Case C-145/01: Action brought on 29 March 2001 by the Commission of the European Communities against the Italian Republic
Date: 2001-06-16
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, labour law, transfer of businesses, worker information

C 173/26

EN

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.

16.6.2001

EN

Official Journal of the European Communities

C 173/27

So far as concerns those undertakings in respect of which the
CIPI has made a finding of economic crisis within the meaning
of Law No 675/77, it must be observed that Article 4a(3) of
Directive 77/187 provides, so far as undertakings in grave
economic crisis are concerned, that Member States may apply
paragraph 2(b) to any transfers where the transferor is in a
situation of serious economic crisis, as defined by national law,
provided that the situation is declared by a competent public
authority and open to judicial supervision, on condition that
such provisions already exist in national law by 17 July 1998.
According to a Joint Declaration of the Commission and the
Council on the adoption of Directive 98/50, only Italy had
legislation of that type. Furthermore, in that event also the
principle that workers’ rights should be protected remains
untouched. That principle is not observed by the contested
Italian legislation, which provides sic et simpliciter for the
disapplication of Directive 77/187.

preclude the application of the provision, created by the
amendment to the Wiener Abgabenordnung (Vienna Tax
Code, WAO) of 2 March 2000, LGBI. No 9/2000, and
applicable also to tax liabilities which arose before promulgation of
that amendment, in Paragraph 185(3) of the WAO, under which
there is no claim to repayment where the economic burden of
the duty was borne by a person other than the taxable person?

(1) OJ L 76 of 23.3.1992, p. 1.

(1) OJ 1977 L 61, p. 26.

Action brought on 4 April 2001 by the Hellenic Republic
against the Commission of the European Communities

(Case C-148/01)

(2001/C 173/46)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 4 April 2001 by the Hellenic Republic
represented by Vasilios Kontolaimos, legal Adviser in the State
Legal Service, and Khrisoula Tsiavou, Legal Agent of that
Service, with an address for service in Luxembourg at the
Greek Embassy, 117 Val Sainte-Croix.

The applicant claims that the Court should:

— grant the application;

— annul or, in the alternative, amend Commission Decision
C(2001) 198 Final of 1 March 2001 excluding from
Community financing certain expenditure incurred by
the Member States under the Guarantee Section of the
European Agricultural Guidance and Guarantee Fund
(EAGGF).

Pleas in law and main arguments

The Hellenic Republic contends that a financial correction has
been imposed upon it unlawfully so far as concerns the
amount of the interest due for late payment of the additional
levy in the milk and milk products sector.

The Hellenic Republic contends that the proposed financial
correction should be annulled because the applicable legal
provisions have been misinterpreted and the statement of
reasons is insufficient.

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof by order of that court of 23 March 2001 in
the case of (1) Weber’s Wine World HandelsgesmbH,
(2) Ernestine Rathgeber, (3) Karl Schlosser, (4) Beta-
Leasing GmbH v Abgabenberufungskommission Wien

(Case C-147/01)

(2001/C 173/45)

Reference has been made to the Court of Justice of the
European Communities by an order of the Verwaltungsgericht-
shof (Administrative Court), Austria, of 23 March 2001, which
was received at the Court Registry on 2 April 2001, for a
preliminary ruling in the case of (1) Weber’s Wine World
HandelsgesmbH, (2) Ernestine Rathgeber, (3) Karl Schlosser,
(4) Beta-Leasing GmbH v Abgabenberufungskommission Wien
on the following question:

Do Article 10 EC (formerly Article 5 of the EC Treaty) and
point 3 of the operative part of the judgment of the Court of
Justice of the European Communities of 9 March 2000 in Case
C-437/97 Evangelischer Krankenhausverein Wien v Abgaben-
berufungskommission Wien and Wein & Co. HandelsgesmbH,
formerly Ikera Warenhandelsgesellschaft mbH v Oberöster-
reichische Landesregierung [2000] ECR I-1157, according to
which Article 3(2) of Directive 92/12/EEC (1) may not be relied
on in support of claims relating to a tax such as the duty on
alcoholic beverages paid or chargeable prior to the date of that
judgment, except by claimants who before that date initiated
legal proceedings or raised an equivalent administrative claim,