, the Commission reiterated its views in a reasoned opinion. In that connection the Commission mentioned in both communications that it was not thought that the procedure could be regarded as justified by reasons of extreme urgency under subparagraph (d) of the first paragraph of Article 9. In the Italian Government's combined reply to the Commission's initial letter and to the reasoned opinion, the Italian Republic stated that it agreed with the Commission that subparagraph (d) of the first paragraph of Article 9 was inapplicable in this case but that instead the government regarded the project as being covered by subparagraph (b) of that paragraph. During the administrative procedure the Commission had mentioned possible reliance on subparagraph (d) of the provision in question as a ground for deviating from the procedures prescribed in Directive 71/305 because the government did not answer the initial letter at the right time, so that the Commission knew only after receiving the Italian Government's reply to the reasoned opinion that the derogation on which the government was relying was subparagraph (b) of the paragraph in question and not subparagraph (d) as the Commission had assumed. Thus the Commission was able to see only after the reply to the reasoned opinion exactly what provisions of the directive the government was relying on and so could only then concentrate its arguments on the question of the application of subparagraph (b) of the first paragraph of Article 9. The Italian Government failure to reply to the Commission's initial letter and thus to state from the outset the provisions on which it was relying ought not to place the government in a better position than if it had replied at the right time. That part of the government's objection of inadmissibility cannot therefore be upheld.
3.

Having dealt with the Agreement, I would point out that according to Article 2(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community: ( 2 )‘This regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.’ In defining the matters covered by that regulation, Article 4 first lists the branches of social security to which it is to apply, including for our purposes old-age benefits (at paragraph (1)(c)), and goes on to add in paragraph (2) that it is to ‘apply to all general and special social security schemes, whether contributory or non-contributory, and to schemes concerning the liability of an employer (...) in respect of the benefits referred to in paragraph 1’. In accordance with Article 4(4), the regulation does not apply inter alia to social and medical assistance. As a result of the entry into force of Council Regulation (EEC) No 1247/92 of 30 April 1992 ( 3 ) amending Regulation No 1408/71, special non-contributory benefits are expressly provided for by that regulation and are therefore included in social security, provided that certain conditions are met. Regulation No 1247/92 adds paragraph 2a to Article 4(2) of Regulation No 1408/71, extending the regulation ‘to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended: (a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraphs 1(a) to (h), or (b) solely as specific protection for the disabled’. Finally, Article 10a of Regulation No 1408/71, also inserted by Regulation No 1247/92, provides that such benefits may not be exported, in that the persons to whom the regulation applies ‘shall be granted the special non-contributory cash benefits referred to in Article 4(2)(a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence.’ Annex IIa E (France) mentions inter alia:‘(a) Supplementary allowance from the National Solidarity Fund (Law of 30 June 1956)’.
8.

Those circumstances, which the representative of the Hellenic Republic again referred to at the hearing, are not sufficient to justify the Treaty infringement committed by the defendant. It is well established in the Court's case-law that a Member State ‘may not plead provisions, practices or circumstances existing in its internal system in order to justify a failure to comply with obligations and time-limits arising from Community directives’. ( 6 ) Directive 88/357 should have been implemented not later than 31 December 1989, and Directives 90/618 and 90/619 should have been implemented not later than 20 May 1992. That did not happen in Greece. The Hellenic Republic did not even implement those directives within the time-limit of two months in each case laid down by the Commission's reasoned opinions of 7 July 1993 (Case C-109/94), 6 August 1992 (Case C-207/94), and 15 February 1994 (Case C-225/94). That is decisive in assessing whether these actions are well founded. It should also be noted that Directives 92/49 and 92/96, which the Greek Government pleads in aid, should also have been implemented already, by 31 December 1993 and 1 July 1994 respectively.
3.

Since the Commission had not learnt of any transposing measure by the Member State, it opened the procedure for failure to fulfil obligations by formal letter of 21 December 1992. There was no reply to the letter. The Commission thereupon issued a reasoned opinion on 7 February 1994. In a letter of 7 April 1994 from the Permanent Representation of the Hellenic Republic to the European Communities, the Greek Government informed the Commission that a transposition procedure was underway. As completion of the procedure was not communicated to the Commission, it brought an action before the Court on 20 September 1994. The Greek Government refers in its defence to national legislative procedures, as yet uncompleted, which represent an essential precondition for implementation of the directive in the legal system of that Member State.
12.

