Act 368 of 1978

Act 368 of 1978 DEFAULT

Document CC

1 This case, referred by the Kammarrätt (Administrative Court of Appeal), Sundsvall, Sweden, concerns the interpretation of certain provisions of Regulation No /71 (`the Regulation&#;) (1) in the context of a recipient of Swedish parental benefit who claims to be entitled under the Regulation to continue to receive that benefit after moving to Finland. The Court has been asked in particular for guidance as to whether the applicant is within the personal scope of the Regulation and whether a provision in the Swedish legislation requiring recipients of parental benefit to be resident in Sweden is compatible with the Regulation.

Relevant Community provisions

2 Article 1, in so far as is relevant to the present case, provides:

`For the purpose of this Regulation:

(a) employed person and self-employed person mean respectively:

(ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population, if such person:

- can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed &#;.

3 Article 2 is headed `Persons covered&#;. Article 2(1) provides:

`This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.&#;

4 Article 4 is headed `Matters covered&#;. Article 4(1) provides, in so far as is relevant:

`1. This Regulation shall apply to all legislation covering the following branches of social security:

(a) sickness and maternity benefits;

(g) unemployment benefits; &#;

5 Article 13, headed `General rules&#;, is the first provision in Title II of Regulation No /71, headed `Determination of the legislation applicable&#;.

6 Article 13(1) provides:

`Subject to Article 14c, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.&#;

7 Article 14c contains special rules applicable to persons who are simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State, which are not relevant to the present case.

8 Article 13(2) lays down a series of rules for determining which legislation applies in particular circumstances. The rules are expressed to be subject to Articles 14 to 17, constituting the remainder of Title II, which contain various special rules none of which is applicable in this case.

9 Article 13(2)(a) provides:

`a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State&#;.

10 Articles 13(2)(b) to (e) concern respectively self-employed persons, persons employed on vessels flying the flag of a Member State, civil servants and persons called up for service in the armed forces or for civilian service.

11 Article 13(2)(f), inserted into Regulation No /71 with effect from 29 July by Regulation No /91, (2) provides that:

`a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone&#;.

12 Article 10b of Regulation No /72 laying down the procedure for implementing Regulation No /71, (3) also inserted by Regulation No /91, is headed `Formalities pursuant to Article 13(2)(f) of the Regulation&#; and provides:

`The date and conditions on which the legislation of a Member State ceases to be applicable to a person referred to in Article 13(2)(f) of the Regulation shall be determined in accordance with that legislation. The institution designated by the competent authority of the Member State whose legislation becomes applicable to this person shall apply to the institution designated by the competent authority of the former Member State with a request to specify this date.&#;

13 Article 22 of Regulation No /71, which applies to sickness and maternity benefits, provides, in so far as is relevant:

`1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:

(b) who, having become entitled to benefits chargeable to the competent institution, is authorised by that institution to return to the territory of the Member State where he resides, or to transfer his residence to the territory of another Member State;

shall be entitled:

(ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers.

2. The authorisation required under paragraph 1(b) may be refused only if it is established that movement of the person concerned would be prejudicial to his state of health or the receipt of medical treatment. &#;

Article 18 concerns the aggregation of periods of insurance, employment or residence completed under the legislation of another Member State, and is not relevant to the present case.

14 Article 94 of the Regulation, so far as is relevant, provides:

`1. No right shall be acquired under this Regulation in respect of a period prior to the date of its application in the territory of the Member State concerned

2. All periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before the date of its application in the territory of that Member State shall be taken into consideration for the determination of rights acquired under the provisions of this Regulation.

3. Subject to the provisions of paragraph 1, a right shall be acquired under this Regulation even though it relates to a contingency which materialised prior to the date of its application in the territory of the Member State concerned &#;

15 Both Sweden and Finland acceded to the European Communities on 1 January Regulation No /71 and Regulation No /72 became applicable in both those countries, however, on 1 January , by virtue of the Agreement on the European Economic Area. (4) Thus at the time of the facts giving rise to the main proceedings, the Regulation was not in force as a Community instrument. Neither the national court nor any of the parties who have submitted observations to the Court has, however, raised that issue. In those circumstances, I assume that the national court considers that a preliminary ruling by the Court is necessary to enable it to give judgment on the basis that the applicant&#;s entitlement to Swedish parental benefit, if recognised, could continue beyond 1 January so that the matter falls within the jurisdiction of this Court.

The national legislation

16 The Law on social insurance (5) (`the Law&#;) provides that Swedish nationals and residents shall be insured by law. An insured person who leaves Sweden continues to be regarded as resident in Sweden if the stay abroad is intended to be for a maximum period of one year. (6)

17 The Law provides for registration with the social insurance office of all insured persons of 16 years or more, provided they are resident in Sweden. (7) Registration is governed by provisions published by the Riksförsäkringsverket (National Social Insurance Board) (8) which provide, inter alia, as follows.

18 A person is regarded as resident in Sweden if he has his actual place of residence there or if he goes to Sweden with the intention of either permanently residing there or staying there for more than one year to work or study. (9) A person who has a right to benefits under Swedish legislation on the basis of Regulation No /71 is regarded as resident in Sweden for so long as he has a right to such benefits even if he does not fulfil those conditions for residence. If an insured person goes abroad intending to stay for more than one year, he shall, if he moves to a Nordic country, be removed from the social insurance register with effect from the day on which he is removed from the national population register (Folkbokföringen) in Sweden. (10) However, where a person covered by Regulation No /71 moves from Sweden to another Member State, he shall be removed from the social insurance register as soon as he is covered, according to the Regulation, by that State&#;s legislation, even if he intends to stay there for less than one year.

19 Chapter 4 of the Law lays down rules on the right to parental benefit (`föräldrapenning&#;). According to those provisions, an insured parent who is registered with the social insurance office has a right to parental benefit as a result of the birth of a child for a maximum of days. For the first days, the amount of the benefit depends on the parent&#;s previous income, subject to a guaranteed minimum; for the last 90 days, the amount is the guaranteed minimum. The right to receive the benefit at an amount higher than the guaranteed minimum for the first days depends on fulfilment of certain conditions relating to affiliation to the social security scheme before the birth of the child; otherwise, the benefit is payable regardless of when the applicant became resident in Sweden provided that the child is less than eight years old. Even though the Law does not contain any provisions directly defining how long a benefit can be paid to an insured person who resides abroad, according to the national court it follows from the requirement of registration that a person ceases to be insured and to have the right to receive, inter alia, parental benefit if the stay abroad is intended to be for longer that one year, or, if appropriate, the earlier time when he becomes covered by the legislation of another Member State. Parental benefits are non-contributory.

20 The Swedish Government raises in its written and oral observations the question whether the parental benefit is a maternity benefit or whether it is not rather a family benefit, in which case Article 22 of Regulation No /71 will not be applicable. Since, however, the issue of the correct classification of the benefit has not been raised by the national court, and since it appears from the Swedish Government&#;s written observations that, at the time of the entry into force of the Agreement on the European Economic Area, when Regulation No /71 entered into force for Sweden, the parental benefit was notified in accordance with Articles 5 and 97 as a maternity benefit and there is no suggestion that that notification has been superseded, I will assume for the purposes of this Opinion that the parental benefit is a maternity benefit for the purposes of Regulation No /

The facts and the main proceedings

21 Anne Kuusijärvi, a Finnish national, worked in Sweden for 11 months, her last day of work being 10 February Thereafter she drew unemployment benefit until her child was born on 1 February , when she became entitled to a child allowance and parental benefit. On 1 July she moved to Finland where she remained unemployed. She was removed from the Swedish social insurance register on 2 July , and parental benefit ceased to be paid with effect from that date.

22 Anne Kuusijärvi&#;s application to continue to draw Swedish parental benefit after moving to Finland was rejected by the social insurance office for Norrbotten County. The Länsrätt (Administrative Court), Norrbotten, dismissed her appeal, ruling that the relevant provisions in Regulation No /71 and Regulation No /72 meant that she had a right to Swedish benefits under Regulation No /71 so long as the conditions for payment were fulfilled under the Swedish rules; in the light of, inter alia, the rules on removal from the Swedish social insurance register, she had upon leaving Sweden no right to continued payment of parental benefit after 1 July She appealed to the Kammarrätt in Sundsvall, which referred the following questions to this Court:

`1. Does Regulation (EEC) No /71 apply at all to a person who, before the regulation became applicable in Sweden, moved from Finland to Sweden and took up employment here, but who was not in employment in Sweden when the regulation came into force in Sweden and did not come here as an unemployed person after the regulation became applicable in Sweden, but only stayed here at that time as an unemployed person after a previous period of employment and then drew Swedish unemployment benefit. That is to say, can a person in that situation claim that, after 1 January , on the basis of Regulation No /71, he or she is covered by Swedish legislation as regards entitlement to Swedish social security benefits in the form of parental benefit?

If that question is answered in the affirmative, the following questions also need to be answered:

2. Is Article 13(2)(f) of Regulation No /71, in conjunction with Article 10(b) of Regulation No /72, to be understood as meaning that a Member State is not precluded from introducing a condition of residence in its territory in order for a person who has ceased working there to remain covered by that country&#;s legislation as regards cash maternity benefits?

