ddrg/super_eurlex huggingface dataset:
46.

The Commission points out that An Bord Bainne was able both in law and fact to take the butter. There was also nothing to prevent An Bord Bainne from paying for it. If that had happened, the security lodged under Article 6 would have been released and the undertaking would have been obliged to lodge the (higher) security referred to in Article 7 for carrying out the export to the Soviet Union. The Commission also maintains that this would not have been unreasonable since An Bord Bainne, in purchasing the butter, was indeed obliged to export it to the Soviet Union but, on the other hand, was not obliged to sell it as butteroil. The butter could have been sold in an unprocessed form. ( 11 ) An Bord Bainne was thus free to seek another Soviet purchaser for the butter it had bought. The Commission has not stated its position on the question whether An Bord Bainne could have relied on force majeure in respect of the security lodged under Article 7 if it could in fact have established that the butter which it had purchased could not find a market in the Soviet Union. On the basis of the Commission's view, An Bord Bainne would in any event have been obliged to remove the butter and pay for it. It should then have done everything which might be expected of a prudent trader to secure its sale in the Soviet Union. An Bord Bainne would in that situation have paid for the butter and for that reason indeed have to be regarded as owner of the butter. The Commission has not explained more specifically the use to which An Bord Bainne could have put the butter under the regulation if it was unable to secure its sale in the Soviet Union. It seems to me that the Commission's main view, which may be correct in strictly formal terms, ought not to be accepted. It might lead to unreasonable results in practice. In a situation such as that in the present case, traders should not be placed under an obligation to remove and pay for the butter which they have purchased unless there are specific grounds for believing that they had in fact a reasonable prospect of finding buyers in the Soviet Union for salted butter within the time-limits for export under the regulation. Without being contradicted by the Commission, An Bord Bainne and Inter-Agra strongly disputed that such a possibility existed, inasmuch as neither salted butter nor butteroil processed from such butter was capable of being sold in the Soviet Union. The national court must decide whether or not An Bord Bainne and Inter-Agra are correct in this contention.
6.

According to Article 59 of the EEC Treaty, restrictions on freedom to provide services within the Community are to be abolished in respect of nationals of Member States established in a State of the Community other than that of the person for whom the services are intended. According to the second paragraph of Article 59 the Council may, acting by a qualified majority on a proposal from the Commission, extend the application of the rules of the Treaty on the provision of services to nationals of a third country who are established within the Community. Under Article 60 of the Treaty, services are to be considered as such within the meaning of the Treaty where they are normally provided for remuneration, in so far as they are not covered by inter alia the provisions relating to freedom of movement of goods, capital and persons. With a view to the more specific implementation of the rules relating to freedom to provide services, the Council had at the material time ( 1 ) adopted Directive 77/780/EEC on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (hereinafter ‘Directive 77/780’). Article 7(1) thereof provides as follows: ‘The competent authorities of the Member States concerned shall collaborate closely in order to supervise the activities of credit institutions operating ... in one or more Member States other than that in which their head offices are situated. They shall supply one another with all information concerning the management and ownership of such credit institutions that is likely to facilitate their supervision and the examination of the conditions for their authorization and all information likely to facilitate the monitoring of their liquidity and solvency.’
7.

Before addressing the questions referred to the Court, I must first clarify a point. As submitted by the Commission and confirmed at the hearing, the provisions of Community law referred to in the order for reference are not those applicable to the present case. Suffice it to note first, taking the questions in the same sequence as they appear in the order for reference, that Article 35(3) 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, as amended and updated by Regulation (EEC) No 2001/83 of 2 June 1983, ( 1 ) (hereinafter ‘the Regulation’) is not relevant here, although it is the provision referred to by the national court in Question 1. That question concerns the interpretation of the Regulation where national rules provide that welfare benefits are payable only if the claimant meets the conditions relating to the onset of the illness. The Commission and the defendant point out, however, that the relevant provision of Netherlands law — Article 44(1) of the ZW — does not stipulate any such conditions, but merely determines the time when invalidity occurs for the purposes of entitlement to benefit. The provision referred to in the order for reference therefore has no bearing on the case under consideration. The other questions referred by the national court are predicated on the answer to Question 1: for this reason alone they have not been correctly formulated. Furthermore, Questions 3 and 4 refer to another provision of the Regulation, namely Article 25(1), which is also irrelevant to the applicant's situation. Those questions assume that the claimant was unemployed at the time when she became unfit for work, an assumption which, according to the Commission and the defendant, is incorrect. I agree. The fact is that she has always worked and has never applied for unemployment benefit or other related benefits. In those circumstances, I suggest that the analysis requested of the Court should focus on the essence of the issues which the national court intended to raise, by looking at the Community rules requiring interpretation instead of those erroneously referred to in the order for reference. In short, the questions raised by the Netherlands court concern, in their different aspects, the question whether or not Community law precludes the national risk-selection rules from being applied to the claimant, causing her to be denied sickness benefits to which she would otherwise be entitled. On the other hand, in the circumstances which gave rise to these proceedings, Community law can render inapplicable the national legislation only in so far as the claimant is a migrant worker who has worked and had insurance cover continuously.
((Directive 90/531/EEC – Interpretation of Article 8 – Transposition into national law – Obligation to pay compensation in the event of incorrect transposition))
3.

