ddrg/super_eurlex huggingface dataset:
Opinion of Mr Advocate General Darmon delivered on 2 July 1991. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Failure to implement a directive. - Case C-296/90.



European Court reports 1991 Page I-03847



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By this action the Commission seeks a declaration that by failing to take, within the prescribed period, the measures needed to implement Council Directives 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, (1) 85/614/EEC of 20 December 1985 amending, on account of the accession of Spain and Portugal, Directive 85/384/EEC, (2) and 86/17/EEC of 27 January 1986 amending, on account of the accession of Portugal, Directive 85/384/EEC, (3) or in any event by failing to inform the Commission of such measures, the Italian Republic has failed to fulfil its obligations under the EEC Treaty.

2. The Italian Republic was to have implemented those directives by 5 August 1987 at the latest, apart from Article 22 of Directive 85/384, for which an additional period was prescribed, expiring, for that State, on 5 August 1988.

3. The failure to fulfil obligations was not contested by the defendant State, which noted in its written observations that the law laying down "provisions for the performance of the obligations arising from Italy' s membership of the European Community (Community law for 1990)" was adopted on 29 December 1990 and published in Ordinary Supplement No 10 of 12 January 1991 to the Gazzetta Ufficiale della Repubblica Italiana. Article 5 of that Law confers on the Government the power to pass decrees containing the provisions needed to transpose the three directives. We learnt at the hearing that the relevant decrees have not yet been adopted and it does not appear that they are to be adopted in the immediate future.

4. In any event, it is not disputed that the Italian Republic has not adopted the measures required by the directives in question, and accordingly, I propose that the Court declare that the Italian Republic has failed to fulfil its obligations(4) and order the defendant State to pay the costs.

(*) Original language: French.

(1) - OJ 1985 L 223, p. 15.

(2) - OJ 1985 L 376, p. 1.

(3) - OJ 1986 L 27, p. 71.

(4) - Clearly, the Court does not have to rule on the Commission' s claim in so far as it refers in any event to the failure to communicate measures to the Commission. That is clearly an alternative claim, in case Italy, which had replied neither to the letter of formal notice nor to the reasoned opinion, should nevertheless adopt the measures in question - which is not the case - without informing the Commission of this, as required by Article 31(2) of Directive 85/384.
28.

The idea that, should the Commission fail to defend the Parliament's prerogatives, the latter might institute proceedings against the former under Article 175 is in my view indefensible in principle and unworkable in practice, as the present case demonstrates. The Commission has explained that, although it supports the position of the Parliament as a matter of law, it did not itself bring annulment proceedings because it considered it better, after such a long gestation period, to allow a measure as important as the directive to stand. Thus, although the Commission and the Parliament may be in agreement on the substance of the case, they are not in agreement on the desirability of bringing annulment proceedings. To ask the Commission to balance the public interest in allowing the directive to stand against the need to ensure that the Parliament's prerogatives are protected would in my view be unreasonable. It would in any event be extremely difficult, if not impossible, for the Parliament to establish, in the context of an action under Article 175, that a decision by the Commission to give priority to the former consideration was unlawful. Moreover, even if the Parliament were successful in proceedings against the Commission under Article 175, its victory would be a Pyrrhic one, for it would by then be too late for the Commission to commence proceedings for annulment against the author of the contested act. Where the Parliament's prerogatives are in issue, it is therefore far better for it to be given a direct right of action. That is in my view precisely what it enjoys as a result of the Court's ruling in Case C-70/88.
8.

In his written observations counsel for Mrs Ferrer Laderer attempted to construct, with an ingenuity that would be worthy of Don Quijote himself, an elaborate argument according to which the contested Spanish legislation leads to the abuse of a dominant position on the part of members of the regulated profession of estate agent in Spain and has the effect of conferring on them a State aid. It need simply be noted that the national court has not raised any question on the interpretation of Article 86 or Articles 92 to 94 of the Treaty and that in any event it is difficult to see how the legislation in question can have the effects attributed to it. Accordingly, I am of the opinion that the questions referred to the Court by the Juzgado de lo Penal, No 4, Alicante, should be answered as follows: (1) Council Directive 67/43/EEC does not preclude national legislation which reserves certain activities relating to transactions in real property to persons pursuing the regulated profession of estate agent. (2) Council Directive 67/43/EEC does not entitle a national of a nonmember State to practise in a Member State as an estate agent without holding the qualifications required by the law of that Member State for admission to the profession of estate agent. (3) Where a national of a Member State wishes to pursue the profession of estate agent in another Member State in which that profession is reserved to the holders of specific qualifications, the competent authorities of the second Member State must examine to what extent any qualifications obtained by the person concerned in the first Member State are equivalent to the qualifications required in the second Member State. When the qualifications obtained in the first Member State do not correspond fully to the qualifications required in the second Member State, the person concerned may be required to demonstrate, in particular by means of an examination, that he has acquired the knowledge and abilities not attested to by the qualifications obtained in the first Member State. Where the full equivalence of the qualifications obtained in the first Member State is not recognized, the person concerned is entitled to be informed of the reasons for the decision and must be able to challenge it in judicial proceedings, so that its conformity with Community law may be tested.
Opinion of Mr Advocate General Gulmann delivered on 6 May 1992. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Delays in the refund of VAT to taxable persons not established in the territory of the country. - Case C-287/91.



