C-52/90
ECLI:EU:C:1992:62
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COMMISSION v DENMARK
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 11 February 1992 *
Mr President, 'Whereas the freedom of movement of Members of the Court, Community residents within the Community is hampered by the taxation arrangements applied to the temporary importation of certain means of transport for private or A — Facts of the case business use;
1. In the present proceedings for Whereas the elimination of the obstacles infringement of the EEC Treaty, which are resulting from these taxation arrangements closely related to the Ryborg 1 case, the is particularly necessary if an economic Commission accuses Denmark of failing to market having features similar to those of a apply Council Directive 83/182/EEC on tax domestic market is to be established;'. exemptions within the Community for certain means of transport temporarily imported into one Member State from another, 2 and in particular Article 9(3) thereof. Accordingly, I propose to clarify 4. Accordingly, Articles 3 to 6 of the the conditions governing the admissibility of directive contain — as regards turnover tax, applications in proceedings under Article excise duties and any other consumption 169 of the EEC Treaty. tax, together with the taxes listed in the Annex (in Denmark, the Vægtafgift af motorkøretøjer) — provisions on the tax-free importation of certain means of 2. I shall confine myself below to examining transport, in particular private vehicles. In briefly the framework created by the addition, Articles 7, 8 and 9(3) lay down directive and the connection with the rules for determining 'normal residence' and Ryborg case, before defining the individual thus provide, in cases of uncertainty, the points to be considered as the possible criterion for settling the question as to subject-matter of the application or the which of two potentially eligible countries is pre-litigation procedure; for further details empowered to charge the tax reference should be made to the Report for and — conversely — which country is the the Hearing. country of 'temporary importation'.
3. The aims of the directive are outlined in the first two recitals of the preamble, as 5. The interpretation of one of those follows: provisions, namely Article 7, was the central issue in the Ryborg case. There, the Danish * Original language: German. Højesteret was dealing with a case in which 1 — Judgment in Case C-297/89 Rigsadvokaten v Ryborg the defendant before the national courts was [1991] ECR I-1943. accused of contravening the Danish tax 2 — Council Directive of 28 March 1983; OJ 1983 L 105, p. 59. provisions. At first and second instance he
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had been ordered, in accordance with the 6. The Højesteret also asked about the charges against him, to pay value added tax interpretation and direct effect of Article on the importation of his German-registered 10(2) of the directive, worded as follows: motor-car, together with a fine for its illegal importation. The view was taken that although Mr Ryborg, then a Danish national, had owned an apartment in 'Where the practical application of this Germany and had been working there since Directive gives rise to difficulties, the 1973, he had nonetheless been resident in competent authorities of the Member States Denmark since November 1982. The basis concerned shall take the necessary decisions for that view was that on his own admission by mutual agreement, particularly in the he had, from July or August 1982 until light of the Conventions and Community confiscation of his car on 17 January 1984, Directives on mutual assistance.' spent almost every night and most weekends with a girl-friend in Denmark, always using his own car for the journey to and from that country; from November 1982 this was a new car which he had bought at that time. 7. The Court ruled as follows: On the defendant's appeal the Højesteret requested the Court of Justice under Article 177 to interpret Article 7(1) of the directive in the context of the facts before it. The 'Article 10(2) of Directive 83/182 does not Court of Justice gave the following ruling: require the Member States to cooperate in each individual case in which the application of that directive raises difficulties.