3. Is Article 22 of Regulation No /71 to be understood as meaning that, if a person begins to draw cash maternity benefits in a competent state, that person retains entitlement, on the conditions applying according to that article, to those cash benefits when moving to another Member State only on condition that the person concerned fulfils all the provisions of the legislation applied by the competent country, that is to say including the requirement, laid down in those provisions, that the person concerned must be resident in its territory, or is Article 22 to be interpreted as meaning that such entitlement exists so long as the person concerned fulfils all other conditions of the national legislation of the country which he or she leaves, apart from the residence requirement?&#;

23 Written observations have been submitted by the Riksförsäkringsverket, the Commission and the Finnish, Netherlands, Norwegian and Swedish Governments. With the exception of the Norwegian Government, those parties were represented at the hearing.

The first question

24 The first question asks whether the Regulation applies to a person who was not employed in Sweden when the Regulation entered into force there but was staying there as an unemployed person with a right, based on previous employment there, to draw unemployment benefit. It appears from the order for reference that the question was put because of doubts whether in those circumstances the applicant fell within the definition of `employed person&#; in Articles 1(a) and 2(1) rather than because the facts ante-date Sweden&#;s accession to the Community.

25 There is a consensus among those submitting observations that the Regulation applies in the circumstances, although their reasons differ slightly.

26 The applicant has not submitted observations; her view, however, may be gleaned from the order for reference. She appears to have argued before the Kammarrätt that the Regulation applied in view of her employment and subsequent period of unemployment in Sweden before the Regulation came into force in that State.

27 The Riksförsäkringsverket refers to the principle established by the Court to the effect that the concept of an employed person is a Community concept to be interpreted widely so as to ensure maximum freedom of movement for workers within the Community. The relevant criterion is whether a person is covered by the social security legislation of the Member State in question. (11)

28 The Swedish Government notes that, before the Regulation entered into force, the applicant had worked in Sweden for 11 months and then drawn unemployment benefit. She was therefore covered by Swedish social security and accordingly within the personal scope of the Regulation.

29 The Finnish Government refers to Article 2 of the Regulation, which states that it applies to `employed or self-employed persons who are or have been subject to the legislation of one or more Member States&#;, and Article 1(a)(i) which further defines `employed person&#; as a person covered by a social security scheme for employed persons. The Court has moreover held that the term `worker&#; is not restricted to workers in active employment. (12) The Regulation accordingly covers a person in receipt of unemployment benefit at the time when it became applicable in the Member State in question.

30 The Norwegian Government refers to Article 94(2) and (3) of the Regulation, which provides that all periods of insurance and employment completed under the legislation of a Member State before the date of its application in the territory of that State are to be taken into consideration for the determination of rights acquired under it and that rights shall be acquired even though relating to a contingency which materialised prior to that date.

31 The Netherlands Government refers to the Court&#;s broad definition of `worker&#; as `any person who has the capacity of a person insured under the social security legislation of one or more Member States&#;. (13) It is for the national court to determine whether the applicant is insured under Sweden&#;s social security scheme so as to fall within this concept and the definition of `employed person&#; in Article 1(a)(ii).

32 The Commission refers to Article 2(1) of the Regulation, which brings within its scope employed persons who are or have been subject to the legislation of a Member State. Since the applicant was subject to Swedish legislation both while she was working and while she was receiving unemployment benefit and subsequently parental benefit, the Commission concludes that the applicant is an `employed person&#; for the purposes of the Regulation. The fact that the applicant was not in employment when she became entitled to the parental benefit does not affect that conclusion: the Commission refers to the definition of `employed person&#; in Article 1(a) and to Pierik (14) and notes that, since she received unemployment benefit and parental benefit in Sweden, she must have been covered against relevant risks in accordance with Article 1(a).

33 In my view, a combined reading of Articles 1(a) and 2(1) shows that the Regulation applies to, among others, any person who is insured for one or more of the contingencies covered by the branches of social security dealt with in the Regulation under a social security scheme for all residents and who is or has been subject to the legislation of one or more Member States. Those branches of social security include maternity and unemployment benefits. The national court is presumably in a position to determine whether, as appears, at the time the Regulation entered into force in Sweden the applicant was both so insured and subject to such legislation since she was in receipt of a specified benefit and resident in Sweden. If that is the case, it seems clear that she falls within the personal scope of the Regulation. If further support for that view should be required, it may be found in Article 94(2) and (3) of the Regulation and in the judgment of the Court in Pierik.

34 Pierik concerned the interpretation of the term `worker&#; which, in the version of the Regulation under consideration by the Court, (15) was defined by Article 1(a) as `any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered&#; by a social security scheme referred to in Article 1(a)(i), (ii) or (iii). That definition is almost identical to the definition of `employed person&#; in Article 1(a) of the current version of the Regulation. The Court stated:

`Laid down "for the purpose of this regulation", such a definition has a general scope, and in the light of that consideration covers any person who has the capacity of a person insured under the social security legislation of one or more Member States, whether or not he pursues a professional or trade activity. It follows that, even if they do not pursue a professional or trade activity, pensioners entitled to draw pensions under the legislation of one or more Member States come within the provisions of the regulation concerning "workers" by virtue of their insurance under a social security scheme, unless they are subject to special provisions laid down regarding them.&#; (16)

35 I accordingly conclude that a person in the applicant&#;s situation is within the personal scope of the Regulation.

The second question

36 By its second question, the national court asks whether Article 13(2)(f) means that a Member State is not precluded from requiring a person who has ceased working in that State to reside there in order to remain covered by its social security legislation. Article 13(2)(f), it will be recalled, provides that a person to whom the legislation of a Member State ceases to be applicable without the legislation of another Member State becoming applicable pursuant to Title II of the Regulation shall be subject to the legislation of the Member State where he resides.

Arguments of the parties

37 It appears from the order for reference that before the Kammarrätt the applicant argued primarily that, in view of her previous employment in Sweden and subsequent entitlement to unemployment benefit, the effect of Article 13 was that, even though she was resident in another Member State, she was covered by Swedish legislation until that legislation ceased to be applicable in accordance with Article 13(2)(f). The applicant considers that Article 13(2)(f) in conjunction with Article 10b of Regulation No /72 does not permit Sweden to invoke the residence requirement, which in her view would mean that as an unemployed person she would lose her right to parental benefit immediately on moving to Finland without being covered by Finnish social security legislation on the basis of the Regulation.

38 The Riksförsäkringsverket refers to the wording of Article 10b of Regulation No /72, to the effect that the date and conditions on which the legislation of a Member State ceases to be applicable to a person referred to in Article 13(2)(f) shall be determined in accordance with that legislation. The Swedish rules provide that an insured person who moves to another Nordic State ceases to be covered from the date of the move. The Riksförsäkringsverket considers that that is a valid condition given that it applies to nationals of all Member States.

39 The Swedish Government, in contrast, considers that Article 13(2)(a) (which provides that the applicable legislation is that of the Member State of employment) and not Article 13(2)(f) is the relevant provision. It refers to the judgment of the Court in Ten Holder, (17) which prompted the amendment to Regulation No /71 which inserted Article 13(2)(f). (18) In that case, the Court ruled that a worker who ceased to carry on an activity in a Member State and transferred his residence to another Member State without working there continued to be subject to the legislation of the Member State in which he was last employed, regardless of the length of time which had elapsed since the termination of the activity. Subsequently in Twomey (19) the Court ruled that only workers who had definitively ceased all professional or trade activity fell outside the scope of Article 13(2)(a). The Swedish Government considers that Article 13(2)(f) was intended to cover that latter situation; it does not apply to persons who have provisionally ceased to carry on a professional activity, for example because of temporary health reasons. For such a person, the applicable legislation is determined on the basis of the general rule, namely Article 13(2)(a), provided no specific circumstance militates in favour of applying another rule of Title II. The Swedish Government concludes that a person in the applicant&#;s situation is covered by the legislation of the State where she was most recently employed, and hence by the legislation of Sweden. That legislation makes entitlement to parental benefit subject to a residence condition. The Government accepts that that condition cannot be relied on where, as in its view in this case, Article 13(2)(a) applies. (20)

40 The Norwegian Government refers to the principle hallowed in numerous decisions of the Court that the objective of the free movement of workers would be frustrated if a migrant worker were to lose benefits granted under the legislation of a Member State as a consequence of such movement. The effect of Ten Holder is that Article 13(2)(a) applies, and the applicant continues to be covered by Swedish legislation until her entitlement to benefits ceases for reasons other than the change of residence, since a residence condition cannot be relied on against a worker within the scope of Article 13(2)(a). (21) The Norwegian Government considers that the legislative history of Article 13(2)(f) shows that it is secondary to all other provisions of Title II and applies only after the period for payment of benefits from the last State of employment has expired. If a Member State were free to determine that its legislation ceased to apply to a worker who moved from that State while entitled to social security benefits there but before acquiring entitlement to such benefits in the State to which he moved, the first State could terminate social entitlements which Community law sought to protect and apply the provisions of the Regulation only in so far as the conditions for cover and for payment of benefits were fulfilled under national rules, which would be contrary to the whole scheme of the Regulation. Finally, the Norwegian Government considers that Article 10b of Regulation No /72 is an administrative implementing rule and cannot be invoked as an independent legal provision with direct and detrimental consequences for the person concerned: in particular, it cannot permit a Member State to lay down different conditions for recipients of benefits who continue to reside in the competent State and for workers who move to other Member States.

