Cases C-138/01 and C-139/01: Reference for a preliminary ruling by the Oberster Gerichtshof der Republik Österreich, by orders of 28 February and 14 February 2001 in the cases of Christa Neukomm against Österreichischer Rundfunk and Josef Lauermann against Österreichischer Rundfunk
Date: 2001-06-16
Institutions: Court of Justice
Subjects: EU law - national law, disclosure of information, fundamental rights, interpretation of the law, pay, personal data

16.6.2001

EN

Official Journal of the European Communities

C 173/25

mean exclusively the European Community’s own
legislation? Or may national legislation too, such as
certain provisions of the Kaivoslaki and the Jätease-
tus in force in Finland, be ‘other legislation’ within
the meaning of the Waste Directive?

Reference for a preliminary ruling by the Employment
Tribunal (Leeds), by order of that court of 12 January
2001, in the case of 1) Mr P. Breckon 2) Mr M. Barrett
against Secretary of State for Employment

(b)

(c)

If ‘other legislation’ means also national legislation,
does that mean exclusively national
legislation
which was already in force at the time of entry into
force of the Waste Directive 91/156/EEC or also
that only enacted afterwards?

If ‘other legislation’ means also national legislation,
do fundamental European Community provisions
relating to environmental protection or the prin-
ciples of the Waste Directive set requirements for
national legislation concerning the level of environ-
mental protection as a condition for disapplying
the rules of the Waste Directive? What sort of
requirements could those be?

(1) OJ L 194 of 25.7.1975, p. 39.
(2) OJ L 78 of 26.3.1991, p. 32.

Reference for a preliminary ruling by the Tribunale di
Bologna by order of that court of 20 February 2001 in
the case of Condominio ‘Facchini Orsini’ against Kone
Ascensori SpA

(Case C-129/01)

(2001/C 173/41)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Bologna
of 20 February 2001, received at the Court Registry on
21 March 2001, for a preliminary ruling in the case of
Condominio ‘Facchini Orsini’ against Kone Ascensori SpA on
the following question:

‘For the purposes of application of the provisions contained in
Council Directive 93/13/EEC (1) of 5 April 1993 on unfair
terms in consumer contracts published in Official Journal
1993 L 95, can the co-ownership of buildings referred to in
Articles 1117-1139 of
the Civil Code be regarded as a
consumer where the individual owners are natural persons or
are acting for purposes outside their trade, business or
profession?’

(1) OJ L 95 of 21.4.1993, p. 29.

(Case C-137/01)

(2001/C 173/42)

Reference has been made to the Court of Justice of the
European Communities by an order of
the Employment
Tribunal (Leeds) of 12 January 2001, which was received at
the Court Registry on 27 March 2001, for a preliminary ruling
in the case of 1) Mr P. Breckon 2) Mr M. Barrett against
Secretary of State for Employment, on the following question:

‘Are the requirements of Directive 80/987 (1) fully satisfied by
rules of national law which may result in a claim relating to
holiday pay against the Guarantee Institution being dismissed
owing to unforeseen delay in bringing about a state of
insolvency in the employer, which delay was caused by the
employer?’

(1) Council Directive 80/987/EEC 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 (OJ L 283, 28.10.1980, p. 23).

Reference for a preliminary ruling by the Oberster
Gerichtshof der Republik O¨ sterreich, by orders of
28 February and 14 February 2001 in the cases of Christa
Neukomm against O¨ sterreichischer Rundfunk and Josef
Lauermann against O¨ sterreichischer Rundfunk

(Cases C-138/01 and C-139/01)

(2001/C 173/43)

Reference has been made to the Court of Justice of the
European Communities by orders of the Oberster Gerichtshof
der Republik O¨ sterreich of 28 February and 14 February 2001,
received at the Court Registry on 27 March 2001, for a
preliminary ruling in the cases of Christa Neukomm against
O¨ sterreichischer Rundfunk and Josef Lauermann against O¨ ster-
reichischer Rundfunk on the following questions:

1. Are the provisions of Community law, in particular those
on data protection (Articles 1, 2, 6, 7 and 22 of Directive
95/46/EC (1)
in conjunction with Article 6 (formerly
Article F) of the Treaty on European Union and Article 8

C 173/26

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Official Journal of the European Communities

16.6.2001

of the ECHR), to be interpreted as precluding national
rules which require a public broadcasting corporation, as
a legal entity, to communicate, and a State body to collect
and pass on, data on income for the purpose of publishing
the names and income of employees of a broadcasting
corporation governed by public law?

2.

If the Court of Justice of the European Communities rules
that the answer to the above question is in the affirmative:
Are the provisions precluding national rules of the kind
described above directly applicable, in the sense that a
corporation obliged to disclose data may rely on them to
prevent the application of conflicting national rules,
and may not therefore raise, as against the employees
concerned by the disclosure, the fact that it is bound to
comply with national rules?

(1) OJ 1995 L 281, p. 31.

(b)

in the case of undertakings declared in a state of ‘crisi
aziendale’ (economic crisis), they do not provide, for
the transfer of the workforce and of the debts arising
from an employment contract or relationship from
the transferor to the transferee,

its obligations
the Italian Republic has failed to fulfil
under Council Directive 77/187/EEC (1) of 14 February
1977 on the approximation of the laws of the Member
States relating to the safeguarding of employees’ rights in
the event of transfers of undertakings, businesses or parts
of businesses, and in particular Articles 3 and 4 thereof;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 47(5) and (6) of Law No 428 of 1990 provides for the
non-application of the rules laid down by Directive 77/187, in
the following circumstances:

(a)

the undertaking concerned falls into one of the following
categories:

— undertaking or production unit in respect of which
the Comitato Interministeriale per la Politica Indus-
triale (Inter-ministerial committee on industrial pol-
icy — CIPI) has declared a state of economic crisis
in terms of Law No 675 of 1977;

Action brought on 29 March 2001 by the Commission of
the European Communities against the Italian Republic

— undertaking in bankruptcy;

(Case C-145/01)

(2001/C 173/44)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 29 March
2001 by the Commission of the European Communities,
represented by Antonio Aresu, acting as Agent.

The applicant claims that the Court should:

— Declare that, by failing maintaining in force the provisions
in Article 47(5) and (6) of Law No 428 of 29 December
1990, in so far as they:

(a)

provided for the non-application of the automatic
transfer of all employment contracts or relationships
from the transferor to the transferee, in the case of
undertakings which have been the subject of a deed
of arrangement involving the transfer of goods or in
cases of undertakings under extraordinary liqui-
dation, where the undertakings themselves continue
to carry on business after transfer;

— undertaking which has been the subject of a deed of
arrangement involving the transfer of goods;

— undertaking whose liquidation has been made

public;

— undertaking under extraordinary liquidation;

(b)

an agreement has been concluded between workers’
representatives and the employers, with regard to changes
to working conditions or maintaining partial employ-
ment.

The Commission takes the view that Italy lawfully disapplied
Directive 77/187 in respect of undertakings declared bankrupt
and those in liquidation. On the other hand, the derogation
for deeds of arrangement, extraordinary liquidation and the
declaration of a state of economic crisis appear to be clearly
contrary to Community law and the case-law of the Court of
Justice.

Directive 77/187 makes no provision for exemption from the
full effect of its provisions in respect of undertakings which
have been the subject of a deed of arrangement involving the
to extraordinary
transfer of goods or which are subject
administration, despite the Italian authorities views to the
contrary.