'Normal residence, within the meaning of Article 10(2) of Directive 83/182 cannot be Article 7(1) of Council Directive relied upon by individuals before a national 83/182/EEC of 28 March 1983 on tax court.' exemptions within the Community for certain means of transport temporarily imported into one Member State from another, corresponds to the permanent 8. The decisions given in this case by the centre of interests of the person concerned, judicial instances of the defendant State, which must be determined with the aid of which had been delivered before the all the criteria set out in that provision and preliminary reference by the Højesteret, all the relevant facts. In that regard, the prompted Mr Ryborg to complain both to mere fact that a national of one Member the European Parliament and to the State (B) moved to another Member State Commission, as may be seen from a memo (A), in which he found a job and a randum of the Commission of 11 July 1985 dwelling, but as from a certain date and for to the defendant Member State (Annex 2 to more than one year spent practically every the application). In the memorandum the night and every weekend with a girl-friend Commission pointed out that Mr Ryborg's in Member State B, whilst retaining his job journeys in no way changed his legal and his dwelling in Member State A, is position under the Community provisions insufficient to support the conclusion that on residence. The Commission cited Article he transferred his normal residence to 9(3) of the directive, which provides inter Member State B.' alia that:
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'The Kingdom of Denmark is authorized to required under Article 169 of the EEC maintain the rules applying to that country Treaty (the notice calling for observations, in connection with normal residence and the reasoned opinion) and culminated according to which any person, including a in the present application. In the notice student, in respect of the case referred to in requesting the observations of the Danish Article 5(1)(b), is regarded as having his Government the Commission alludes to a normal residence in Denmark if he lives second case (besides Ryborg), namely there for a year or 365 days in a period of Hansen. The details of that case are later set 24 months. out in the reasoned opinion: Mr Hansen, a German national, travelled to Denmark at weekends and occasionally during the week as well, in order to visit his son living there with his mother to whom Mr Hansen was However, to avoid double taxation: not married; on those facts Mr Hansen was convicted (apparently for non-payment of tax).
— where, as a result of the application of these rules, a person is considered to have two residences, the normal residence of that person is situated where his spouse and children live, 11. In both the notice and the reasoned opinion the Commission argues that Article 9(3) is to be construed restrictively, with the result that, if a person lives in Denmark for — in similar cases, the Kingdom of less than a year or less than 365 days in any Denmark shall consult with the other 24-month period, he can never be assumed Member States concerned to decide to have his place of residence in Denmark. which of the two residences should be Both memoranda recited that the Hansen used for the purposes of taxation.' and Ryborg cases revealed that the Danish authorities supposed — wrongly — that persons having lived in Denmark less than a year or 365 days in any 24-month period had their normal residence there if they 9. The Commission maintained that there were visiting a 'girl-friend' or child. 3 was no question of Mr Ryborg's having lived in Denmark for one year, or for 365 days in any 24-month period, since his journeys to that country were merely casual. Moreover, the term 'spouse' as used in the first indent of the second paragraph of 12. In both memoranda the Commission Article 9(3) was to be construed restric- also observed that the term 'spouse' referred tively, so that the indent was not applicable only to a person lawfully married to the since Mr Ryborg was not married to the person whose place of residence was in person he visited. dispute.
3 — In its application to the Court the Commission alleged dial, as it appears in the notice under Article 169, the phrase reads less than a year ... on account of a tran scription error; it should properly read more than a 10. That memorandum marked the year .... Leaving aside the Commission's inability to beginning of an exchange of corre amend the content of the notice at the time of bringing the action, I find that the reformulated phrase docs not make spondence which included the notices sense.
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13. From the account given above the of the directive are first reviewed (heading Commission infers that Article 9(3) of the A) and the correspondence prior to the directive, which alone is applicable to action is summarized (B); lastly, 'for the Denmark, has been disregarded, whilst sake of completeness' reference is made to Article 7 has no bearing on Denmark. the Ryborg case, still pending at the time (C). The order for reference in that case reveals, according to the Commission, the importance of the taxation issues raised by the present case and the aim of the directive, namely freedom of movement for 14. Lastly, referring to the Abbink the inhabitants of the Community. 4 judgment, the Commission relies in the reasoned opinion on the prohibition of double taxation when a vehicle is used temporarily in a Member State other than the State of registration.
17. The second part of the application to the Court, which the Commission has 15. In its reply to the reasoned opinion the entitled 'Legal Position', begins with a Danish Government submits that the legis section on the 'Prevention of Double lation applicable to Denmark as regards Taxation' in which the Commission, with 'normal residence' includes the general rule reference to the second paragraph of Article under Article 7 as well as Article 9(3). In 9(3) of the directive and to the judgments in addition to its submissions relating to the Profant, 5 Ledoux 6 and Abbink, 7 analyses Commission's assertions in the reasoned various aspects of existing safeguards opinion, it makes an observation on the against double taxation on the temporary second indent of the second paragraph of importation of means of transport registered Article 9(3) of the directive. It submits that in other Member States. In the second Denmark had discussed matters with the section, on 'Cooperation with the Tax Federal Republic of Germany in 1986 and Authorities of Other Member States', the 1987, under the consultation procedure set Commission then gives its views on the out in that provision, and that the result of interpretation of Article 10(2) and Article those discussions was recorded in an 9(3) (meaning the second indent of the exchange of letters. This exchange allegedly second paragraph of that provision), shows that the German authorities are in concluding that the Member States are full agreement with the way in which the required by those provisions to cooperate in directive (and in particular Article 9 thereof) order to prevent the duplication of taxes on should be implemented in Danish territory. motor-driven vehicles in cases where two States claim to register one and the same vehicle. At the end of that section it is stated that, on the evidence of its replies (to the memorandum of 11 July 1985, to the notice requesting observations and to the reasoned 16. The Commission's application falls into two parts. In the first part ('Facts and 5 — Judgment in Case 249/84 Ministère Public v Profant Procedure') the aims and relevant provisions [1985] ECR 3237. 6 — Judgment in Case 127/86 Ministère Public and Belgian 4 — Judgment in Case 134/83, criminal proceedings against Ministry of Finance v Ledoux [1988] ECR 3741. Abbink [1984] ECR 4097. 7 — Cited above.