41 The Commission considers that Article 13(2)(f) has not made Ten Holder otiose: on the contrary, that supplementary provision applies only as from the date when the right to a benefit from the other State expires and determines the legislation which applies thereafter. It is otherwise where the person concerned has ceased all professional activity (see Noij, (22) Daalmeijer (23) and Commission v Netherlands (24)), but that is not the case here: it cannot be concluded that the applicant has definitively ceased all professional activity simply because she is temporarily devoting herself to bringing up her child.

42 The Finnish Government notes that in Ten Holder the Court broadened the scope of Article 13(2)(a) to a worker who had ceased work, however long had elapsed since employment; subsequent cases, however, restricted its scope so that it did not apply to a person who had definitively ceased work. (25) In the latter case, the question of the applicable legislation is governed by Article 13(2)(f). The Finnish Government considers that Article 13(2)(f) is not limited to cases where there is a permanent cessation of work and suggests that it applies in a situation where it can be concluded on the basis of objective considerations that the worker has definitively stopped working in one State and moved to another; that may be for reasons other than retirement. It cannot however be interpreted so as to permit a Member State to decide freely at what point its legislation ceases to be applicable for the purposes of that provision; the question of the applicable legislation must always be settled by reference to the rules of Title II. However, whether Article 13(2)(f) applies is not decisive in this case; what is decisive is that Sweden was the competent State at the point when the benefit at issue was granted so that, whichever legislation is applicable, Article 22 precludes Sweden from invoking the residence condition to defeat the applicant&#;s entitlement to that benefit: that point is dealt with in the Finnish Government&#;s observations on the third question.

43 The Netherlands Government considers that Article 13(2)(f) lays down an explicit conflict rule which applies to situations such as the present and means that the case-law which might suggest that Article 13(2)(a) applies in this case, in particular Twomey, has become obsolete. Article 13(2)(f) applies where a person has definitively ceased activities in one Member State and resides in another. It is not however limited to old-age pensioners, but should cover anyone who definitively terminates his gainful employment in one particular State. The work link is then broken and it is open to the State - as shown by Article 10b - to determine whether and on what conditions such persons remain insured under their social security legislation. The Netherlands Government considers that, for the purposes of determining the applicable legislation, those conditions may include a residence condition, so that Swedish legislation no longer applies to the applicant since her move to Finland. The Netherlands Government considers, however, that its conclusion as to the applicable legislation does not mean that the applicant&#;s entitlement to parental benefit ceased when she returned to Finland: that issue is governed by Article 22, which it considers in the context of the third question.

The scope of Article 13(2)(f)

44 Article 13 is the first provision in Title II of Regulation No /71, headed `Determination of the legislation applicable&#;. The Court has ruled on numerous occasions that the provisions of Title II constitute a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community shall be subject to the social security scheme of only one Member State, in order to prevent the system of legislation of more than one Member State from being applicable and to avoid the complications which may result from that situation. (26)

45 Article 13(2)(f) was inserted into Regulation No /71 by Regulation No / (27) The third recital in the preamble to Regulation No /91 states:

`Whereas it has proved necessary, following the judgment delivered by the Court of Justice in Case /84 (Ten Holder) on 12 June , to insert a new subparagraph (f) in Article 13(2) of Regulation (EEC) No /71 in order to determine what legislation is applicable to persons to whom one Member State&#;s legislation ceases to be applicable without the legislation of another Member State becoming applicable to them, in accordance with one of the rules laid down in the previous subparagraphs of the same Article 13(2) or one of the exceptions provided for in Articles 14 to 17 &#;

46 Guidance as to the scope and purpose of Article 13(2)(f) may accordingly be sought in the judgment of the Court in Ten Holder. (28) Since however Ten Holder applied a principle previously laid down by the Court in Coppola, (29) that case is perhaps a better starting point.

47 Both cases concerned Article 13(2)(a), which sets out the principal rule in Title II of lex loci laboris, namely that a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State.

48 Coppola concerned the legislation applicable to a worker who had been employed in the United Kingdom and then Italy before falling ill. The Court ruled that, although Article 13(2)(a) did not expressly mention the case of a worker who was not employed when he sought sickness benefit, it was appropriate to interpret it as referring, where necessary, to the legislation of the State in whose territory the worker was last employed. (30)

49 Ten Holder concerned a Netherlands national who was employed in Germany when she became incapacitated for work and entitled to sickness benefits. She returned to live in the Netherlands; subsequently the German sickness benefits were discontinued on the ground that the maximum period for their payment had expired. The Court, applying Coppola, ruled that the effect of Article 13(2)(a) was that a worker who had ceased to carry on an activity in the territory of a Member State and who had not taken up employment in another Member State continued to be subject to the legislation of the Member State in which he was last employed, regardless of the length of time which had elapsed since the termination of the activity in question and the end of the employment relationship. (31)

50 The application of that apparently very broad proposition was restricted in a trio of subsequent cases. In Noij, (32) the Court ruled that neither Article 13(2)(a) nor any other provision of Title II applied to a worker who had taken early retirement and hence had definitively ceased to be employed. Article 13(2)(a) in particular was designed to resolve conflicts of legislation which may arise where, during a single period, the place of residence and the place of employment are not situated in the same Member State: such conflicts could no longer arise in the case of workers who had definitively ceased all professional or trade activity. (33) That principle was upheld in Daalmeijer, (34) where the Court ruled that Article 13(2)(d), which states that civil servants are to be subject to the legislation of the Member State to which the administration employing them is subject, did not apply to persons who had definitively ceased to carry on any professional or trade activity, (35) and in Commission v Netherlands, (36) where the Court ruled that Article 13(2)(a) was not applicable to employed persons who had taken early retirement. (37)

51 Finally, Twomey (38) concerned a United Kingdom national who worked and resided for a time in the United Kingdom, terminated her employment and moved to Ireland where she did not work. Some months after moving to Ireland, she was certified as unfit for work and sought United Kingdom sickness benefit. At that time, she was 20 years old. Article 13 was not mentioned in the question referred, but the German Government argued at the hearing that Article 13(2)(a) did not apply to a person in Mrs Twomey&#;s position since she was no longer employed in the United Kingdom. It argued that she was accordingly subject to the legislation of the State of residence. The Court rejected that argument, reiterating the principle laid down in Ten Holder that a worker who had ceased to carry on an activity in the territory of a Member State continued to be subject to the legislation of that State if he had not taken up employment in another Member State, and that laid down in Noij that only workers who have definitively ceased all professional or trade activity fall outside the scope of Article 13(2)(a).

52 It is clear that Article 13(2)(f) sought at least to provide for the situation of a worker who has definitively ceased all professional or trade activity and resides in a Member State other than the State of last employment. (39) The legislation applicable to such a worker will now be that of the State of residence.

53 The issue in the present case however is whether the scope of Article 13(2)(f) is wider than that, so that the provision also applies where a person who is resident in a State other than the State of last employment has temporarily ceased to work, for example because of sickness or childbirth, and the legislation of the State of last employment provides that in such circumstances it ceases to apply.

54 To my mind, there is nothing in the wording of Article 13(2)(f) to suggest that it was intended to be restricted to workers who have definitively ceased all occupational activity. On the contrary, its wording and history suggest that it was rather intended to have the status of, in effect, an alternative general provision. The scheme of Article 13(2) would thus broadly be that the law of the State of employment, articulated in subparagraphs (a) to (e), would apply where the person concerned was working and the law of the State of residence would apply where he was not. The legislation of the Member State of last employment would, as provided for by Article 10b of Regulation No /72, determine the date and conditions when it ceased to apply. As will be seen, however, in the context of the third question, where at that date a person is entitled to a specific benefit payable by the State of last employment, the fact that the legislation of that State ceases to be applicable will not necessarily, or even usually, mean that that person simultaneously loses his entitlement to continued payment of that benefit.

55 That view finds support, moreover, in the preamble to Regulation No /91, which suggests that Article 13(2)(f) was intended to cover precisely the type of situation at issue in Ten Holder, namely the transfer of residence by a person in receipt of a benefit such as sickness benefit which is likely to prove temporary, thus in effect reversing the judgment. The preamble states: `Whereas it has proved necessary, following the judgment to insert a new subparagraph (f)&#;. (40)

56 Further guidance as to the Commission&#;s intentions may be found in the explanatory memorandum on the proposal, (41) which states as follows:

`The Ten Holder judgment revealed a gap in Title II of Regulation (EEC) No / There is indeed no specific provision determining what legislation is applicable to persons who have ceased to engage in any occupational activity under the legislation of one Member State and who reside in the territory of another Member State.

The proposed Article 13(2)(f) is intended to eliminate this gap.&#;

There is nothing in that explanation, or elsewhere in the Explanatory Memorandum, to suggest that Article 13(2)(f) was intended to be restricted to persons who have definitively ceased work.

57 It is also relevant to note that, at the time the Commission submitted its proposal for Regulation No /91 the Court had not yet delivered its judgments in Noij and Daalmeijer; accordingly it may be thought unlikely that the Commission intended to cater solely for a category of persons whose exclusion from Regulation No /71 had not yet been established.

58 A wider interpretation of Article 13(2)(f) would moreover avoid the consequence of the alternative view - highlighted by the Netherlands Government at the hearing - that a recipient of long-term benefits from one Member State who moves to another State without working there would retain his entitlement to such benefits from the first Member State indefinitely, which does not seem wholly sensible. That consequence would also follow from the solution advanced by the Commission, namely that Article 13(2)(f) would become applicable after any existing entitlement to benefits under the legislation of the Member State of last employment expires.

