ddrg/super_eurlex huggingface dataset:
56.

In view of the foregoing considerations, I suggest that the Court of Justice give the following answer to the question referred to it by the Tribunal de Commerce, Albi: Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements allows such agreements to be relied on by the parties to them against third parties to justify their refusal to supply to undertakings outside the distribution network products or services covered by such agreements, or as a defence against actions or complaints by third parties who allege that such agreements are void by virtue of the general principle of freedom of competition. But that Regulation cannot be relied upon to prohibit undertakings outside the distribution network, even those not acting for final consumers as ‘authorized intermediaries’, from engaging in the independent business of buying and selling vehicles, whether new or used, outside that network. It is for the national courts to consider, in each case, the legality of the methods used by independent dealers to obtain the motor vehicles in which they deal.
7.

The Commission puts forward a number of arguments in response to the defendant's submissions. First of all, the fact that the national element of an international journey is negligible does not exempt Greece from taxing that part of the journey. Furthermore, as regards the method of calculating the VAT payable on such national journeys, the fact that it is negligible and that the administrative cost of levying the tax therefore far exceeds the sum collected in no way relieves Greece of its obligation to tax the part of the journey at issue here. The same applies, according to the Commission, to the alleged difficulty in establishing in advance the amount of the VAT on the ground that the route of the cruise may have to be changed. The defendant's contention that the taxation required under the directive results in a competitive situation disadvantageous to it is, according to the Commission, equally unfounded. The Sixth Directive permits exemptions and the alleged distortion of competition would, in any event, have no practical significance, given that the defendant can in any case exempt the journey within international waters from VAT. Furthermore, the fact that the proposal for amending the Sixth Directive envisages exempting from VAT the national element of the international transport of persons also in order to rule out possible distortions of competition in this particular sector confirms, in the Commission's view, that until such time as it is abolished, the obligation to levy the tax is a definite requirement under the legislation in force. The point made by the defendant that it is the practice of the Member States to exempt the national element of the journey in the context of international maritime passenger transport is also irrelevant, according to the Commission: that particular situation cannot in any way be transposed to the case of round trips.
((Failure by a Member State to fulfil obligations – Public works contracts – Failure to publish a tender notice))
17.

The Commission's view must be accepted. In this connection I should like to refer, first, to the judgment in d'Urso. That case concerned a transfer of an undertaking in which, pursuant to the contract of transfer and in accordance with the trade-union agreements to which that contract referred, only 940 out of a total of 1458 employees were transferred to the service of the transferee. The Court was then called upon to consider whether Article 3(1) of the Directive is to be interpreted as meaning that all contracts of employment or employment relationships existing on the date of the transfer of an undertaking between the transferor and the employees of that undertaking are automatically transferred to the transferee by the mere fact of the transfer. The Court answered that question in the affirmative, on the basis of its own case-law. Thus it confirmed the view it had already expressed in Berg, ( 9 ) that the Directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor. ‘The rules applicable in the event of a transfer of an undertaking or a business to another employer are thus intended to safeguard, in the interests of the employees, the existing employment relationships which arc part of the economic entity transferred.’ ( 10 )
Opinion of Mr Advocate General Cosmas delivered on 16 January 1997. - Intelligente Systemen, Database toepassingen, Elektronische diensten BV (IDE) v Commission of the European Communities. - Arbitration clause - Software development contract - Claim for payment of balance outstanding and for damages - Counterclaim for repayment of amounts paid on account. - Case C-114/94.



European Court reports 1997 Page I-00803



Opinion of the Advocate-General

1 I initially delivered my Opinion in the present case on 28 March 1996. By order of 12 September 1996 the Court (Second Chamber) ordered the reopening of the oral procedure, pursuant to Article 61 of the Rules of Procedure of the Court, following the untimely death on 1 June 1996 of Mr F.A. Schockweiler, the Judge-Rapporteur.

2 Since none of the persons entitled to submit oral observations at this stage of the proceedings has expressed an interest in so doing, the Court has not set a date for a new hearing.

3 That being so, I have nothing to add to my Opinion of 28 March 1996.
Opinion of Mr Advocate General Tesauro delivered on 7 November 1996. - Commission of the European Communities v Federal Republic of Germany. - Failure by a Member State to fulfil obligations - Directive 91/271/EEC - Urban waste water treatment. - Case C-297/95.