European Court reports 1992 Page I-03515



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. Council Directive 79/1072/EEC of 6 December 1979 on the harmonization of the laws of the Member States relating to turnover taxes ° Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (1) should, under the first paragraph of Article 10 thereof, have been implemented by the Member States no later than 1 January 1981.

2. The Commission takes the view that the Italian Republic has failed to fulfil its obligation to comply with the directive and has therefore brought proceedings for a declaration that:

° by allowing the Ministero delle Finanze systematically to disregard the time-limits for refunds of value added tax to taxable persons not established in the territory of the country, without intervening from the outset to remove the consequent harm to Community law, the Italian Republic has failed to fulfil its obligations under Article 7(4) of the Eighth Council Directive (79/1072/EEC) of 6 December 1979 on arrangements for the refund of value added tax to taxable persons not established in the territory of the country;

° and that the Italian Republic should be ordered to bear the costs.

The Italian Republic has not denied that it has failed to ensure compliance with the directive, as the Commission has claimed.

3. Accordingly I have no choice but to propose to the Court that it deliver a judgment in accordance with the Commission' s claims.

(*) Original language: Danish.

(1) ° OJ 1979 L 331, p. 11.
4.

Community harmonization of inspection fees took place in two stages. Article 1(1) of Directive 85/73 provides that: ‘As from 1 January 1986 the Member States shall ensure that: — fees are collected when the animals referred to in paragraph 2 are slaughtered for the costs occasioned by health inspections and controls, ... — any direct or indirect refund of fees is prohibited.’ Article 2(1) provides that the Council shall, before 1 January 1986, take a decision on the standard level or levels of such fees and on the ‘detailed rules and principles for the implementation of this Directive, and on possible exceptions’. Article 2(2) provides that: ‘Member States shall be authorized to collect an amount exceeding the level or levels referred to in paragraph 1 provided that the total fee collected for each Member State remains lower than or equal to the real figure for inspection costs.’ Although, as we have seen, the Council was required to fix the standard levels of fees before 1 January 1986, that was not in fact done until the adoption on 15 June 1988 of Decision 88/408. Article 2(1) of the decision fixes the standard levels of inspection fees for certain kinds of animal. By Article 2(2): ‘... Member States where salary costs, the structures of establishments, and the ratio between veterinarians and inspectors differ from those of the Community average adopted for the calculation of the standard amounts laid down in paragraph 1 may depart from them through increases or reductions up or down to the real figure for inspection costs. Member States shall have recourse to the exemptions laid down in the first paragraph on the basis of the principles set out in the Annex. In no case shall the application of the exemptions provided for in the first paragraph lead to reductions of more than 55% up to and including 31 December 1992 or, as from 1 January 1993, 50% of the average levels set out in paragraph 1.’ The Annex to the decision specifies that Member States may provide for a general reduction in the standard rates, where there are substantial differences in the cost of living and salary costs, or may do so in certain circumstances for individual establishments. The Annex also gives a number of examples of circumstances in which Member States may increase rates in order to cover costs. By Article 11 of the decision: ‘Member States shall implement the provisions of this Decision not later than 31 December 1990.’
7.