59 Finally, I would allay the concerns expressed by the Norwegian Government to the effect that, if Article 13(2)(f) were to apply in the circumstances under consideration, the scheme of the Regulation, and in particular its aim of promoting free movement of workers, would be frustrated. The Norwegian Government fears that a consequence of ruling that in circumstances such as those of the present case the applicable legislation is that of the State of residence would be that persons in the applicant&#;s situation would lose entitlement to benefits which existed at the time of the transfer of residence. That consequence however will not necessarily follow since, as will be seen in the context of the reply to the third question, both the benifit at issue in this case and numerous other benefits within the scope of the Regulation are covered by provisions designed to ensure their continued payment, notwithstanding change of residence, in situations analogous to that of the applicant.

60 It accordingly seems to me that there are sound arguments for interpreting Article 13(2)(f) as meaning that where a person who has temporarily or permanently ceased occupational activity transfers his residence from the Member State of last employment to another Member State and the legislation of the former State provides that it ceases to be applicable on such a transfer, the legislation of the State of residence becomes the applicable legislation with effect from the transfer of residence. However, as both the Netherlands and the Finnish Government point out, the interpretation of Article 13(2)(f) does not, on the facts of the present case, affect the applicant&#;s entitlement to continued receipt of the parental benefit. That conclusion follows from the correct interpretation of Article 22, which is the subject of the national court&#;s third and final question and to which I shall now turn. It is consequently unnecessary, in the light of the answer to the question 3, to take a definitive view on the scope of Article 13(2)(f).

The third question

61 Article 22 is in Title III of Regulation No / That Title is headed `Special provisions relating to the various categories of benefits&#;. Chapter 1 of Title III, comprising Articles 18 to 36, concerns sickness and maternity benefits. Article 22 provides that an employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits and who, having become entitled to benefits chargeable to the competent institution, is authorised by that institution to transfer his residence to the territory of another Member State, shall be entitled to cash benefits provided by that institution in accordance with the provisions of the legislation which it administers. Authorisation for a transfer of residence may be refused only if it is established that movement of the person concerned would be prejudicial to his state of health or the receipt of medical treatment.

62 For the purposes of the Regulation, `employed person&#; includes any person who is insured for one or more of the contingencies covered by the branches of social security dealt with in the Regulation, under a social security scheme for all residents, (42) `competent State&#; is defined as `the Member State in whose territory the competent institution is situated&#; (43) and `competent institution&#; is defined inter alia as `the institution with which the person concerned is insured at the time of the application for benefit&#; (44) and `the institution from which the person concerned is entitled or would be entitled to benefits if he were resident in the territory of the Member State in which the institution is situated&#;. (45)

63 Article 22 thus applies in the present case regardless of the applicable legislation, since even if the effect of Article 13(2)(f) is that Finnish legislation became applicable to the exclusion of Swedish legislation at the time the applicant moved to Finland, Sweden remains the competent State for the purposes of Article 22 in relation to the maternity benefit in question.

64 The national court&#;s third question essentially asks whether the requirement in Article 22 that persons to whom it applies satisfy the conditions of the national legislation means that, where that legislation includes among such conditions a requirement of residence on national territory, a recipient who moves to another Member State ceases to be entitled to payment of the benefit.

65 Article 22(1)(b) by its terms applies where a person entitled to sickness or maternity benefits returns to the Member State where he resides or transfers his residence to another Member State and ensures that in such circumstances the recipient retains his entitlement to the benefits in question. It is evident that if that entitlement could be defeated by a national residence requirement the provision would be entirely devoid of purpose, which can scarcely have been intended. Article 22 is moreover one of a series of provisions of the Regulation which seek to ensure that Member States may not in general refuse payment of social security benefits within the Regulation solely because the putative recipient resides in another Member State: see, for example, Articles 10 (invalidity, old-age or survivors&#; cash benefits, pensions for accidents at work or occupational diseases and death grants), 52 and 55 (accidents at work and occupational diseases), 69 to 71 (unemployment benfits), and 73 (family benefits). I accordingly conclude that the right to continued payments of benefits conferred by Article 22 cannot be defeated by a residence requirement imposed by national legislation as a condition of entitlement to such benefits.

66 It may be noted that that view is shared by all the parties except the Riksförsäkringsverket, which considers that Article 22 does not regulate the type of conditions to which the competent State may subject entitlement to benefits, but merely requires those conditions to be satisfied. Accordingly in its view that article does not apply since the applicant has left Sweden to stay for more than one year in Finland. By contrast the applicant, the Swedish, Finnish, Netherlands and Norwegian Governments and the Commission all concur in the view that Article 22 entitles a recipient to continue receipt of the benefit after transferring her residence to another Member State provided that the conditions of entitlement laid down by national legislation, other than any residence condition, are satisfied. The Commission and the Netherlands Government note in addition that authorisation for a transfer of residence may be refused only if it is established that movement of the person concerned would be prejudicial to their state of health, which does not seem to be the case, and submit that to restrict entitlement to the benefit by imposing a residence condition would be contrary to the meaning and aim of Article

67 Those submissions are plainly well founded and I accordingly conclude that a person in receipt of cash maternity benefits in a Member State retains entitlement to those benefits after moving to another Member State provided that she fulfils all the conditions of the national legislation of the first Member State apart from any residence requirement.

Conclusion

68 Accordingly I am of the opinion that the questions referred by the Kammarrätt, Sundsvall, should be answered as follows:

(1) Council Regulation (EEC) No /71 of 14 June on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community applies to a person who was insured in a Member State within the meaning of Article 1(a) and subject to the legislation of that State at the time the Regulation became applicable there even though at that point that person was neither employed nor in receipt of unemployment benefit in that State.

(2) Article 22 of Regulation No /71 precludes a Member State from refusing to continue payment of maternity benefit to a person otherwise entitled to such benefit by reason solely of a transfer of residence to another Member State.

(1) - Council Regulation (EEC) No /71 of 14 June on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community. The text of the Regulation as at the end of may be found in Part I of Annex A to Council Regulation (EC) No /97 of 2 December amending and updating Regulation (EEC) No /71, OJ L 28, p. 1.

(2) - Council Regulation (EEC) No /91 of 25 June amending Regulation (EEC) No /71 on the application of social security schemes to employed persons, self-employed persons and members of their families moving within the Community and Regulation (EEC) No /72 laying down the procedure for implementing Regulation (EEC) No /71, OJ L , p. 2.

(3) - Council Regulation (EEC) No /72 of 21 March laying down the procedure for implementing Regulation (EEC) No /71 on the application of social security schemes to employed persons, to self employed persons and to their families moving within the Community; for the latest consolidated version see Part II of Annex A to Regulation No /97, cited in note 1.

(4) - OJ L 1, p. 3; see in particular Article 29, Protocol 1 and Annex VI.

(5) - Lagen () om allmän försäkring.

(6) - Chapter 1, paragraph 3.

(7) - Chapter 1, paragraph 4.

(8) - Instructions (RFFS ) concerning registration and deregistration with a social insurance fund.

(9) - Paragraph 3.

(10) - Paragraphs 9 and

(11) - Case 75/63 Hoekstra v Bedrijfsvereniging Detailhandel [] ECR

(12) - Case /78 Algemeen Ziekenfonds Drenthe-Platteland v Pierik [] ECR and Case C/90 Twomey [] ECR I

(13) - Pierik, cited in note 12, paragraph 4 of the judgment.

(14) - Cited in note

(15) - OJ, English Special Edition (II), p.

(16) - Paragraph 4 of the judgment.

(17) - Case /84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging [] ECR

(18) - See paragraphs 45 to 49 below.

(19) - Cited in note

(20) - Case C-2/89 Kits van Heijningen [] ECR I

(21) - Kits van Heijningen, cited in note

(22) - Case C/88 [] I-ECR

(23) - Case C/88 [] ECR I

(24) - Case C/90 [] ECR I

(25) - Noij, cited in note 22, Daalmeijer, cited in note 23, and Commission v Netherlands, cited in note

(26) - See most recently Case C/95 Huijbrechts v Commissie voor de Behandeling van Administratieve Geschillen [] ECR I, paragraph 17 of the judgment.

(27) - Cited in note 2.

(28) - Cited in note

(29) - Case /82 Coppola v Insurance Officer [] ECR

(30) - Paragraph 11 of the judgment.

(31) - Paragraphs 14 and 15 and operative part.

(32) - Cited in note

(33) - Paragraph 10 of the judgment.

(34) - Cited in note

(35) - Paragraphs 12 and 13 of the judgment.

(36) - Cited in note

(37) - Paragraph 10 of the judgment.

(38) - Cited in note

(39) - See the Explanatory Memorandum on the Commission&#;s proposal for a Council Regulation (EEC) amending Regulation (EEC) No /71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No /72 laying down the procedure for implementing Regulation (EEC) No /71, OJ C , p. 3; COM(90) final.

(40) - Third recital.

(41) - Cited in note

(42) - Article 1(a)(ii).

(43) - Article 1(q).

(44) - Article 1(o)(i).

(45) - Article 1(o)(ii).

Sours: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3ACC

Document CC

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 21 March  (1)

Case C/11

Deutsche Umwelthilfe eV

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany))

‛Access to environmental information held by or for public authorities — Scope of the exception in Article 2(2) of Directive /4/EC — Whether public authorities adopting executive regulatory instruments act in a legislative capacity’

1. 

