Case C-165/01: Reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court) of the Austrian Republic by decision of that Court of 14 March 2001 in the case of Betriebsrat der Vertretung der Europäischen Kommission in Österreich (Works council of the Representation of the European Commission in Austria) v Commission of the European Communities
Date: 2001-07-14
Institutions: Court of Justice
Subjects: Austria, interpretation of the law, labour law, occupational status, servant (EU), social legislation

C 200/40

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Official Journal of the European Communities

14.7.2001

— As regards examination of the merits, the CFI failed to
comply with its obligation to stay within the limits of
the application and exceeded them, thereby infringing
Community law.

— The CFI also infringed Article 33(1), second sentence,
ECSC in that it failed to examine whether there had been
failure by the Commission to observe a
a manifest
relevant provision and failed to appreciate that
the
application did not even satisfy the requirement to show
the alleged manifestness of the infringement.

— Furthermore, the CFI infringed Article 33(1) ECSC in so
far as it annulled the contested decision as a whole and
not merely with regard to the part of the decision with
which the CFI found fault, namely the authorisation of
the merger of RAG with SBW, not the merger with
Preussag Anthrazit GmbH.

— Finally, the CFI infringed its duty to state reasons, because
it did not adequately deal with the arguments submitted
by the Commission and the interveners in their pleadings
and at the hearing, even though they related to main
grounds of the decision.

(1) Not yet published in the European Court Reports.

— order the European Commission to compensate him for

material and non-material damage;

— order the Commission to pay the costs.

Pleas and main arguments

— Breach of the right to a fair hearing: Before the decision
was taken to transfer him, the appellant was approached
in vague and general terms by his line manager for alleged
lack of care and attention in his work, which was
subsequently contradicted in his staff report. It was thus
that, without being heard beforehand and without the
chance to make any comments, a decision to transfer him
was taken by the appointing authority.

Reference for a preliminary ruling from the Oberster
Gerichtshof (Supreme Court) of the Austrian Republic by
decision of that Court of 14 March 2001 in the case of
Betriebsrat der Vertretung der Europäischen Kommission
in O¨ sterreich (Works council of the Representation of
the European Commission in Austria) v Commission of
the European Communities

Appeal brought on 12 April 2001 by Franco Campoli
against the judgment delivered on 6 March 2001 by the
Fifth Chamber of the Court of First Instance of the
European Communities in Case T-100/00 between Franco
Campoli and Commission of the European Communities

(Case C-165/01)

(2001/C 200/74)

(Case C-161/01 P)

(2001/C 200/73)

An appeal against the judgment delivered on 6 March 2001
by the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-100/00 between Franco
Campoli and the Commission of the European Communities
was brought before the Court of Justice of the European
Communities on 12 April 2001 by Franco Campoli, represent-
ed by S. Diana, lawyer, with an address for service in Brussels.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of

6 March 2001 in Case T-100/00;

— annul the two decisions taken by Mr Lemmel (No 05266
of 11 June 1999 and of 2 December 1999), concerning
the removal of Franco Campoli and the appointment of
Chantal Bruetschy to the ‘Foodstuffs — Legislation and
scientific and technical aspects’ unit;

Reference has been made to the Court of Justice of the
European Communities by a decision of the Oberster Gericht-
shof of 14 March 2001, which was received at the Court
Registry on 18 April 2001, for a preliminary ruling in the case
of Betriebsrat der Vertretung der Europäischen Kommission in
O¨ sterreich (Works council of
the
the Representation of
European Commission in Austria) v Commission of
the
European Communities, on the following questions:

1.

Is Article 79 of the Conditions of Employment of Other
Servants of the European Communities [Article 3 of
Council Regulation (EEC, Euratom, ECSC) No 259/68 of
29 February 1968 (1)], under which the conditions of
employment of local staff, in particular: (a) the manner of
their engagement and termination of their contract, (b)
their leave, and (c) their remuneration is to be determined
by each institution in accordance with current rules and
practice in the place where they are to perform their
duties, to be understood as a reference to the relevant
national
in the case of
Austria, also requires the application of the law on labour
relations in the workplace laid down in Part II of the
Austrian Arbeitsverfassungsgesetz (Labour Constitution
Act)?