As far as the first question is concerned — namely, whether the pennant must also be displayed by the boarding craft — the Commission considers that it should be answered in the negative. It argues, essentially, that a boarding craft operates not independently but as an adjunct to the main vessel, so that the latter is the only ‘inspection vessel’ under an obligation to fly the pennant in accordance with Article 2 of the regulation. I do not think that argument can be upheld. The Commission overlooks the fact that the essential purpose of the Community provision at issue is to ensure that vessels engaged in fishing inspections are immediately recognizable. The prescribed symbol must be displayed so that it is ‘clearly visible’: the underlying reason for the provision is therefore to lay down uniform rules concerning outward appearance to facilitate the identification of vessels engaged in fishing inspections. It is not true that the boarding craft, for the present purposes, must be regarded as not operating independently from the main vessel, with the result, mentioned earlier, that the obligation to fly the pennant applies only to the latter. There may be an operational relationship between the two vessels, in that the boarding craft carries out the same work as the vessel from which it came. But as soon as it is put into the sea and moves off, the boarding craft is independently engaged in the same activity as the main vessel, which in this case is the carrying out of inspections. That does not exclude — on the contrary, it requires — the application to the boarding craft of the identification rules laid down in general terms by the Community regulation for all vessels engaged in fishing inspections. It need hardly be added that the smallness of the dinghy certainly does not prevent its being described as an ‘inspection vessel’. According to a long-established tradition of maritime law, a craft can be described as a vessel regardless of its dimensions. ( 2 ) If a boarding craft is covered by the term inspection vessel, as I think it should be, it necessarily follows that it is required to display the prescribed identification symbol in the same way as the vessel which launches it. If that were not the case, the clear purpose of Article 2 would be frustrated. That provision must be read in close conjunction with Article 3(1) of the Regulation, according to which the competent authority of the Member State may require the skipper of a fishing vessel to stop, manoeuvre or carry out other actions necessary to facilitate boarding. There is no doubt that the orders given by that authority, and the corresponding obligations of the skipper of the fishing vessel, are dependent on the proper signalling rules, which apply to any inspection activity. A signal announcing the inspection must therefore be given in the prescribed manner, whatever the means by which it is carried out. It is of no importance, for the purposes of the applicable Community provision, whether the craft concerned is a dinghy or the main vessel.
18.

The Court has consistently held, ( 2 ) with regard to penalties, that where a Community regulation does not specifically provide any penalty for infringements or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. The choice of penalties is within the discretion of the Member States, but they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to infringements of national law of a similar nature and importance and penalties must in all circumstances be effective, proportionate to the infringement and dissuasive. Moreover, with regard to the upper limit of the Member States' choice of penalties for infringement of provisions of Community law, the Court declared, most recently in a judgment delivered on 16 December 1992, ( 3 ) that: ‘It should be noted first that in the absence of harmonization of Community legislation in the field of customs offences, the Member States are competent to adopt such sanctions as appear to them to be appropriate ... When making use of that competence they are, however, obliged to respect Community law and its general principles, and must consequently comply with the principle of proportionality. As the Court has repeatedly held, the administrative measures or penalties must not go beyond what is strictly necessary for the objectives pursued ...’ (paragraphs 19 and 20). In so far as the rules of Community law do not prescribe penalties, the Member States are thus empowered to lay down penalties for infringement of those rules. Such penalties must be compatible with the principle of proportionality, that is, the penalty must be necessary to ensure the observance of the rules of Community law and must not exceed what is essential. The infringement of the relevant Community provision must in addition be penalized according to the same rules as apply under national law for infringements of a similar nature and importance.
3.