A hierarchy of norms is a usual feature of modern legal systems. It connotes the idea of a vertical ordering of legal acts, those lower in rank being made pursuant to enabling powers contained in an act of a higher status. Thus, primary legislation enacted pursuant to parliamentary procedures and adopted by the legislature is complemented by secondary legislation (2) adopted by the executive pursuant to an enabling power set out in a primary legislative act. When adopting such acts the executive is often able to follow a less elaborate procedure than that which applies to primary legislation. (3)

2. 

In this reference from the Verwaltungsgericht Berlin (Germany), the national court raises the issue that the Court did not answer in Flachglas Torgau, (4) because it was not relevant to the outcome of that case, namely whether the executive branch of government is a body or institution acting in a legislative capacity within the meaning of Article 2(2) of Directive /4 (5) when it adopts regulatory instruments pursuant to a legal power conferred by enabling provisions contained in primary legislation.

Legislation

The Aarhus Convention

3.

The European Union, the Member States and 19 other States are contracting parties to the Aarhus Convention which entered into force on 30 October  (6) The Convention is based on three ‘pillars’ – access to information, public participation, and access to justice. Its preamble includes the following recitals:

‘Recognising that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns,

Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment,

Recognising the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings’.

4.

Article 2(2) of the Convention defines ‘public authority’ as, in particular, ‘government at national, regional and other level’, together with any natural or legal persons having public duties, responsibilities or functions, particularly with regard to the environment, but excludes from that definition ‘bodies or institutions acting in a judicial or legislative capacity’.

5.

Article 4 of the Convention, which introduces the first pillar, is entitled ‘Access to environmental information’. In essence, its first two paragraphs require the contracting parties to ensure that public authorities, in response to a request for environmental information, make such information available to the public as soon as possible, without an interest having to be stated. Article 4(3) and (4) lay down certain grounds on which such a request may be refused. The final subparagraph of Article 4(4) states: ‘The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.’

6.

Article 8 of the Convention is entitled ‘Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments’. It provides that the contracting parties must strive to promote effective public participation at an appropriate stage and while options are still open in relation to the preparation of such measures.

Treaty provisions

7.

Article  TFEU concerns legislative acts in the European Union system. Article (3) provides that legal acts adopted by legislative procedure shall constitute legislative acts. Article  TFEU defines delegated acts and sets the conditions and controls over making such acts at European Union level.

The Environmental Impact Assessment Directive

8.

The EIA Directive (7) is intended to harmonise the assessment of effects on the environment which are likely to occur if certain projects are realised. The sixth recital in the preamble states that ‘development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; … this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question’.

9.

Article 1(5) of the EIA Directive provides that that directive does not apply to projects the details of which are adopted by a specific act of national legislation, since the directive’s objectives, including that of supplying information, are achieved through the legislative process.

Directive /4

Directive /4 covers the first pillar of the Aarhus Convention, together with those parts of the third pillar which are relevant to access to information.

Recitals 1, 5, 7, 11 and 16 in the preamble to Directive /4 state:

‘(1)

Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.

(5)

… Provisions of Community law must be consistent with [the Aarhus Convention] with a view to its conclusion by the European Community.

(7)

Disparities between the laws in force in the Member States concerning access to environmental information held by public authorities can create inequality within the Community as regards access to such information or as regards conditions of competition.

(11)

To take account of the principle in Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment.

(16)

The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. …

…’

Article 1 of Directive /4 states:

‘The objectives of this Directive are:

(a)

to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and

(b)

to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. …’

Article 2(1) of Directive /4 defines ‘environmental information’ as:

‘… any information in written, visual, aural, electronic or any other material form on:

(a)

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b)

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c)

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

…’

Article 2(2) defines public authority as:

‘(a)

government or other public administration, including public advisory bodies, at national, regional or local level;

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. …’

Article 2(3) defines information held by a public authority as ‘environmental information in its possession which has been produced or received by that authority’.

Article 3(1) provides:

‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.’

Article 4 is entitled: ‘Exceptions’. It sets out, in paragraphs 1 and 2, the circumstances in which Member States may provide for a request for environmental information to be refused. Those circumstances reflect the provisions of Article 4(3) and (4) of the Aarhus Convention. (8) The second subparagraph of Article 4(2) states: ‘The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure.’

National law

The Umweltinformationsgesetz (Environmental Information Law, ‘the UIG’) implemented Directive /4 in German federal law.

Paragraph 2(1)(1) of the UIG includes ‘the government and other public administrative bodies’ among those required to provide information. However, Paragraph 2(1)(1)(a) expressly excludes ‘the highest Federal authorities from that obligation when acting in the context of a legislative process or issuing regulatory instruments [“Rechtsverordnungen”]’.

National legislation (9) empowers the Federal Ministry of Economic Affairs and Technology (‘the Ministry’) to adopt regulations amending the Pkw-Energieverbrauchskennzeichnungsverordnung (‘Regulation on energy-consumption labelling of motor cars’).

The regulation of 22 August  (10) was duly adopted by the Ministry under those enabling powers. That regulation deals with the provision of information to consumers regarding the fuel consumption, carbon dioxide emissions and electricity consumption of new motor cars. It provides that that information must be given to consumers prior to the conclusion of a contract of sale, because it is considered that such information may influence whether or not they make a purchase. Consumers’ decisions determine which cars are on the road generating carbon dioxide emissions and thus ultimately affect the air and the atmosphere.

Facts, procedure and the questions referred

On 14 October Deutsche Umwelthilfe, an environmental association, made a request to the Ministry under the UIG. Specifically, it sought access to information which the German car industry had submitted to the Ministry during the preparatory stages of the process that led in due course to the adoption of the regulation of 22 August

The Ministry rejected Deutsche Umwelthilfe’s request on the grounds that it had been acting in a legislative capacity and was therefore not a public authority subject to an obligation to provide environmental information.

Deutsche Umwelthilfe instituted proceedings challenging that decision before the Verwaltungsgericht Berlin, which has referred the following questions to the Court:

‘(1)

Is the second sentence of Article 2(2) of [Directive /4/EC] to be interpreted as meaning that bodies and institutions are acting in a legislative capacity when their activities relate to legislation by the executive on the basis of authorisation given by a law enacted by parliament?

(2)

If question 1 is to be answered in the affirmative, are such bodies and institutions permanently excluded from the term “public authority”, or only until completion of the legislative process?’

Written observations were submitted by Deutsche Umwelthilfe, the German Government and the European Commission, all of whom made oral submissions at the hearing on 17 January

Preliminary issues

The Commission has raised three matters which I shall address before embarking on the substance of my analysis.

First, the Commission points out that prior to the Lisbon Treaty there was no general definition of ‘legislative act’ at European Union level. It was therefore possible to claim legitimately that Commission regulations, by virtue of their substantive content, were legislative acts. However, such a claim is no longer possible in the light of Article (3) TFEU. Whether an EU measure is a legislative act is now a question of form rather than substance. (11) The Commission argues that, if regard is had to whether a particular type of regulatory instrument is classified as a legislative or executive act in each Member State, the answer to the question whether the exception in Article 2(2) of Directive /4 applies would vary from Member State to Member State.

Given the rich variety of legal traditions and legal systems across the 27 Member States, it seems desirable to adopt an approach towards interpreting the directive that is more likely to achieve a uniform interpretation. (12)

Second, the Commission accepts that the information sent to the Ministry by the German car industry to which Deutsche Umwelthilfe seeks access is environmental information for the purposes of Article 2(1) and (3) of Directive /4. However, it submits that that material falls outside the scope of the second subparagraph of Article 2(2), because it does not emanate from a public authority. The Commission therefore contends that it is unnecessary to answer the national court’s first question.

The national court has not felt it necessary to refer a question asking whether requests for environmental information addressed to a public authority may target information provided to that authority by a private individual. In my view, it was fully entitled not to do so.

The emphasis that the Commission places on the provenance of the information in question and whether it emanates from a private individual or a public authority is plainly at variance with Article 2(3) of Directive /4, which states that information held by a public authority is ‘environmental information in its possession’ if it has been ‘produced or received by that authority’. Whilst the former category of information will indeed (by definition) have been generated by a ‘public authority’, I can see no good reason to suppose that the latter category is meant to be limited to information received from other public authorities. On the contrary: the natural reading is that authorship is irrelevant – what matters is possession.

Third, the national court takes the view that the adoption of regulatory instruments within the meaning of Paragraph 2(1)(1)(a) of the UIG covers all directly associated activities including consultations between the Ministry and the German car industry. The Commission considers that the national court’s interpretation of Paragraph 2(1)(1)(a) of the UIG is incompatible with the second subparagraph of Article 2(2) of Directive /4 and puts forward a different interpretation of national law.

Again, I cannot accept the Commission’s position.

It is settled law that the Court is in principle required to base its consideration on the description of national law given in the order for reference. (13)

Furthermore, it is a characteristic of the preliminary reference procedure under Article  TFEU that it is for the national court to rule on the dispute before it taking account of the Court’s reply. (14) Thus, it is for the court making the reference to assess the compatibility of national legislation with European Union rules. This Court’s function is to provide the national court with the criteria to enable it to interpret Article 2(2) of Directive /4 and to apply its national rules, (15) not to rule on the compatibility of Paragraph 2(1)(1)(a) of the UIG with that directive. It follows that the Court should answer the national court’s first question.