European Court reports 1996 Page I-06739



Opinion of the Advocate-General

1 By application lodged pursuant to Article 169 of the Treaty, the Commission requests the Court to declare that, by failing to adopt within the period prescribed the measures necessary to comply with Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, (1) the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty.

In that connection, suffice it to note that the German Government does not deny the breach of which it is accused. Indeed, in its defence it acknowledged the delay in transposition, attributable to difficulties arising from the division of powers between the Laender and the central authorities, and declared that it intended to ensure that the directive in question would be transposed (at least in part) during 1996 at the latest.

2 I accordingly propose that the Court uphold the application and order the defendant State to pay the costs of the proceedings.

(1) - OJ 1991 L 135, p. 40.
Opinion of Mr Advocate General Fennelly delivered on 5 December 1996. - Myrianne Coen v Belgian State. - Reference for a preliminary ruling: Conseil d'Etat - Belgium. - Temporary staff - Recruitment procedure - Member States invited to propose candidates - Actions before the national courts. - Case C-246/95.



European Court reports 1997 Page I-00403



Opinion of the Advocate-General

1 I delivered my first Opinion in this case on 28 March 1996. By Order of 2 October 1996, the President of the Second Chamber reopened the oral procedure in accordance with Article 61 of the Court's Rules of Procedure, following the untimely death on 1 June 1996 of the Judge-Rapporteur, Mr Schockweiler.

2 None of those entitled to present oral argument at this stage of the case in accordance with Article 20 of the Statute of the Court has sought to do so, and therefore no new oral hearing has been held. In these circumstances, I have nothing to add to my Opinion of 28 March 1996.
Opinion of Mr Advocate General Fennelly delivered on 5 December 1996. - Commission of the European Communities v Kingdom of Belgium. - Directive 92/42/EEC on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels - Non-transposition. - Case C-205/96.



European Court reports 1997 Page I-00795



Opinion of the Advocate-General

1 The Commission has brought the present infringement proceedings pursuant to Article 169 of the EC Treaty. By application of 17 June 1996, it seeks a declaration that by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels (hereinafter `the Directive'), (1) the Kingdom of Belgium has failed to fulfil its obligations under the Treaty.

2 Member States were required by Article 9(1) of the Directive to `adopt and publish the provisions necessary to comply with' the Directive by 1 January 1993 and to inform the Commission forthwith. Belgium has not informed the Commission of any measures it has taken to comply with the Directive.

3 Belgium has not disputed its failure to implement the Directive, which it attributes to institutional difficulties arising from the necessity to organize coordination, on the one hand, between the Regions, in so far as they are responsible for the matters concerning the rational use of energy, and, on the other hand, between the Regions and the Federal Government, which is responsible for regulating the marketing of the boilers in question.

4 Article 189 of the Treaty obliges Member States to adopt the measures necessary to ensure the attainment of the objectives of each directive. This specific requirement is reinforced by their general duty pursuant to Article 5 of the Treaty `to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community'. It is undisputed that the Directive was not implemented by Belgium within the prescribed time-limit. The Court has consistently held that Member States may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down by a directive. (2)

Conclusion

5 I therefore recommend that the Court:

(1) declare that, by failing to adopt within the prescribed period the provisions necessary to comply with Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty;

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

(1) - OJ 1992 L 167, p. 17.

(2) - See, for example, Case C-312/95 Commission v Luxembourg [1996] ECR I-0000, paragraph 9 of the judgment.
Opinion of Mr Advocate General Lenz delivered on 6 March 1997. - Commission of the European Communities v French Republic. - Failure of a Member State to fulfil its obligations - Directive 93/36/EEC - Failure to transpose within the prescribed period. - Case C-312/96.



European Court reports 1997 Page I-02947



Opinion of the Advocate-General

1 In these proceedings, the Commission alleges that the French Republic has failed to fulfil its obligations under Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, (1) and in particular under Article 34 thereof, by failing to adopt the laws, regulations and administrative provisions necessary to implement the directive. In the alternative, the Commission seeks a declaration that the French Republic has failed to fulfil its obligations under the above provisions by not immediately informing the Commission of such measures.

2 Article 34 of the directive requires the Member States to bring into force the laws, regulations and administrative measures necessary to comply with the directive before 14 June 1994 and immediately inform the Commission thereof.