law on employment, which,

14.7.2001

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Official Journal of the European Communities

C 200/41

2. Are the provisions of Article 9 of the Staff Regulations
of the European Communities (Article 2 of Council
Regulation (EEC, Euratom, ECSC) No 259/68 of 29 Febru-
ary 1968) and those contained in Annex II to the Staff
Regulations concerning the Staff Committee, which also
represents the interests of local staff of the Communities,
to be interpreted as laying down exhaustive rules on
collective employment law and the powers of co-decision
of local staff and thus as precluding the application of the
law on labour relations in the workplace laid down in the
Austrian Labour Constitution Act to local staff serving in
the Vienna representation of the Commission of the
European Communities?

(1) OJ 1968, L 56, p. 1.

Reference for a preliminary ruling by the Kantongerecht
te Amsterdam by order of 5 February 2001 in the case of
Kamer van Koophandel en Fabrieken voor Amsterdam
and Inspire Art Ltd

(Case C-167/01)

(2001/C 200/75)

Reference has been made to the Court of Justice of the
European Communities by order of 5 February 2001 by the
Kantongerecht te Amsterdam (Amsterdam Cantonal Court),
which was received at the Court Registry on 19 April 2001,
for a preliminary ruling in the case of Kamer van Koophandel
en Fabrieken voor Amsterdam and Inspire Art Ltd on the
following questions:

1.

Is (the new) Article 43 in conjunction with Article 48 of
the Treaty establishing the European Community to be
interpreted as precluding the Netherlands, pursuant to
the Wet op de formeel buitenlandse vennootschappen of
17 December 1997, from attaching additional conditions,
such as those laid down in Articles 2 to 5 of that law, to
the establishment in the Netherlands of a branch of a
company which has been set up in the United Kingdom
with the sole aim of securing the advantages which that
offers compared to incorporation under Netherlands law,
given that Netherlands law imposes stricter rules than
those applying in the United Kingdom with regard to the
setting-up of companies and payment for shares, and
given that the Netherlands law infers that aim from the
fact that the company carries on its activities entirely or
almost entirely in the Netherlands and, furthermore, does
not have any real connection with the State in which the
law under which it was formed applies?

2.

If, on a proper construction of those articles of the Treaty,
it is held that the provisions of the Wet op de formeel
buitenlandse vennootschappen are incompatible with
them, must Article 46 of the Treaty be interpreted as

meaning that the said Articles 43 and 48 do not affect
the applicability of the Netherlands rules laid down in
that law, on the ground that the provisions in question
are justified for the reasons stated by the Netherlands
legislature?

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by decision of 11 April 2001 in the case of
Bosal Holding BV and Staatssecretaris van Financiën

(Case C-168/01)

(2001/C 200/76)

Reference has been made to the Court of Justice of the
European Communities by decision of 11 April 2001 by
the Hoge Raad der Nederlanden (Supreme Court of
the
Netherlands), which was received at the Court Registry on
19 April 2001, for a preliminary ruling in the case of Bosal
Holding BV and Staatssecretaris van Financiën on the following
questions:

1. Does Article 52 of the EC Treaty, read in conjunction
with Article 58 thereof (now, following amendment,
Article 43 EC, read in conjunction with Article 48
thereof), or any other rule of EC law, preclude a Member
State from granting a parent company subject to tax in
that Member State a deduction on costs relating to a
holding owned by it only if the relevant subsidiary
company makes profits which are subject to tax in
the Member State in which the parent company is
established?

2. Does it make any difference to the answer to Question 1
if, where the subsidiary company is subject to tax based
on its profits in the Member State concerned but the
parent company is not, the relevant Member State takes
no account of the abovementioned costs in levying tax
on the subsidiary company?

Appeal brought on 19 April 2001 by Compan˜ ı´a Interna-
cional de Pesca y Derivados SA (INPESCA) against the
judgment delivered on 7 February 2001 by the Court of
First Instance of the European Communities (Second
Chamber) in Case T-186/98 between Compan˜ ı´a Interna-
cional de Pesca y Derivados SA (INPESCA) and the
Commission of the European Communities

(Case C-170/01 P)

(2001/C 200/77)

An appeal against the judgment delivered on 7 February 2001
by the Court of First Instance of the European Communities