Question 1

In Flachglas Torgau the Court was asked whether the exception in Article 2(2) of Directive /4 applies to ministries when they participate in the process of adopting primary legislation. The Court held that a functional interpretation should apply to the phrase ‘bodies or institutions acting in a … legislative capacity’. Where ministries are responsible under national law for tabling draft laws, presenting them to parliament and participating in the legislative process, in particular by formulating opinions, they may therefore fall within the exception (if the Member State chooses to apply it).

The present case differs from Flachglas Torgau. Here, the question is whether regulatory instruments adopted by the executive are covered by that exception.

Deutsche Umwelthilfe contends that Article 2(2) of Directive /4 should be interpreted narrowly so as to exclude the process of adopting such measures. The German Government considers that, on the contrary, a wide interpretation is appropriate. The Commission submits that a narrow interpretation would fail to take account of the Court’s functional approach in Flachglas Torgau. Too wide an interpretation, however, would be inconsistent with the meaning of the directive as construed in the light of the Aarhus Convention.

Should the exception provided in Article 2(2) of Directive /4 be interpreted widely or narrowly? Or is there a third option whereby certain regulatory instruments, but not others, are covered by the exception? If so, how should the protected category be delineated?

There is no indication in the wording of Directive /4 or the Aarhus Convention as to whether bodies or institutions adopting regulatory instruments are to be considered as ‘acting in a … legislative capacity’.

When interpreting exceptions to a general rule the Court will adopt a strict approach. (16) Thus in Flachglas Torgau the Court held that the second subparagraph of Article 2(2) of Directive /4 may not be interpreted in such a way as to extend the effects of the derogation beyond what is necessary to safeguard the interests which it seeks to secure; and that the scope of the derogations which it lays down must be determined in the light of the aims of the directive. (17) That approach should clearly be followed here.

Furthermore, Directive /4 is to be read in the light of the objectives and scheme of the Aarhus Convention. (18) Where there is a choice of more than one approach towards interpreting that directive, I consider it preferable to take that which deviates less from the Convention. (19)

Both the Convention and Directive /4 reflect a determination to ensure increased transparency, in particular with respect to a citizen’s ability to hold public authorities to account. (20) Guaranteeing the right of public access to environmental information is expressly mentioned as an objective in Article 1 of the Convention (and Article 1 of the directive). In overall terms transparency is beneficial, although unlimited transparency is not envisaged. In particular, both the Convention and Directive /4 accept that the objective of providing transparency may be tempered by the need to allow public authorities to carry out their tasks without undue disruption. (21)

Given the importance that the Convention affords to ensuring transparency Directive /4 should, where ambiguous, be construed so as to promote that objective rather than adopting an interpretation that would render achieving that objective more difficult. (22)

Article 4(1) of the Convention provides that, upon request, public authorities are under an obligation to make environmental information available to the public. However, where the exception in Article 2(2) applies, the body or institution concerned falls outside the definition of a ‘public authority’ and it is consequently not subject to that obligation. It is therefore relieved from the task of considering whether access to information sought may or should be refused on the basis of the exceptions listed in Article 4(3) and (4).

Would bodies or institutions be impeded in adopting regulatory instruments if the overarching exception in Article 2(2) of the directive did not apply to them and they were subject to the normal obligation to disclose subject to the exceptions listed in Article 4(1) thereof?

The Court held in Flachglas Torgau that: ‘The purpose of the first sentence of the second subparagraph of Article 2(2) of Directive /4 is to allow Member States to lay down appropriate rules to ensure that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process’. (23)

In the light of that statement, Germany asks: why should the process for the adoption of regulatory instruments not be protected by the same safeguards that apply to adopting primary legislation?

That is a fair question. In answering it, I shall take account of the following factors.

Like primary legislation, regulatory instruments are usually measures that contain binding rules of general application. The two categories of legal norm are, however, not the same. Importantly, the procedures leading to the adoption of primary and secondary legislation differ. Indeed that is partly why many (if not most legal) systems contain mechanisms making it possible to legislate at different levels. Parliamentary procedures for adopting primary legislation are by their nature time-consuming. They can also be rigid. Thus, an interruption to the timescale can derail an administration’s legislative agenda. The procedures for adopting secondary legislation, whilst sometimes complex, are nonetheless significantly quicker and more flexible than a full parliamentary process, thus allowing the administration to take regulatory action relatively expeditiously. (24) A feature of the process of adopting secondary legislation is that, in general, the full democratic parliamentary process is less engaged. There may be little (or indeed no) procedural requirement for parliamentary debate. There is, in general, therefore less transparency and less opportunity for public scrutiny.

Germany maintains that the process leading to the adoption of the regulation of 22 August was transparent. Deutsche Umwelthilfe claims that that process did not provide a comparable degree of transparency and public scrutiny to that afforded by the parliamentary process for adopting primary legislation.

There is no neat division regarding what is covered by primary legislation and by instruments of a lower rank. Regulatory instruments can be used to introduce contentious measures. It is not unknown for legislators to manipulate their national system by using the less transparent process afforded by secondary legislation to implement difficult policy choices outside the glare of public scrutiny in the parliamentary process (I add at once that I am not suggesting that that was the case here). Proposed measures affecting the environment can evoke strong views for or against. The Aarhus Convention aims to prevent legislation affecting the environment being made in secret.

Insofar as procedures for adopting secondary legislation provide less transparency and less opportunity for public scrutiny, it follows that an interpretation of Article 2(2) of Directive /4 that extended the exception for ‘acting in a … legislative capacity’ to cover all regulatory instruments would be inconsistent with attaining the objectives of the Convention. (25)

I prefer to resolve the ambiguity in Article 2(2) by interpreting that provision in a manner which ensures that more (rather than less) transparency and therefore more (rather than less) public scrutiny are achieved. I thus take the view that the presumption should be that regulatory instruments fall outside the scope of the exception.

I add that the Convention itself makes specific provision for ‘executive regulations and/or generally applicable legally binding normative instruments’ in Article 8, concerning the second pillar, (which deals with public participation). Such a distinction suggests that, within the scheme of the Convention, the adoption of primary legislation is considered to be intrinsically different from the adoption of regulatory instruments. It is therefore, unlikely that the words ‘acting in a … legislative capacity’ in Article 2(2) of the Convention, which are transposed almost verbatim by Article 2(2) of Directive /4, were intended automatically to include both activities.

Would the process of adopting secondary legislation cease to run smoothly (26) if the overarching exception in Article 2(2) did not apply automatically to that category of legal norm?

The words ‘acting in a … legislative capacity’ in Article 2(2) cover a fluid process. A number of preparatory functions are performed by the executive branch of government before the draft text of a proposed law is debated during a parliamentary session. These may include gathering and assessing information, forming policy, drafting legal rules, preparing legal opinions relating to the act concerned, and conducting a consultation exercise. Information concerning certain of those activities might well be covered by one of the exceptions in Article 4(1) or (2) of Directive /4, thus affording the necessary degree of protection within the regulatory process. For the rest, it seems to me that the potential risk of ‘disruption’ to the adoption of regulatory instruments is the price that is paid for achieving the transparency and public accountability sought by the Convention and the directive.

Both Germany and the Commission acknowledge that different constitutional provisions may lead to different results in the various Member States. Any interpretation based upon specific procedural features of the regulatory process therefore risks applying the exception in Article 2(2) of the directive in different ways across the European Union. That would be contrary to one of the clear objectives of Directive /4, as set out in recital 7 in the preamble, which is to harmonise the disparities between the laws of the Member States concerning access to environmental information held by public authorities, which in turn requires a uniform interpretation of EU law. (27)

Thus far I have spoken of a presumption that the adoption of regulatory instruments is not covered by the overarching exception for ‘legislative activity’ contained in Article 2(2) of Directive /4. Is that presumption rebuttable and if so on what basis?

Both the German Government and the Commission invite the Court to establish criteria to enable national courts to determine whether a particular regulatory instrument falls within or without the scope of the exception in Article 2(2) of the directive. (In so suggesting, it seems to me that they must necessarily accept – albeit implicitly – that some regulatory instruments ought not to be protected by that exception.)

Is it possible to lay down such criteria?

The Commission suggests that the case-law developed by the Court in interpreting the EIA Directive should apply here by analogy. (28) That case-law indicates essentially that only projects the details of which have been adopted by a specific legislative act, in such a way that the objectives of the EIA Directive have been achieved by the legislative process, are excluded from that directive’s scope. (29) The German Government disagrees. It submits that the case-law concerning the EIA Directive does not assist in interpreting the scope of Article 2(2) of Directive /4.

I am not convinced that the EIA Directive case-law can be applied by direct analogy.

The EIA Directive applies in particular circumstances where an environmental impact assessment is made on the basis of information supplied by the developer concerned. Directive /4 is much broader in its scope. It provides for a general scheme to ensure that any natural or legal person in a Member State has a right of access to environmental information held by or on behalf of the public authorities, without that person having to show an interest. (30) I do not consider therefore that it is appropriate merely to transpose the Court’s interpretation of the very specific provisions of the EIA Directive to the general regime covered by Directive /4.

