Case C-439/00: Action brought on 28 November 2000 by the Commission of the European Communities against the French Republic
Date: 2001-01-27
Institutions: Court of Justice
Subjects: France, action for failure to fulfil an obligation, ad hoc committee, award of contract, energy transport, water supply

C 28/22

EN

Official Journal of the European Communities

27.1.2001

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that court of 21 November
2000 in the criminal proceedings against G. Cuomo

3.

(Case C-434/00)

(2001/C 28/42)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
the Netherlands) of
der Nederlanden (Supreme Court of
21 November 2000, received at
the Court Registry on
27 November 2000, for a preliminary ruling in the criminal
proceedings against G. Cuomo on the following questions:

1. What is to be understood by ‘leaves’ or ‘ceases to be
covered by’ (onttrekken) the external transit procedure
within the meaning of the third subparagraph of Article
5(1) of the Directive on products subject to excise duty (1)
and of Article 7(3) of the Sixth Directive (2), where such
leaving or cessation is irregular — that is to say, it occurs
otherwise than by declaring the goods for release for free
circulation:

(a)

is it
the first action in relation to the goods
which contravenes a provision connected with that
procedure, and is the presence of an intention to
place the goods — partly by that action — on the
Community market in breach of that provision
relevant; or

(b) does it occur (only) when the goods — in this case
after breaking the seal — are unloaded from the
vehicle without satisfying the requirement to pro-
duce the goods together with the relevant document
at the office of destination in accordance with Article
22(1) of Regulation (EEC) No 2726/90 (OJ 1990
L 262, p. 1), and is the presence of an intention to
place the goods — partly by that action — on the
Community market in breach of Community law
relevant; or

(c) must ‘leaves’ or ‘ceases to be covered by’ be taken to
refer to all the actions (taken together) resulting in
the goods being placed unlawfully on the Com-
munity market?

2.

If the answer to the first question is as indicated in (c),
where does the ‘leaving’ or ‘cessation of coverage’ occur:
where the first unlawful action is performed or where a
subsequent action is performed, in particular where the
goods — in this case after breaking the seal — are
unloaded from the vehicle?

For the purposes of the application of criminal law, may
‘leaves’ or ‘ceases to be covered’ also be taken to refer
to the mere placing and transport of goods under a
Community customs procedure where a third country, as
referred to in the directive, is entered as the destination
of that transport operation in the accompanying docu-
ments but the intention of placing the goods on the
market in another Member State was present at the start
of the transport operation?

(1) Council Directive 92/12/EEC of 25 February 1992 on the general
arrangements for products subject to excise duty and on the
holding, movement and monitoring of such products (OJ 1992
L 76, p. 1).

(2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1).

Action brought on 28 November 2000 by the Com-
mission of the European Communities against the French
Republic

(Case C-439/00)

(2001/C 28/43)

An action against the French Republic was brought before the
Court of Justice on 28 November 2000 by the Commission of
the European Communities, represented by Michel Nolin, of
its Legal Service, acting as Agent, with an address for service
in Luxembourg at the office of Carlos Go´ mez de la Cruz,
Wagner Centre, Kirchberg.

The Commission of the European Communities claims that
the Court should:

— declare that, by failing to adopt all the laws, regulations
and administrative measures necessary in order to comply
with Directive 98/4/EC of the European Parliament and
of the Council of 16 February 1998 amending Directive
93/38/EEC coordinating the procurement procedures of
entities operating in the water, energy, transport and
telecommunications sectors (1), or at all events by failing
to communicate the same to the Commission, the French
Republic has failed to comply with its obligations under
that directive;

— order the French Republic to pay the costs.

27.1.2001

EN

Official Journal of the European Communities

C 28/23

Pleas in law and main arguments

The pleas in law and main arguments are similar to those
advanced in Case C-407/00 (2); the transposition period expired
on 16 February 1999.

Reference for a preliminary ruling by the Tribunal
Superior de Justicia de Castilla-La Mancha, Sala de lo
Social, by order of that court of 27 October 2000 in the
case of A´ ngel Rodrı´guez Caballero against Fondo de
Garantı´a Salarial (FOGASA)

(1) OJ L 101 of 1.4.1998, p. 1.
(2) See p. 13 of this Official Journal.

Action brought on 29 November 2000 by the Com-
mission of the European Communities against the United
Kingdom of Great Britain and Northern Ireland

(Case C-441/00)

(2001/C 28/44)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 29 November 2000 by the
Commission of the European Communities, represented by
Marie Wolfcarius, Legal Adviser, acting as agent, with an
address for service in Luxembourg at the office of Carlos
Go´ mez de la Cruz, Centre Wagner.

The Applicant claims that the Court should:

— declare that by failing to adopt the laws, regulations
or administrative provisions necessary to comply with
Council Directive 96/48/EC (1) of 23 July 1996 on the
interoperability of the trans-European high-speed rail
system,
its
obligations under that Directive.

the United Kingdom has failed to fulfil

— order the United Kingdom to pay the costs.

Pleas in law and main arguments

Article 249 EC (ex Article 189 of the EC Treaty), under which
a directive shall be binding as to the result to be achieved,
upon each Member State, carries by implication an obligation
on the Member States to observe the period for compliance
laid down in the directive. That period expired on 8 April 1999
without the United Kingdom having enacted the provisions
necessary to comply with the directive referred to in the
conclusions of the Commission.

(Case C-442/00)

(2001/C 28/45)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunal Superior de
Justicia, Sala de lo Social
Justice, Social
Chamber), Castilla-La Mancha, Spain, of 27 October 2000,
received at the Court Registry on 30 November 2000, for a
preliminary ruling in the case of A´ ngel Rodrı´guez Caballero
against Fondo de Garantı´a Salarial (Wages Guarantee Fund,
FOGASA) on the following questions:

(High Court of

(a)

(b)

(c)

Should a concept of the kind at issue in the present
proceedings, namely remuneration which is payable by
the employer to the employee as a result of the dismissal
being unfair, be regarded as
falling within those
‘employees’ claims arising from contracts of employment
or employment relationships’ referred to in Article 1(1)
of Council Directive 80/987/EEC (1) of 20 October 1980
on the approximation of the laws of the Member States
relating to the protection of employees in the event of
the insolvency of their employer?

In the affirmative, is there an obligation under Article
1(1) of Directive 80/987 to determine employees’ claims
by way of either a judicial decision or an administrative
decision, and should such claims include all
those
employee claims upheld in the course of any other
procedure recognised at law and judicially reviewable,
such as conciliation, a compulsory procedure conducted
before a court, which must encourage the parties to
negotiate before commencing any legal proceedings and
approve the terms of any agreement, and may prevent an
agreement being concluded if it considers that the terms
of the agreement would seriously prejudice one of the
parties or amount to a circumvention of the law or an
abuse of process?

In the event that post-dismissal remuneration agreed
upon in a court-supervised conciliation and approved by
the court does fall within the scope of ‘employees’ claims’,
may the national court responsible for giving judgment
in the proceedings refrain from applying a provision of
national law which excludes the employee’s claim for
such remuneration from the scope of matters for which
the national state guarantee institution, the Fondo de
Garantia Salarial, is responsible and apply Article 1(1) of
the directive directly on the ground that it considers the
provision to be clear, precise and unconditional?

(1) OJ L 235, 17.9.1996, p. 6.

(1) OJ L 283, 28.10.1980, p. 23.