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opinion), Denmark never conceded that the B — Opinion Danish authorities are obliged, when settling complaints about the practical application of the directive, to consult the other Member State concerned about ways of avoiding double taxation.
20. I — Before examining the admissibility of the application I wish to make it clear that, in its unambiguous wording, the 18. In concluding its application the applicant's claim consists solely of accu applicant claims that the Court should: sations that the directive was infringed. Although in its application the Commission, citing the Abbink judgment, discusses the duty of Member States under Article 95 of (i) declare that, by failing to apply the the EEC Treaty — expounded in the Schul* provisions of Council Directive judgment — to take into account the 83/182/EEC of 28 March 1983 on tax residual amount of the value-added tax paid exemptions within the Community for in the Member State of exportation and still certain means of transport temporarily contained in the value of the goods at the imported into one Member State from time of importation, that is not the purpose another, and in particular Article 9(3) of the application. Nor does the application thereof, the Kingdom of Denmark has cover, in connection with the taxation of failed to fulfil its obligations under the motor vehicles registered in other Member EEC Treaty; States, those cases which the Commission considers to lie outside the scope of the directive because they occurred before it became effective. Although the Commission (ii) order the Kingdom of Denmark to pay the costs. alludes to such cases under the heading 'Prevention of Double Taxation', citing the Profant and Ledonx judgments, these are to be viewed merely as an illustration of the 19. The defendant Member State considers problems involved. In short, the appraisal of the application inadmissible on a number of admissibility cannot extend to double- grounds, and further maintains that it is taxation problems, which are not the subject unfounded. It contends that the Court of the directive to which the application should: refers.
(i) dismiss the application as inadmissible;
21. II — The first point to be established as part of the appraisal of admissibility within (ii) in the alternative, dismiss the application as unfounded and set aside 8 — Judgment in Case 15/81 Schul v Inspecteur der Invoer rechten en Accijnzen [1982] ECR 1409; judgment in Case the accusations made against Denmark; 47/84 Staatssecretaris van Financien v Schul [1985] ECR 491; see also the judgments in Case 39/85 Bcrgeres- Becque Chef dc Service Interrégional des Douanes [1986] ECR 259, Case 299/86, criminalprocecdings against DrcxJ Ų988] ECR 1213, Case 120/88 Commission v Italy [1991] LCR 1-621, Casc 119/89 Commission v Spain, and Case (iii) order the Commission to pay the costs. 159/89 Commission v Greece.
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those limited terms of reference is whether accurate delineation of the dispute that the the Commission complied with Article application shall set out the complaints on 38(1)(c) of the Rules of Procedure, under which the Court is called upon to rule. 9 which an application to the Court must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. 24. (b) As far as the pleas in law are concerned, such delineation is even more necessary. In stating the form of order it seeks, the Commission totally omits — contrary, I would say, to its usual 22. 1. I intend once again to take the form practice — even the merest outline of the of order sought by the Commission as the actual facts (that is, the conduct) which starting point for inquiring whether the 10 allegedly infringed the Treaty. The subject-matter of the proceedings and the formulation of the order sought remains pleas in law on which the application is wholly abstract: Denmark is to be declared based are set out clearly enough, to have infringed the Treaty by not applying or — conversely — whether the pleas in the the directive. application should have supplied further information in order to satisfy Article 38(1)(c).