The appellant goes on to complain that the Court of First Instance did not consider certain arguments relating to Mr Engel's aptitude, thereby failing to fulfil its obligation to state reasons. In the judgment in Vidrányi v Commission, the Court held that the Court of First Instance is bound to comply with ‘a general principle which places on every court the obligation to state the reasons on which its decisions are based, by indicating in particular the reasons which led it not to uphold a complaint formally raised before it’. ( 7 ) However, the Court distinguished in that connection between a ‘distinct plea’ and ‘additional arguments’. On the one hand, the Court of First Instance has fulfilled its obligation to state reasons only if it has responded to all the pleas in law raised before it. On the other hand, it is not bound to set out expressly the arguments put forward in support of the pleas. ( 8 ) As regards Mr Engel's aptitude to carry out the duties attaching to the post to be filled, the Court of First Instance stated as follows in paragraphs 32 and 33 of the contested judgment: ‘As regards the manifest error allegedly committed by the appointing authority in proceeding to appoint Mr Engel, it must be noted that the defendant has pointed out, without being contradicted on this point by the applicant, that Mr Engel has studied finance and economic sciences at the University of Montreal, that he has worked in high positions in various Canadian and European banks and that he has command of four Community languages. Moreover, it does not emerge from the documents placed on the file nor has the applicant satisfactorily demonstrated to the Court that the defendant in appointing Mr Engel to the post to be filled committed a manifest error of assessment, exceeded the limits of its own competence or used its powers for purposes other than those for which they were granted.’ By stating this and also, as has been pointed out already, that the appointing authority has a wide discretion in comparing candidates' merits (see section 4 above), the Court of First Instance gave sufficient reasons for its decision that the defendant did not commit a manifest error of assessment in appointing Mr Engel. The Court of First Instance was not bound to make express mention of each argument raised by the appellant, who based himself on a presumption that Mr Engel did not have the aptitude to carry out the duties attaching to the post to be filled. It may be considered in particular that the Court of First Instance rejected certain of the appellant's suggestions on the ground that they were unproven or irrelevant: the suggestion that Mr Engel could not have sat examinations at the end of his studies in Montreal; ( 9 ) the suggestion that the positions occupied by Mr Engel before he was appointed ranked too low compared with the management duties which he is now carrying out; ( 10 ) the suggestion that Mr Engel did not have all the qualifications required by the vacancy notice or, in any event, was not as well qualified as the appellant. ( 11 )
12.

Against that background, I consider that the general conditions specified by the Court for a measure to apply, by way of exception, retroactively, that is to say that the purpose of the measure so demands and that the legitimate expectation of those concerned is duly protected. ( 7 ) Since the objective of the regulation was to prevent, as quickly and effectively as possible, serious acts of speculation, I consider that no objections may be raised against the Commission's view that that objective required making the amending regulation retroactive. ( 8 ) In my opinion, it is appropriate to accept the Commission's point of view to the effect that the legitimate expectation of traders in a case such as this ought not to be protected. I agree with the Commission's statement that: ‘The principle of the protection of the legitimate expectation of those concerned is not infringed for the simple reason that this is a case in which the traders in question cannot have any legitimate expectation. ... Regulation (EEC) No 805/86 certainly concerns skimmed milk, and cannot provide otherwise since it was in that state that the product was imported. Where that product is enriched with fat, in the light of the principle “salvis verbis legis, sentenciam eius circum-venit”, it is to be expected that the legislature, once informed of the situation, would immediately reestablish the status quo ante by putting a stop to that situation, just as no trader could hope that the court would extend its protection to his speculative transactions which were made possible by taking advantage of the letter of the law’. ( 9 ) It was therefore lawful for the Commission to make the regulation apply as from 12 February, which was, first, the date of approval of the regulation by the Management Committee and, secondly, a date close to the time at which the Commission became aware of the existence of the transactions which were to be considered as circumventing Regulation No 805/86.
9.

Neither the operative part nor the reason ing of the judgment are explicit as to whether the judgment relates to one or the other, or both, of the time-limits laid down by the abovementioned provision. The fact that the different elements of Article 28 of Decree No 382/1980 were submitted as a whole for assessment by the Court and that I referred, in my Opinion, to the dual nature of the time-limits in the third paragraph of that article suggests that the Court also proceeded on the basis that both limits were to be examined. In doing so, the Court did not make an express finding that either the one-year duration of the contracts or the maxi mum duration of extensions was compatible with Community law. However, the wording of paragraph 17 of the judgment gives rise to doubt. It states as follows: ‘Lastly, the Italian Government claims that the provision in question is also justified by the need to restrict the number of foreign-language assistants according to the needs of the university, which depend upon the number of students wishing to study foreign languages. However, it should be noted that this aim of good management may be achieved by other means and in particular by not renewing the contracts of assistants who are not needed, in accordance with the third paragraph of section 28 of the Presidential Decree.’
10.