First, if the Court is unable to discern the actual nature and significance of the legal issue confronting the national court, it cannot give that court any useful assistance. The Court has repeatedly stated, and in quite express terms in its judgment in Lourenço Dias, cited above, that: ‘... the spirit of cooperation which must prevail in the preliminary ruling procedure [which] requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions ...; In view of that task, the Court considers that it cannot give a preliminary ruling on a question raised in a national court where, inter alia,... the interpretation of Community law or the examination of the validity of a rule of Community law sought by the national court bears no relation to the actual nature of the case or to the subject-matter of the main action ...; ... in order to enable the Court to provide a useful interpretation of Community law, it is appropriate that, before making the reference to the Court, the national court should establish the facts of the case and settle the questions of purely national law ... By the same token, it is essential for the national court to explain the reasons why it considers that a reply to its questions is necessary to enable it to give judgment ...; With this information in its possession, the Court is in a position to ascertain whether the interpretation of Community law which is sought is related to the actual nature and subject-matter of the main proceedings. If it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment.’ ( 7 )
16.

According to the case-law of the Court, the concept of a charge having equivalent effect to a customs duty in agricultural regulations has the same meaning as in the provisions of the Treaty. ( 15 ) Moreover, the concept is to be interpreted in the same way whether the trade in question is conducted within the Community or with nonmember countries. ( 16 ) The Court has nevertheless held that, where the elimination of charges having an effect equivalent to customs duties is applied to trade with third countries, its objectives and legal basis are different from those which underlie and justify the prohibition of such charges in intra-Community trade. ( 17 ) In so far as intra-Community trade is concerned, the prohibition is laid down in Article 9 of the Treaty itself, and is unconditional and absolute because it is designed to establish free movement of goods within the Community. On the other hand, in so far as trade with third countries is concerned, the question whether it is necessary to abolish, maintain, amend or introduce charges having equivalent effect must be related both to the requirements of the common commercial policy and to the requirements, consequent upon the introduction of the Common Customs Tariff, of harmonization of conditions of importation from third countries. Thus, the prohibition is not absolute in so far as trade with third countries is concerned and, when it imposes that prohibition, the Council may make exceptions or derogations from it. As we have seen, Article 18(2) expressly refers to such derogations.
63.

That argument must be dismissed. It is based on the assumption that only projects in border areas may cause possible nuisances in other — necessarily bordering — Member States and that no industry of any size is located in the area concerned. However, it has been shown — if only as matters stand at present — that the essentially urban character of the area in question does not rule out the establishment of industrial installations likely to have effects on the environment across national frontiers. The Commission's agent observed at the hearing that the City of Brussels Region is the location for chemical and petrochemical plants belonging to Solvay, Chevron, BP and Petrofina. Thus, the definition of the environment laid down by the Community legislature ( 38 ) and the aim pursued by the Community legislature ( 39 ) are hard to square with this interpretation. It must be held that the arguments set forth by the Kingdom of Belgium are marked by an outmoded conception of environmental nuisances which, in particular, does not take account of all forms of pollution, notably air and water pollution. The Commission's complaint in this respect must also be upheld.
((Direct insurance other than life assurance – Council Directive 92/49/EEC – Scope – Insurance forming part of a statutory system of social security))
3.

In this respect, it is sufficient to note that the German Government does not deny the infringement alleged against it. In its observations it has merely stated that decrees intended to bring national law into line with the aforementioned directive were being adopted to that end and that it informed the Federal contracting authorities and the relevant Länder ministries in due time that the directive in question was directly applicable as from 1 July 1993. It is settled case-law ( 2 ) that this does not, however, justify a failure by a Member State to fulfil its obligations.
Article 25(1) of Directive 92/33 provides that:

‘(1) Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 1992. They shall forthwith inform the Commission thereof.

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

Article 26(1) of Directive 92/34 provides that:

‘(1) Member States shall bring into force the laws, regulations or administrative provisions necessary to comply with this Directive no later than 31 December 1992. They shall forthwith inform the Commission thereof.

When these measures are adopted by the Member States, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods for making such reference shall be adopted by the Member States.’
21.

Even if the first objection to the admissibility of the Commission's amended claim could somehow be overcome, the Court would, in my view and for related reasons, still not be in a position to come to a decision on the merits, owing to the failure of the Commission to clarify which of the obligations of the Directives Italy is alleged to have breached. The necessity for the Commission to advance specific allegations of breaches by a Member State of its obligations is inherent in the nature of the Article 169 procedure, and was adverted to by the Court, for example, in C-266/94 Commission ν Spain. ( 16 ) Even if D.P.R. 320/54 was drawn to its attention at a very late stage, the Commission could have given some indication of its bearing on the matters covered by the Directives. It is established case-law that ‘in proceedings under Article 169 ... it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption’; ( 17 ) in the present case, it therefore fell to the Commission to establish the extent of Italy's failure to implement the Directives.
52.