25. 2. I now turn to consider what the Commission's application contains in the way of essential particulars. 23. (a) Turning first to the subject-matter of the proceedings, I note that, according to the form of order it has formulated, the Commission accuses the defendant Member 26. (a) As regards the allegation of State of failing to apply the provisions of infringement of rules of law, the application, Directive 82/182, and in particular Article apart from mentioning under the heading 9(3) thereof. The rule of law whose 'Prevention of Double Taxation' a few rules infringement is alleged is thus identified which do not appear in the declaration merely by the citing of the directive in 11 which the Court is requested to make, question, albeit with particular reference to refers only to Articles 9(3) and 10(2) of the one of its provisions. Examination of that directive. That reference, however, does not directive will show that it covers a whole meet the aforesaid requirements under range of situations involving widely Article 38(1)(c) of the Rules of Procedure. different importations and widely different problems in determining 'normal residence'. Furthermore, Article 10 imposes certain ancillary duties on Member States, quite apart from the obligation to implement the 27. (aa) In respect, first, of Article 9(3), the directive. It follows that the subject-matter Commission appears to infer from it two of the proceedings was not adequately different rules, whose infringement might be defined in the form of order sought by the regarded as the subject of the application. In applicant. The Commission should therefore have included in its application submissions 9 — Judgment in Case C-347/88 Commission v Greece [1990] indicating which of the rules of law created ECR I-4747, at paragraph 29. 10 — See judgment cited in the previous footnote, at paragraph by the directive the defendant Member State 28. had infringed. It is indispensable for an 11 — See above, at paragraph 20.
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describing the pre-litigation procedure the 29. Thus Article 9(3) is now regarded as the Commission seems to suggest that in the basis for a duty of cooperation on the part cases before it Article 9(3) affords no basis of the Member States. for assuming that the motorists concerned 12 had their normal residence in Denmark, and that the Danish practice of refusing a tax exemption on the temporary importation of a motor vehicle contravenes the 30. Nowhere in the application is it clearly 13 provisions of the directive. At this point, stated that Denmark has infringed either (or therefore, the Commission appears to be both) of the above rules of law. Only with arguing that Denmark has misconstrued the reference to the duty of cooperation does term 'normal residence' as used in the the Commission make the abovementioned directive (and was thus in breach of its duty observation that Denmark 'never conceded' to allow a tax exemption under the directive the existence of that duty. However, that whenever, in the absence of a normal does not necessarily mean that the residence in Denmark, the importation is Commission considers that duty (or the rule merely temporary). under which it arises) to have been infringed.
31. Nor can the Commission's intentions be deduced from the bald reference to those two arguments. The provision whose 28. In the last part of the application infringement is the subject of its accusation (headed 'Cooperation with the Tax Auth in both cases — Article 9(3) — is so orities of the other Member States') the constructed that the part from which the Commission draws from Article 9(3) — now Commission infers the duty of read in conjunction with Article 10(2) — the cooperation — the second indent of the following conclusion: second paragraph — can operate only if the other provisions of that paragraph afford a basis for regarding Denmark as the country of 'normal residence'. In particular, the second paragraph can come into play only when the conditions under the first paragraph of Article 9(3) are satisfied, since it is only in those circumstances that Article 9 can lead to double taxation. The 'The provisions of Article 9(3) and 10(2) of application does not disclose whether or not Council Directive 83/182 must therefore the Commission assumes that these necessarily be construed as obliging conditions were met in the cases brought Member States to cooperate in the before it. In the pre-litigation procedure, avoidance of any duplication of taxes on summarized in the first part of the motor vehicles in cases where two States application, the Commission had argued at demand the registration of the same one point that Denmark applied the first vehicle.' paragraph even though the conditions 1 governing its operation were not fulfilled, 4 12 — Sec paragraph I. B.3 of the application (p. 7). 13 — Sec paragraph I. B.5 of the application (p. 8). 14 — Sec paragraph 11 above.
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and yet objected elsewhere that Denmark hand, conveys the impression that it can had misconstrued the term 'spouse', only have been due to an infringement thereby appearing to suggest that it did (misapplication) of Article 9(3) that consider the conditions of the first Denmark found that the person concerned paragraph to have been fulfilled. in the importation at issue here had his normal residence in Denmark (so that it could not grant a tax exemption). 32. Consequently, apart from the uncer tainty as to which of the provisions regarding 'normal residence' has allegedly been contravened, the possibility cannot be 36. It follows that in its application the ruled out that the Commission is Commission has not explicitly or conclu complaining about a breach of legal sively stated which of the rules of law provisions which it is impossible to allegedly contained in Article 9(3) of the contravene simultaneously in any given set directive, and hence which obligations, the of circumstances. 16 defendant Member State is supposed to have infringed.