It is also significant in this connection that the contested provision requires an opinion to be obtained from the Administrative Board for State Monopolies. The Commission rightly considers that the obligation to consult that board confirms that Article 2 of the Law is not consistent with Article 5 of the directive. First, a general obligation to obtain an opinion cannot be grounded in the need to obtain technical assistance with a view to the correct inclusion of tobacco products in the scales, since the Administrative Board must also be consulted when it is merely a question of altering prices already included in the scales. Secondly, there is nothing in the wording of the provision to support the argument that the Administrative Board is precluded from expressing its opinion as to the prices requested by importers. The Italian Government has therefore not given a satisfactory explanation of the purpose of that consultation and the Commission has doubtless right to maintain that the procedure entails prior information of the national producer, which is in competition with importers, regarding the price policy which the importers intend to follow. In that connection, it is immaterial that, according to the Italian Government, all importers submit their requests to the Minister of Finance through the Administrative Board. That they use the Board in this context may be due to the fact that they are certain that the Board will in any event have cognizance of their requests. It can therefore be held that the obligation of consultation constitutes indirect interference with the freedom with regard to pricing policy which the directive seeks to secure.
12.

The national court clearly inclines to the view that this constitutes a case of force majeure. In order to decide the dispute, it considers that the following questions should be answered: ‘1. Is there a case of force majeure within the meaning of Article 22(4) of Commission Regulation (EEC) No 262/79 on the sale of butter at reduced prices for use in the manufacture of pastry products, ice-cream and other foodstuffs (OJ 1979 L 41, p. 1) when: (a) the failure to respect the time-limit for the production of proof is due to the fact that the administrative authorities of another Member State have delayed so long in verifying that the butter has been used in conformity with the regulation, issuing the confirmation on the control copy and returning the control copy to the customs office of departure or the corresponding central body that the eight-month time-limit laid down by the legislator for the confirmation of the processing by the administrative authorities is exceeded to a significant extent, and (b) the agent established in the other Member State of the export undertaking mandated by the purchaser of the intervention goods to effect the transaction has repeatedly, from a time some eight months before the expiry of the time-limit for producing proof, and at weekly intervals for part of that period, requested the administrative authorities of the other Member State to confirm the utilization of the goods in conformity with the regulation and to return the control copy, and (c) the purchaser of the intervention goods has failed to make application as provided for in detail in Article 14 of Commission Regulation (EEC) No 1687/76 of 30 June 1976 (OJ 1976 L 190) for other documents to be accepted as equivalent following the non-return of the control copy to the customs office of departure or the corresponding central body within three months of the expiry of the time-limit fixed for the completion of the transaction in question? If the first question is answered in the negative: 2. Is Article 22(4) of Commission Regulation (EEC) No 262/79 on the sale of butter at reduced prices for use in the manufacture of pastry products, ice-cream and other foodstuffs (OJ 1979 L 41, p. 1) invalid in so far as it provides that, except in cases of force majeure, the processing security is to be forfeited even where the failure to respect the time-limit for producing proof is to be ascribed to reasons beyond the control of the successful tenderer?’
3.

In the order for reference, the Finanzgericht stated, in particular: ‘“Ball bearings” in the technical sense means only radial bearings. They are mass produced and imported in great quantities from Japan into the EEC. On the other hand the imported “bearing bushes”, which apparently are manufactured and imported in much smaller quantities, have, like sliding bushes, technically only linear movements intended for sliding, for example, machine cartridges and tables. Both their function and construction thus distinguish them from “ball bearings” with which all they have in common from the technical point of view is the type of roller used, namely balls.’ The Finanzgericht added: ‘If in spite of that technical distinction the bushes are to be classified under Nimexe code 84.62-09, as the Senate inclines to think they should be, that does not necessarily mean that the wording (“ball bearings ... corresponding to Nimexe code 84.62-09 ...”) of Article 1(1) of Council Regulation (EEC) No 1739/85 is in that respect “too wide” and therefore invalid in so far as it includes bearing bushes although there may have been no investigation of dumping practices in relation thereto. At least in those circumstances the provision could be interpreted as not including bearing bushes.’ It is against that background that the question raised by the Finanzgericht should be understood. It reads as follows: ‘Is Article 1(1) of Council Regulation (EEC) No 1739/85 of 24 June 1985 imposing a definitive antidumping duty on imports of certain ball bearings and tapered roller bearings ... invalid or to be interpreted as meaning that “ball bearings ... corresponding to Nimexe code 84.62-09 ...” includes only ball bearings in the technical sense, that is to say only radial bearings, and not so-called bearing bushes (Kugelbuchsen) (linear-only guideways)?’