Since the Commission was not informed of any transposition by the Member State, it initiated the procedure for failure to fulfil obligations by a letter of formal notice dated 14 October 1992. There was no reply to the letter. The Commission thereupon delivered a reasoned opinion on 11 May 1993. By a letter of 15 July 1993 from the Permanent Representation of Ireland to the European Communities, the Irish Government informed the Commission that a transposition procedure was in progress. Since the Commission was not informed of the completion of the whole procedure, it brought an action before the Court on 10 June 1994. The Irish Government stated in its defence that by Statutory Instrument No 289 of 1994, signed by the Irish Minister for Agriculture on 21 September 1994, the directive had been transposed, with the exception of provisions relating to fish and fishery products.
((Social security for migrant workers – Family benefits – Article 74 of Regulation (EEC) No 1408/71))
5.

As far as these questions are concerned, it should first be noted that the aforementioned transactions carried out on a ferry are covered by the provisions of the Sixth Directive. There is a precedent to this effect. In an earlier case, the Court has already had occasion to deal with questions raised by the application of the Sixth Directive to activities carried out on board a ship plying between two Member States. ( 3 ) Consequently, as the Commission and all the Member States which intervened in the proceedings — the Federal Republic of Germany, the Kingdom of the Netherlands and the Italian Republic — have emphasized in their observations, the second and third questions are to no purpose, since they are based on the idea that such activities do not fall within the scope of the relevant Community provisions. It follows that those questions do not need to be answered. As far as the first question is concerned, it appears from the grounds of the order for reference that the proceedings essentially raise questions relating to the interpretation of Articles 5, 6, 8 and 9 of the directive. More specifically, the first, main question is how the activity in question is to be classed. The second question is that of the determination of the place where the taxable transaction in question is to be deemed to have been carried out, that is to say, the place of supply of the food and drink.
11.

The seventh recital in the preamble refers to mutual recognition of conformity tests on mass-produced terminal equipment as an initial stage on the way towards that objective. In this connection, the approach was to be founded upon the definition of common technical specifications based on international standards and specifications and on the harmonization of general technical requirements. ( 4 ) In other words, that first stage was concerned with the harmonization of standards. Lists of laboratories and of authorities competent to issue type approval in the individual Member States were to be drawn up. The laboratories have the task of verifying that the relevant equipment conforms with the common standards and, if so, of drawing up a certificate of conformity containing all the measurement data. The aim of Directive 86/361 is mutual recognition of the results of such tests in the individual Member States with the result that they will not have to be carried out again for the purpose of type approval in other Member States. ( 5 )
42.

In the event that the Court should not follow this view and also regard an economic activity on the part of the undertaking as a precondition in order for the directive to apply, I would observe as follows with regard to that further precondition. Even if the view taken by the United Kingdom and the German Government is followed and an economic activity is regarded as being a basic precondition for the applicability of the directive, the outcome in this case remains the same, since the municipality is carrying out economic activities in accordance with this precondition. As I have already mentioned, at the hearing, counsel for the applicant in the main proceedings gave very many examples of economic activities carried out by the municipality. Neither the German Government nor the United Kingdom contests that the municipality carries out those activities. Accordingly, the municipality takes part in economic activities. The concept of economic activities in the Community is mentioned in Article 2 of the EC Treaty, which defines the aims of the Community. That provision lays down that one of the tasks of the Community is to promote, by establishing a common market, a harmonious and balanced development of economic activities throughout the Community. As the Court has consistently held, the term ‘economic activity’ is to be broadly construed in this context. Thus, it was held as long ago as the judgment in Dona ( 18 ) that ‘gainful employment or remunerated service’ constitutes an economic activity within the meaning of Article 2 of the EEC Treaty. In order for an activity to be regarded as an economic activity, it is accordingly sufficient for it to be carried out for remuneration. It appears from the judgment in Lawrie-Blum that neither the sector in which the activity is carried out nor the relevant legal regime to which the activity is subject is determinative. Instead, the Court considers that, in order for Article 48 of the EC Treaty — the provision with which Lawrie-Blum was concerned — to apply, it is necessary only for the activity in question to be in the nature of remunerated work. This is true irrespective of the sphere in which the work is carried out. ( 19 ) In another judgment on Article 48, the Court held that the nature of the legal relationship between the employee and the employer, that is to say, whether it is a question of a particular status under public law or a private-law agreement, is also not determinative. ( 20 )
4.