3 The French Republic does not deny that it has not transposed the directive within the prescribed period. It merely states that the relevant draft legislation has been entered on the parliamentary agenda for the year 1996/97.

4 As it is clear, therefore, that the directive in question has not been transposed within the prescribed period, there is no need to examine the Commission's alternative plea.

5 I therefore propose that the Court declare that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to transpose Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, the French Republic has failed to fulfil its obligations under that directive and in particular under Article 34 thereof. I also propose that the French Republic be ordered to pay the costs.

(1) - OJ 1993 L 199, p. 1.
25.

First, it is well established that, in order to arrive at an interpretation of Community law which will be helpful to the national court, it is necessary for the national court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which they are based. ( 16 ) That requirement is not satisfied in the present case, since there are several elements of basic information missing in the order for reference. The order does not state the origin of Mr Tabouillot's vehicle (a point to which I will return below). It does not set out the relevant national rules in sufficient detail: the two existing formulas for calculating power rating are not described, nor is it explained in precisely what circumstances the formula laid down in the 1956 circular is applied. The order does not state what effect the choice of formula has on the taxation of motor vehicles in France generally, nor does it state the effect on the taxation of motor vehicles imported from other Member States in particular. It follows that the referring court has not explained its doubts on the compatibility of the French rules with Article 95 of the Treaty. Lasdy, the order does not state in what way the Court's judgment could be relevant for the main proceedings (again a point to which I will return): if the application of the 1956 circular were contrary to Community law, would that mean that the 1977 circular should be applied and, if so, would that result in a different level of taxation?
Opinion of Mr Advocate General Léger delivered on 16 December 1997. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil obligations - Directive 90/434/EEC - Failure to transpose. - Case C-8/97.



European Court reports 1998 Page I-00823



Opinion of the Advocate-General

1 By application lodged at the Court Registry on 15 January 1997, the Commission requested the Court to declare that, `by failing to adopt or, in the alternative, to communicate to the Commission, within the period prescribed, the laws, regulations and administrative provisions necessary to comply fully with Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, (1) the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and that directive.'

2 Under Article 12(1) of the Directive, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with it not later than 1 January 1992 and forthwith to inform the Commission thereof.

3 The Hellenic Republic does not deny that it has so far failed to adopt the necessary provisions, but it points out that the draft legislation designed to incorporate the Directive's provisions in the Greek legal system is at present being adopted by the Greek Parliament.

4 Since the Directive was not transposed within the period specified therein, the Commission's action must be treated as well founded (2) and the Hellenic Republic ordered to pay the costs, pursuant to Article 69(2) of the Rules of Procedure.

Conclusion

5 I accordingly propose that the Court should:

(1) rule that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply fully with Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, the Hellenic Republic has failed to fulfil its obligations under Article 12(1) of that directive;

(2) order the Hellenic Republic to pay the costs.

(1) - OJ 1990 L 225, p. 1 (`the Directive').

(2) - See, for example, the judgment in Case C-139/96 Commission v Germany [1997] ECR I-4845.
Opinion of Mr Advocate General La Pergola delivered on 18 June 1998. - Commission of the European Communities v Hellenic Republic. - Failure of a Member State to fulfil its obligations - Directive 95/23/EC - Failure to transpose within the prescribed period. - Case C-386/97.



European Court reports 1998 Page I-06127



Opinion of the Advocate-General

1. By application of 12 November 1997, the Commission of the European Communities brought an action for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 95/23/EC of 22 June 1995 amending Directive 64/433/EEC on conditions for the production and marketing of fresh meat, the Hellenic Republic has failed to fulfil its obligations. (1)

2. The defendant Member State does not dispute that it has failed to fulfil its obligations as the applicant alleges, merely pointing out that a presidential decree transposing the directive in question was in the process of being adopted. However, according to the consistent case-law of the Court, (2) that fact does not remedy the failure to fulfil obligations.

3. I therefore propose that the Court should grant the Commission's application and, in accordance with Article 69(2) of the Rules of Procedure, order the Hellenic Republic to pay the costs of the proceedings.

(1) - OJ 1995 L 243, p. 7.

(2) - See inter alia Case C-147/94 Commission v Spain [1995] ECR I-1015 and Case C-294/96 Commission v Belgium [1997] ECR I-1781.
Opinion of Mr Advocate General Jacobs delivered on 22 February 2001. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Directive 94/56/EC. - Case C-494/99.