33. In that connection I believe that two further comments are called for. 37. (bb) Those considerations also demon strate that the plea of infringement of the obligation under Article 10(2) of the 34. First, as far as the infringement of the directive is not sufficiently clear, because duty of cooperation is concerned, it may be that provision is not discussed separately but seen from the above quotation from the is cited together with Article 9(3) as the application that the Commission is basis for the obligation of Member States to concerned with the alleged duty of cooperate. cooperation in individual cases, rather than with any obligation to establish universal procedures for cooperation. That reading of the application is unequivocally confirmed 38. (b) I am also of the opinion that the by the submissions made in the statement of Commission has not based its application on reply. adequate pleas in law for the purpose of Article 38(1)(c) of the Rules of Procedure. Although Article 38(1)(c) requires the 35. Secondly, it is only in that reply that the Commission, as applicant, to present specific Commission indicates that it no longer evidence in support of its accusation, that stands by the view expressed in the requirement was not met. pre-litigation procedure, that Article 7 of 17 the directive does not apply to Denmark. The application to the Court, on the other 39. The only specific facts put forward in 15 — See paragraph 12 above. the application — as they had been 16 — The Commission's application firmly precludes the expla throughout the pre-litigation nation that it wished to present two fundamentally dissimilar situations as the subject of the proceedings. procedure — are those of the Hansen and Although it refers to actual events (the Ryborg and Ryborg cases. However, as is clear from Hansen cases), there is no evidence that the provisions or obligations infringed in the first case are different from paragraph I. B.5 of the application, those those infringed in the second; see also below, paragraph 38 et seq. cases do not form the subject-matter of the 17 — See paragraph 13 above. proceedings. That paragraph states that the
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complaints cited by the Commission had 19 application. In the light of those principles merely served to demonstrate the extent to it is still less admissible for the which the Danish practice of refusing tax Commission — as here — not even to refer exemption in the case of motor vehicles expressly to the documents of the temporarily imported from another Member pre-litigation procedure and thus leave the State infringed the directive. The Court and the defendant Member State in Commission does not say wherein the doubt as to the real basis for the action. In contentious practice lies, otherwise than in the second place, this deficiency attaches those two cases. not only to the application to the Court but also to the reasoned opinion — as I shall explain — with the result that even the inclusion of the documents of the pre-litigation procedure is to no avail.
40. The omission of specific evidence is not remedied by the Commission's special reference, under heading I. C. of its 42. III—Lastly, the application is inad application, to Case C-297/89, since the missible because the pre-litigation procedure latter is mentioned merely 'for the sake of was not correctly conducted. completeness' and as a demonstration of the importance not only of the tax issues raised by the present case but also of the aims pursued by the directive.
43. 1. The point made above, that the Commission does not adduce specific facts to substantiate its criticisms, applies to the reasoned opinion as well as to the application. The statement that the Ryborg 41. The Commission's counter-argument to and Hansen cases are intended merely to the thesis that the evidence adduced is insuf illustrate the particular problem of interpre ficient, namely that the application is to be tation is to be found under paragraph 5 A read in conjunction with the documents of the reasoned opinion — prefaced by the further remark that the criticisms raised by produced in the pre-litigation procedure the Commission do not mean that it takes (the notice requesting observations and the issue with the rulings given in particular reasoned opinion) does not hold water. In cases. the first place, as the Court of Justice has held, in proceedings under Article 169 the elements of fact and law supporting the Commission's complaints must be included — at least in summary form — in the application itself, a reference to the 44. According to established case-law it is documents used in the pre-litigation an essential requirement of a proper 8 procedure is insufficient. 1 At most, such pre-litigation procedure under Article 169 references can be taken into account when of the EEC Treaty that the Member State they are designed to clarify the scope of the individual points of criticism raised in the 19 — Opinion of Mr Advocate General Tesauro in Case C-347/88 [1990] ECR I-4767, at the end of paragraph 8; Opinion of Mr Advocate General Darnion in Case 18 — Judgment in Case C-347/88 Commission v Greece [1990] C-43/90 Commission v Germany [1992] ECR I-1909, at ECR I-4747, at paragraph 16 et seq. paragraph 4.