However, I agree with the Commission to the extent that, in seeking to formulate criteria to determine whether, in a particular case, the presumption that regulatory instruments do not fall within the exception to Article 2(2) is rebutted, it is essential to refer to the objectives of Directive /4. It seems to me that where (a) the procedures leading to the adoption of a regulatory instrument meet the objectives identified by the Court, guaranteeing the right of access to environmental information held by a public authority, and (b) the dissemination and making available of such information to the public (31) are achieved in a manner that is comparable to that which pertains when primary legislation is enacted, transparency and the opportunity for public scrutiny are ensured. In those circumstances, applying the exception in Article 2(2) of Directive /4 would not undermine the effectiveness of that directive. It will be for the national court to determine whether those criteria are satisfied in a particular case; and the burden of proof to demonstrate that that is so should lie with the public authority that is seeking to invoke the exception.

Admittedly, not having a black/white rule as to whether or not the procedure for making regulatory instruments is covered by the Article 2(2) exception will mean that national courts will, as necessary, have to examine and compare national procedures for enacting primary and secondary legislation. In reviewing the level of safeguards provided by national law, national judges will become the guardians of the transparency and accountability required by the Aarhus Convention and by Directive /4. They will of course always be able, if they wish, to seek further guidance from this Court before pronouncing judgment.

The referring court has, of course, not yet embarked upon such an exercise in the present case. Should the Court adopt the approach that I am proposing, it will be a matter for the national court to examine the procedures under national law leading to the adoption of the regulation of 22 August and to determine whether the objectives of transparency and public scrutiny were guaranteed in the process of adopting that regulatory instrument, in particular in allowing access to information received by the Ministry concerned, as well as information emanating from it, preparatory documents and any parliamentary debates. Only if the national court is satisfied that that was the case should it allow the exception in Article 2(2) of Directive /4 to apply.

Accordingly, I consider that the national court’s first question should be answered to the effect that executive bodies adopting binding acts under powers granted by a parliamentary act are excluded from the scope of the exception in the first sentence of the second subparagraph of Article 2(2) of Directive /4, unless the procedure for adopting such instruments guarantees a right of access to environmental information in such a way that the objectives of Directive /4 have been achieved in a way comparable to that provided by the procedure for adopting legislative acts. The burden of demonstrating that that is so lies with the executive body seeking to rely upon that exception. It is for the national court to verify that the objectives of Directive /4 have been satisfied, taking account in particular of the objectives of transparency and public scrutiny.

Question 2

If the Court answers question 1 as I have suggested, there is no need to reply to question 2. However, for the sake of completeness, should the Court wish to answer that question I agree with all the parties that – applying the reasoning of the Court in Flachglas Torgau (32) – the first sentence of the second subparagraph of Article 2(2) of Directive /4 must be interpreted as meaning that the option given to Member States by that provision of not regarding bodies or institutions acting in a legislative capacity as public authorities can no longer be exercised where the legislative process in question has ended.

Conclusion

In the light of the foregoing considerations, I suggest that the Court should answer question 1 raised by the Verwaltungsgericht Berlin as follows:

For the purposes of Article 2(2) of Directive /4/EC of the European Parliament and of the Council of 28 January on public access to environmental information and repealing Council Directive 90//EEC, an executive body is excluded from the exception in the first sentence of Article 2(2) of that directive when adopting regulatory instruments pursuant to enabling powers contained in a legal rule of a higher rank, unless the procedure for adopting such instruments guarantees a right of access to environmental information in such a way that the objectives of Directive /4 have been achieved in a way comparable to that provided by the procedure for adopting legislative acts. The burden of demonstrating that that is so lies with the executive body seeking to rely upon that exception. It is for the national court to verify that the objectives of Directive /4 have been satisfied, taking account in particular of the objectives of transparency and public scrutiny.

There is no need to answer question 2.


(1) Original language: English.

(2) I shall also use the term ‘regulatory instruments’ when referring to such measures in this Opinion.

(3) See point 51 below.

(4) Case C/09 [] ECR, paragraph  See also points 47 and 48 of my Opinion in that case.

(5) Directive /4/EC of the European Parliament and of the Council of 28 January on public access to environmental information and repealing Council Directive 90//EEC (OJ L 41, p. 26). Directive 90/ on the freedom of access to information on the environment made provision for access to environmental information held by public authorities from 1 January

(6) The Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters (‘the Aarhus Convention’ or ‘the Convention’) was signed on 25 June and approved on behalf of the European Community by Council Decision //EC of 17 February (OJ L , p. 1).

(7) Council Directive 85//EEC of 27 June on the assessment of the effects of certain public and private projects on the environment (OJ L , p. 40) (‘the EIA Directive’).

(8) See point 5 above.

(9) Paragraph 1(1)(1), (2)(2), (3)(1) and (3)(3) to (3)(5) of the Energieverbrauchskennzeichnungsgesetz (‘Law on energy consumption labelling’) of 30 January , as amended by the regulation of 31 October (the ‘EnVKG’).

(10) The Erste Verordnung zur Änderung der Pkw-Energieverbrauchskennzeichnungsverordnung (‘First Regulation amending the Regulation on energy-consumption labelling of motor cars’) of 22 August (‘the regulation of 22 August ’).

(11) See point 7 above.

(12) See recital 7 in the preamble to Directive /4 and Flachglas Torgau, cited in footnote 4 above, paragraph  See also point 59 below.

(13) Case C/03 TenKateHoldingMusselkanaalandOthers [] ECR I, paragraph 25 and the case-law cited.

(14) Case C/09 Genc [] ECR I, paragraph 

(15) Case C/06 Burda [] ECR I, paragraph 

(16) See, for example, Joined Cases C/98 P and C/98 P NetherlandsandVanderWal v Commission [] ECR I-1, paragraph 27, and Joined Cases C/07 P, C/07 P and C/07 P SwedenandOthers v APIandCommission [] ECR I, paragraph 36, both concerning access to documents. See also Case C/96 Mecklenburg [] ECR I, paragraph 25, concerning the interpretation of Article 2(a) and Article 3(2), third indent, of Council Directive 90//EEC (the predecessor to Directive /4).

(17) See paragraph 38 and the case-law cited.

(18) See recital 5 in the preamble to Directive /4. See also FlachglasTorgau, cited in footnote 4 above, paragraph 30 and the case-law cited.

(19) See point 42 of my Opinion in FlachglasTorgau.

(20) See the recitals to the Convention cited in point 3 and see in particular recital 1 in the preamble to Directive /4, cited in point 11 above.

(21) See points 30 and 31 of my Opinion in FlachglasTorgau.

(22) See recital 16 in the preamble to Directive /4, cited in point 11 above.

(23) See FlachglasTorgau, cited in footnote 4 above, paragraph 

(24) In its written observations the German Government states that in the years between and   regulatory instruments were adopted while primary acts were promulgated in the same period.

(25) See recital 2 in the preamble to the Convention, cited in point 3 above.

(26) See, with regard to judicial activities, Sweden and Others v API and Commission, cited in footnote 16 above, paragraphs 92 and  It does not necessarily follow, however, that a right to request procedural documents will automatically and in all contexts disturb the desired ‘atmosphere of serenity’ for the conduct of proceedings – see, for example, with regard to the European Court of Human Rights, Article 40(2) of the European Convention on Human Rights.

(27) Case C/04 IATAandELFAA [] ECR I, paragraph 

(28) The Commission refers to Joined Cases C/09 to C/09, C/09 and C/09 Boxus and Roua [] ECR I, and Case C/97 WWFand Others [] ECR I, paragraph 

(29) Case C/98 Linster [] ECR I, paragraph 

(30) FlachglasTorgau, cited in footnote 4 above, paragraph 31 and the case-law cited.

(31) FlachglasTorgau, cited in footnote 4 above, paragraph  See also points 30 and 54 of my Opinion in that case.

(32) FlachglasTorgau, cited in footnote 4 above, paragraphs 52 to  See also points 66 to 76 of my Opinion in that case.

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Part of Act of (Statute)

PUBLIC HEALTH CODE (EXCERPTS)

STATUTE

 

Act of

 

           

            History:  , Act , Eff. Sept. 30,

 

                                            The People of the State of Michigan enact:

 

                                 PART   WATER SUPPLY AND SEWER SYSTEMS

 

  Definitions used in to

            Sec. (1) As used in sections to

            (a) "Person" means a person as defined in section or a governmental entity.

            (b) "Pump" means a mechanical equipment or device used to remove water from a well.

            (c) "Pump installer" means a person who is qualified to engage in the installation, removal, alternation, or repair of water well pumping equipment in connection with a water well.

            (d) "Well" means an opening in the surface of the earth for the purpose of removing fresh water or a test well, recharge well, waste disposal well, or a well used temporarily for dewatering purposes during construction.

            (2) In addition, article 1 contains general definitions and principles of construction applicable to all articles in this code.

            History:  , Act , Eff. Sept. 30,

 

  Applicability of to

            Sec. (1) Sections to shall not apply to:

            (a) A well, pump, or other equipment used temporarily for dewatering purposes during construction when the well is not more than 2 inches in diameter and not more than 25 feet in total depth below the natural ground surface or is used in the relief of artesian pressure at hydroelectric projects or is used with the drilling of oil or gas wells.

            (b) A brine, test, storage, or disposal well regulated pursuant to Act No. of the Public Acts of , being sections to of the Michigan Compiled Laws.