European Court reports 2001 Page I-02761



Opinion of the Advocate-General

1. In this case the Commission seeks a declaration, pursuant to Article 226 EC, that the Hellenic Republic, by failing to adopt or, in the alternative, to communicate to the Commission within the prescribed time-limit the laws, regulations and administrative provisions necessary to comply entirely with Directive 94/56/EC of 21 November 1994 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents, the Hellenic Republic has failed to fulfil its obligations under the Treaty and the directive.

2. The purpose of the directive, as set out in Article 1, is to improve air safety by facilitating the expeditious holding of investigations, the sole objective of which is the prevention of future accidents and incidents. The directive lays down basic rules governing such investigations.

3. Article 12(1) of the directive provides that:

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive not later than 21 November 1996. They shall forthwith inform the Commission thereof.

4. The Hellenic Republic recognises that it has not yet transposed the provisions of the directive into Greek law but states in its defence that a draft law will shortly be put before the parliament. In its rejoinder it states that the draft law has been submitted to the Council of State.

5. It follows that the Commission is entitled to the declaration which it seeks.

Conclusion

6. Accordingly the Court should in my opinion:

(1) declare that, by failing to adopt within the prescribed time-limit the laws, regulations and administrative provisions necessary to comply entirely with Directive 94/56/EC of 21 November 1994 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents, the Hellenic Republic has failed to fulfil its obligations under the Treaty and the directive;

(2) order the Hellenic Republic to pay the costs.
((Customs Code – Customs value of imported goods – Price of goods and buying commission – Duty payable on full amount))
((Comitology – Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission – Annulment in part of Regulation (EC) No 1655/2000 of the European Parliament and of the Council concerning the Financial Instrument for the Environment (LIFE) – Restriction of the Council's choice of implementing procedures provided for by Decision 1999/468/EC – Obligation to state reasons))
((Free movement of goods – Measures having an equivalent effect to quantitative restrictions on exports – Justification for the protection of industrial property – Regulation (EEC) No 2081/92 – Use of protected designations of origin – Requirement for cheese to be grated in the region of production))
((Trade marks – Parallel imports – Claim of exhaustion under Article 7(1) of Directive 89/104/EEC – Proof of consent – Burden of proof – Articles 28 EC and 30 EC))
((Appeal – Competition – Distribution of motor vehicles – Partitioning – Article 85 of the EC Treaty (now Article 81 EC) – Regulation (EEC) No 123/85 – Whether the undertaking concerned is answerable for the infringement – Right to a fair hearing – Duty to state reasons – Legal consequences of disclosure to the press – Effect of validity of the notification on the amount of the fine – Cross-appeal))
((Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases – Destruction of fish stocks infected by viral haemorrhagic septicaemia ( VHS) – Compensation – Obligations of the Member State – Protection of fundamental rights, particularly the right of property – Validity of Directive 93/53))
(Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk – Council Regulation (EEC) No 3950/92 – Commission Regulation (EEC) No 536/93 – Reference quantities exempt from the levy – Correction – Notification to producers)
((Directive 94/45/EC – European Works Council – Group of undertakings – Central management situated in a non-Member State – Constructive representative within the Community – Obligation of the undertakings in the group to send information to that representative – Extent))
((Failure by a Member State to fulfil its obligations – Conservation of natural habitats – Wild flora and fauna))
((Transport – Road transport – Social legislation – Regulation (EEC) No 3820/85 – Rest periods under Article 8 – Jurisdiction of the Court of Justice to interpret the AETR Agreement))
((Approximation of legislation – Misleading and comparative advertising – Permissibility of comparative advertising))
((Directive 79/112/EEC – Directive 2000/13/EC – Foodstuffs – Labelling – Obligation to indicate that the period of minimum durability has expired))
((Failure of a Member State to fulfil obligations – Directive 97/43/Euratom – Ionizing radiation in relation to medical exposure – Failure to transpose within the prescribed period))
((Appeal against a judgment of the Court of First Instance – Postal sector – Concept of State aid – Normal market conditions))
((Telecommunications – General authorisations and individual licences – Directive 97/13/EC – Article 11 – Fees and charges for individual licences))
((Directive 93/37/EEC – Public works contracts – Article 19 – Variants – Minimum conditions – Obligation to publish in the tender document))