Manufacturers fairly frequently install different standard equipment in their motor cars depending on the market for which the vehicles are intended. It cannot be ruled out that a consumer who has seen, on the premises of an authorized French dealer, a French version of a model with certain standard equipment will then buy a parallel imported vehicle in the belief that the vehicles are identical in point of equipment and therefore feel cheated if that turns out not to be the case. Purchase of a car is still for most people an important investment. It will therefore be natural for the consumer to carry out a thorough comparison of the prices offered by seeking exact information, inter alia concerning the vehicle's equipment. That applies not least to a consumer who approaches a dealer in another Member State through an agent, or a dealer who is outside the system of authorized dealers. An enquiry as to the designation of the model year in the period between 1 July and 31 December may certainly draw the consumer's attention to the fact that there is possibly a difference between cars offered by the authorized dealers or the parallel importer as the case may be. But in the period from 1 January to 30 June the model-year designation gives the consumer no guidance on this. In all circumstances, therefore, my view is that the consumer can be more effectively protected by the application of national rules on good marketing practice or by rules providing that motor car dealers must provide a list of standard equipment installed. The information necessary for this will normally be immediately accessible to parallel importers and will therefore obstruct free movement less than a prohibition of using the model-year designation n + 1.
39.

With regard to the question whether the Commission should have pursued its investigation further, the Court of First Instance considered (at paragraph 68 of its judgment) that ‘the rights of a complainant could not be regarded as sufficiently protected before the national court if that court were not reasonably able, in view of the complexity of the case, to gather the factual information necessary in order to determine whether the practices criticized in the complaint constituted an infringement of Article 85 or Article 86 of the Treaty or of both’. However, it satisfied itself that, in the present case, the Commission's report provided sufficient information with regard to the level of tariffs and the question of discrimination between discotheques. Furthermore, as regards the allegation that SACEM refused to allow French discothèques to use only the foreign repertoire, it found that the applicants had advanced no specific argument to call into question the powers of the French courts to gather the factual information needed to determine whether that practice by SACEM (a French association established in France) constituted an infringement of Article 86 of the Treaty. It is important to note in relation to those two findings that the appellants do not appear to dispute the sufficiency of the information available. In my view, therefore, the Court of First Instance did not err in the above approach. I agree that, in order to justify a refusal by the Commission to pursue a complaint further, it is essential in each case that the national courts (or national authorities) should be competent to deal with the matter themselves. I consider that, if the national courts are so competent, the question of which court or which authority would find it easier to pursue the investigation in question can be relevant, but that the fact that it might be easier for the Commission to pursue an investigation should not in itself oblige the Commission to do so. In my view, the issue of Community interest goes wider than a simple consideration of which court or which authority would find it easier to further the matter. As the Court of First Instance considered in ‘Automec II’, other factors can be relevant, such as the significance of the alleged infringement in relation to the functioning of the common market.
Opinion of Mr Advocate General Alber delivered on 25 June 1998. - Commission of the European Communities v Ireland. - Failure of a Member State to fulfil its obligations - Directive 94/26/EC - Failure to transpose within the prescribed period. - Case C-26/98.



European Court reports 1998 Page I-06393



Opinion of the Advocate-General

1 In this action against Ireland for failure to fulfil obligations, the Commission asks the Court to

- declare that, by failing to notify the laws, regulations or administrative provisions necessary to comply with Directive 94/26/EC (1) of 15 June 1994 adapting to technical progress Council Directive 79/196/EEC (2) on the approximation of the laws of the Member States concerning electrical equipment for use in potentially explosive atmospheres employing certain types of protection, or by failing to adopt the measures necessary to comply with it, Ireland has failed to fulfil its obligations under that directive;

- order Ireland to pay the costs.

2 Directive 94/26 adapting Directive 79/196 to technical progress, adopted on 15 June 1994, entered into force, in accordance with Article 3 thereof, 20 days after its publication in the Official Journal of the European Communities on 24 June 1994. Under Article 2 of the directive, Member States were obliged to bring into force the necessary provisions in order to comply with the directive by 31 March 1995.

3 Despite the Commission's letter of formal notice of 2 August 1995 and the reasoned opinion of 30 September 1996, Ireland did not comply with that obligation within the period of two months prescribed in the reasoned opinion.

4 In its defence, the Irish Government stated that the necessary legislative action was intended and might be completed by the time of the hearing in these proceedings. The parties both then agreed to dispense with a hearing, however, so that the Court decided to give judgment without holding a hearing.

5 The alleged failure to fulfil obligations is beyond doubt, and I therefore propose that judgment be given against Ireland, in accordance with the form of order sought.

(1) - OJ 1994 L 157, p. 33.

(2) - Of 6 February 1979, OJ 1979 L 43, p. 29.