            (2) Sections to shall not prevent a person from constructing a well or installing a pump on property owned or leased by the person which is intended for use only in a single family house which is that person's permanent residence, or intended for use only for farming purposes on that person's farm, and where the waters to be produced are not intended for use by the public or in any residence other than his or her own.  The person shall submit the drilling record required by section and comply with the rules and construction code promulgated under section

            (3) Sections to shall not restrict a mater plumber licensed under Act No. of the Public Acts of , as amended, being section to of the Michigan Compiled Laws, from engaging in the licensee's legally recognized trade.  A licensed master plumber may perform the work of a pump installer prescribed in sections to or rules and construction code promulgated under section without a certificate of registration as a pump installer.

            History:  , Act , Eff. Sept. 30,

 

  Certificate of registration as well drilling contractor, pump installer, water well drilling contractor, or dewatering well pump installer; application; fees; exemption.

            Sec. (1) Before engaging in the business of well drilling or pump installing, a person shall obtain a certificate of registration annually as a well drilling contractor or pump installer, using an application prepared by the department.

            (2) Before engaging in the business of constructing dewatering wells or installing dewatering well pumps, a person shall obtain a certificate of registration annually as a water well drilling contractor limited to the construction of dewatering wells or as a dewatering well pump installer, using an application prepared by the department.

            (3) The applicant shall pay a registration fee with the application.  The initial registration fee and the annual renewal registration fee for a well drilling contractor is $ and for a pump installer is $  A well drilling contractor shall pay an additional annual fee of $ for each additional drilling machine.  A registered well drilling contractor may do any of the work of a pump installer without payment of the fee for a pump installer.

            (4) A county, city, village, township, or other governmental unit engaged in well drilling or pump installing shall be registered under sections to , but shall be exempt from paying the registration fees if the drilling or installing is done by regular employees of, and with equipment owned by, the governmental unit and the work is on wells or pumps intended for use by the governmental unit.

            History:  , Act , Eff. Sept. 30,

 

  Certificate of registration; issuance; nontransferable; expiration;  renewal; examination; eligibility; reciprocity.

            Section (1) The department shall issue certificates of registration to well drilling contractors and pump installers who meet the requirements of sections to

            (2) A certificate of registration is not transferable and expires on April 30 of each year.  After July 1 of each year a certificate of registration may be renewed only upon application for renewal and payment of a fee of 50% of the basic registration fee in addition to the regular registration fee.

            (3) A new applicant for a certificate of registration shall be examined in accordance with the rules and construction code promulgated under section   The advisory board created by section shall determine and advise the department as to the eligibility of a well drilling contractor or pump installer for registration.  A well drilling contractor or pump installer which is a firm, partnership, or corporation shall designate at least 1 partner, officer, or responsible full-time employee to take the examination on its behalf.

            (4) The department, upon application and payment of the prescribed fees, may issue a certificate of registration as a well drilling contractor or a pump installer to a person who holds a similar certificate of registration in another state or a foreign country, if the requirements for the registration of a well drilling contractor and pump installer under which the certificate of registration was issued do not conflict with this part, are of a standard not lower than that specified by the rules and construction code promulgated under section , and if equal reciprocal privileges are granted to a registrant of this state.

            History:  , Act , Eff. Sept. 30,

 

  Numbers, seal, and words to be placed on well drilling machine.

            Sec. A well drilling contractor shall place the registration number, including the county code number for the business location, in figures not less than 2 inches high in a conspicuous location on both sides of the contractor's well drilling machine.  A seal furnished by the department designating the year the certificate of registration was issued or renewed and the words "Michigan registered water well drilling contractor" shall be affixed directly adjacent to the registration number.

            History:  , Act , Eff. Sept. 30,

 

  Record required; contents; copies; forms; sufficiency of record for       drive point well.

            Sec. Not later than 60 days after the completion of a well, a well drilling contractor shall provide the owner with a copy and the department, or local health department, with 2 copies of a record indicating the well owner's name, location of the well, well depth, geologic materials and thicknesses of materials penetrated, amount of casing, static water levels, and any other information which may be required by the rules and construction code promulgated under section   The department or local health department shall sent 1 copy of the record to the director of the department of natural resources not later than 30 days after its receipt from the well drilling contractor.  Standard forms for the record shall be provided by the department or the contractor's forms may be used if approved by the department.  A record for a drive point well where no earth materials are removed from the well bore is sufficient if the owner's name, well location, depth, casing static water level, and screen data are stated.

            History:  , Act , Eff. Sept. 30,

 

  Entering and inspecting installation.

            Sec. The department or local health department may enter and inspect, at reasonable hours, an installation on public or private property for the development or abandonment of ground water supplies.

            History:  , Act , Eff. Sept. 30,

  Inspection of violation; order; notice of suspension of certificate of registration; petition for hearing; revocation of certificate of registration.

            Sec. (1) When the department or local health department determines that there are reasonable grounds to believe there has been a violation of section to or a rule or the construction code promulgated under section , the department or the local health department shall investigate the violation.  If the department or local health department establishes that a violation has been committed, the department or the local health department shall order the responsible person to make the proper corrections.

            (2) When the department finds that the holder of a certificate of registration has engaged in a practice in violation of sections to or a rule, construction code, or order issued pursuant to those sections, the department may give written notice to the holder of the certificate of registration that the certificate of registration is suspended.  A person who receives notice from the department that his or her certificate of registration is suspended, upon request, shall be granted a hearing before the department or an authorized representative of the department.  If a petition for a hearing is not filed within 30 days after the day on which the certificate of registration was suspended, the certificate of registration is automatically revoked.

            History:  , Act , Eff. Sept. 30,

 

  Advisory board; creation; appointment and qualifications of       members.

            Sec. An advisory board of 9 members is created in the department composed of the following: 5 members who are residents of this state registered under section to , at least 4 of whom are well drilling contractors, and who shall be appointed by the governor with the advice and consent of the senate; an employee of the bureau of environmental and occupational health of the department, and a representative of a local health department, each to be appointed by the director; an employee of the geological survey section of the department of natural resources appointed by the director of the department of natural resources; and an employee of the water resources commission.  Of 4 well drilling contractors 1 shall be from each of 4 geographic regions:

            (a) Region 1:  The Upper Peninsula

            (b) Region 2:  That part of the Lower peninsula bordered on the south by Oceana, Newaygo, Mecosta, Isabella, Midland, and Bay counties and the area north of those counties.

            (c) Region 3:  the area bordered on the north and west by Huron, Tuscola, Saginaw, Shiawassee, Livingston, Washtenaw, and Lenawee counties and the area south and east of those counties.

            (d) Region 4:  The area bordered on the east and north by Hillsdale, Jackson, Ingham, Clinton, Gratiot, Montcalm, Kent, and Muskegon counties and the area south and west of those counties.

            History:  , Act , Eff. Sept. 30,

 

  Advisory board; terms of members; vacancies.

            Sec. Each member of the advisory board shall be appointed for a 3-year term.  The terms of the 5 members registered under sections to shall alternate so that not more than 2 are appointed each year, except that of the first appointees, 1 shall be appointed for 1 year and 2 each shall be appointed for 2 and 3 years.  The terms of the members representing the department of natural resources, the water resources commission, and the local health department shall alternate so that only 1 is appointed each year, except that of the first appointees 1 member shall be appointed for 1 year, 1 for 2 years, and 1 for 3 years.  Vacancies shall be filled by appointment for the balance of the unexpired terms by the representative officials designated in section

            History:  , Act , Eff. Sept. 30,

 

  Advisory board; election of chairperson; secretary; number of meetings; quorum; conducting business at public meeting; notice of meeting; compensation and expenses.

            Sec. (1) The members of the advisory board, as soon as appointed, shall organize and elect from their number a chairperson.  Thereafter, annually when new members are appointed to the board, a chairperson shall be elected at the next board meeting.   The member from the department shall be the secretary of the board.

            (2) The board shall hold not less than 1 meeting each year for the purpose of examining candidates for registration.  Additional meetings may be called by the chairperson or director as may be reasonably necessary to carry out sections to   Five members shall constitute a quorum.  The business which the advisory board may perform shall be conducted at a public meeting of the advisory board held in compliance with Act No. of the Public Acts of , as amended, being sections to of the Michigan Compiled Laws.  Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. of the Public Acts of , as amended.

            (3) The per diem compensation of the members of the advisory board registered under sections to shall be established annually by the legislature.  Expenses shall be reimbursed pursuant to section

            History:  , Act , Eff. Sept. 30,

 

  Rules and construction code.

            Sec. The department, with the advise of the advisory board, shall promulgate rules and a construction code reasonably necessary to implement sections to   The rules and construction code shall include provisions for qualifications and examination of well drilling contractors and pump installers, standards for the construction and installation of developments of ground water supplies, dewatering wells, abandonment of wells and dewatering wells, and for the administration of sections to

            History:  , Act , Eff. Sept. 30,

 

  Violation as misdemeanor; penalties; prosecution.

            Sec. (1) Except as provided in subsection (2), a person who violates sections to , a rule or the construction code promulgated under section , or an order issued by the department or local health department under sections to is guilty of a misdemeanor.

            (2) A member of the advisory board who intentionally violates section (2) shall be subject to the penalties prescribed in Act No. of the Public Acts of , as ;amended.

            (3) The attorney general or local prosecuting attorney shall be responsible for prosecuting a person who violates sections to

            History:  , Act , Eff. Sept. 30,

Sours: https://www.michigan.gov/egle/0,,__,html
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