The defendant does not dispute that the directive in question was not transposed into national law within the prescribed period. It nevertheless seeks for the application to be dismissed. It submits in this connection that in November 1994 a committee was set up with a view to transposition of the directive, with the task of preparing the necessary legislation. A ministry has also already produced and transmitted to the said committee a draft of a presidential decree by which the provisions of the directive are to be transposed into national law. Moreover, that ministry already on 27 August 1993 brought the text of the directive to the attention of all institutions in the public sector in a circular. That circular contained instructions on the provisional application of the directive.
3.

Article 7(4) of the Eighth Council Directive 79/1072/EEC (the ‘Eighth Directive’) ( 1 ) provides as follows: ‘Decisions concerning applications for refund shall be announced within six months of the date when the applications, accompanied by all the necessary documents required under this Directive for examination of the application, are submitted to the competent authority referred to in paragraph 3. Refunds shall be made before the end of the abovementioned period, at the applicant's request, in either the Member State of refund or the State in which he is established. In the latter case, the bank charges for the transfer shall be payable by the applicant. The grounds for refusal of an application shall be stated. Appeals against such refusals may be made to the competent authorities in the Member State concerned, subject to the same conditions as to form and time limits as those governing claims for refunds made by taxable persons established in the same State.’
9.

Both the letter of formal notice and the reasoned opinion of the Commission are in fact ambiguous in that they refer only to failure to adopt the measures required in relation to Article 5 of the Italian Law and not to any general failure to adopt the laws, regulations and administrative procedures required. This does not, however, constitute an unlawful extension of the subject-matter of the dispute. On the contrary, the two heads of claim set out in the Commission's applications relate to the same issue in that the Italian Republic is in fact charged with the same breach of obligations, allegedly committed through maintenance of Article 5 of the Italian Law, on the one hand, and failure to adopt the laws, regulations and administrative provisions necessary to abolish that provision, on the other. Since the claim concerning the maintenance of Article 5 of the Italian Law is the more specific, that claim alone may be examined without any cause to dismiss the remainder of the application.
8.

In my opinion, however, the interpretation of the relevant subheading of the CT must satisfy criteria of reasonableness and consistency with the overall system of rules to which that provision belongs. For that reason I take the view that a mere lexical comparison between the German version and the French and English versions (as well as the other language versions) of the CT does not in itself enable the person interpreting the provision to identify with sufficient precision the ratio underlying the Community legislature's choice. The matter at issue in the present case is to classify a product which it is clearly not appropriate to classify immediately as either whole peppers or as pepper powder or flour. The argument put forward by the Commission and the defendant, to the effect that the expression ‘sonst zerkleinert’ indicates a result similar to that obtained from grinding, albeit achieved through a different process, strikes me as unconvincing. It is an inflexible solution and does not make it possible to provide appropriate tariff treatment for a product which, in all probability, does not correspond, in its characteristics and functions, to that to which, according to this view, it is to be treated as analogous. Furthermore, the view taken by the defendant and the Commission would lead to the conclusion that the Community legislature has in fact used a meaningless pleonasm in drawing up the heading in question. If the product had to be in the form of powder or flour in order to be classified under subheading 20 90, the positioning of the expression ‘sonst zerkleinert’ alongside the term ‘gemahlen’ would be entirely superfluous.
Opinion of Mr Advocate General La Pergola delivered on 5 May 1998. - Commission of the European Communities v Kingdom of Belgium. - Failure of a Member State to fulfil its obligations - Failure to transpose Directives 90/220/EEC and 94/51/EC. - Case C-343/97.



European Court reports 1998 Page I-04291



Opinion of the Advocate-General

1 By application lodged on 1 October 1997, the Commission requested the Court to declare that, by failing to adopt within the prescribed period the measures necessary to comply with Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms (1) and Commission Directive 94/51/EC of 7 November 1994 adapting to technical progress Council Directive 90/219/EEC on the contained use of genetically modified micro-organisms, (2) the Kingdom of Belgium has failed to fulfil its obligations.

2 The defendant Member State does not deny the infringement alleged against it, but simply observes that the measures intended to bring national law into line with those directives are in the process of being adopted. According to the settled case-law of the Court, however, this cannot justify a failure to fulfil obligations. (3)

3 I therefore propose that the Court uphold the application and order the defendant State to pay the costs.

(1) - OJ 1990 L 117, p. 15.

(2) - OJ 1994 L 297, p. 29.

(3) - See, among others, Case C-147/94 Commission v Spain [1995] ECR I-1015.