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shall have the opportunity to submit its Although the Commission in its application observations. Even if the Member State does relies on Article 10(2) of the directive as not consider it necessary to avail itself of evidence of that duty, it must be noted that that opportunity, it constitutes an essential this provision was not mentioned at any 20 stage of the pre-litigation procedure. As far guarantee demanded by the Treaty. The Court of Justice inferred from that as the second indent of the second 21 paragraph of Article 9(3) is concerned, principle that the reasoned opinion although mentioned in the notice requesting observations and in the reasoned opinion it appears merely as part of Article 9(3), quoted in its entirety. The conclusions drawn from it by the Commission, however, 'must contain a coherent and detailed are merely that the first paragraph was statement of the reasons which led the misapplied and that the term 'spouse' within Commission to conclude that the State in the meaning of the first indent of the second question has failed to fulfil one of its obli paragraph was misconstrued. There is no gations under the Treaty". indication that the Commission also intended to accuse the defendant of infringement of the duty of cooperation which it infers from the second indent of the second paragraph.
45. Those requirements are not satisfied if the Commission does not specify the acts or omissions allegedly constituting the infringement. The Member State is then expected to speculate as to the actual grounds for the Commission's criticisms, so that its right to express its view is thereby 47. In keeping with the purpose of the nullified and the constitutional aims of the pre-litigation procedure, as defined above, pre-litigation procedure are disregarded. the Court has consistently assumed that the notice requesting observations is designed to 23 delimit the subject-matter of the dispute. The reasoned opinion and the application to the Court must be founded on the same 24 submissions. In the case of the accusation 46. 2. The conduct of the pre-litigation under discussion those conditions are not procedure is to be treated as improper on a met. Nor has the Commission provided any further score, concerning the criticism about other memorandum addressed to the Danish the duty of cooperation. Neither in the Government containing the necessary infor notice requesting observations nor in the mation, which might possibly have allowed reasoned opinion did the Commission raise, an exception to be made to the above 22 or even hint at, any such criticism. requirements for notices and reasoned 25 opinions under Article 169. 20 — See for example the judgment in Case 31/69 Commission v Italy [1970] ECR 25, at paragraph 13. 23 — Judgment in Case 211/81 Commission v Denmark [1982] 21 — Judgment in Case 274/83 Commission v Italy [1985] ECR 4547, at paragraph 8; judgment in Case 229/87 ECR 1077, at paragraph 21 ; judgment in Case 347/88 Commission v Greece [1988] ECR 6347, at paragraph 12. Commission v Greece [1990] ECR 1-4747 at paragraph 24; see also the earlier judgment in Case 325/82 24 — Judgment in Case 211/81, cited above (previous footnote), Commission v Germany [1984] ECR 777 at paragraph 8. at paragraph 14; judgment in Case 298/86 Commission v Belgium [1988] ECR 4343, at paragraph 10. 22 — In the context of the less rigorous requirements for the notice under Article 169, see for example the judgment in 25 — See the judgment in Case 211/81, cited above, at Case C-274/83 Commission v Italy [1985] ECR 1077. paragraph 11.
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48. 3. The defects of the pre-litigation on the duty of consultation under Article procedure, found to exist on both of the 9(3) (second indent of the second above scores, are not cured by the fact of paragraph) of the directive. Such a reply the Member State's having stated, in its serves neither to enlarge the scope of the reply to the reasoned opinion, its position pre-litigation procedure nor to eliminate its 26 regarding the Ryborg and Hansen cases and defects.
C — Conclusion
49. It is clear from all those considerations that the present application must be regarded as inadmissible on a whole range of grounds. In view of the unclear definition of the subject-matter of the proceedings and of the applicant's pleas I find it impracticable, and in any case — given the numerous serious defects involved — inappropriate to examine in the alternative the substance of the application. In my opinion the Court should:
(1) dismiss the application as inadmissible;
(2) order the Commission to pay the costs under Article 69 of the Rules of Procedure.
26 — See judgment in Case 51/83 Commission v Italy [1984] ECR 2793, at paragraph 6 et seq.; judgment in Case 217/88 Commission v Germany [1990] ECR I-2879, at paragraph 11, read in conjunction with section 1.3 of the Report for the Hearing (p. 2884, right-hand column, second paragraph).
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