Case C-340/01: Reference for a preliminary ruling by the Oberster Gerichtshof, Republic of Austria, by order of that court on 25 June 2001, in the case of Carlito Abler and 21 others, intervener: Sanrest Großküchen-Betriebsgesellschaft mbH against Sodexho MM Catering Gesellschaft
Date: 2001-11-24
Institutions: Court of Justice
Subjects: approximation of laws, interpretation of the law, right to work, transfer of businesses, worker information

24.11.2001

EN

Official Journal of the European Communities

C 331/7

Reference for a preliminary ruling by the Oberster
Gerichtshof, Republic of Austria, by order of that court
in the case of Carlito Abler and
on 25 June 2001,
21 others, intervener: Sanrest Großküchen-Betriebsge-
sellschaft mbH against Sodexho MM Catering Gesellschaft

(Regional Court) Korneuburg of 4 September 2001, which was
received at the Court Registry on 11 September 2001, for a
preliminary ruling in the case of Pato Plastik Robert Frank
GmbH v CAROPACK Handelsgesellschaft mbH on the follow-
ing questions:

(Case C-340/01)

(2001/C 331/10)

1.1. Are plastic carrier bags ‘packaging’ within the meaning
of European Parliament and the Council Directive
94/62/EC 20 December 1994 (1), particularly Article 3(1)
thereof,

Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof,
Republic of Austria (Supreme Court) of 25 June 2001, received
at the Court Registry on 10 September 2001, for a preliminary
ruling in the case of Carlito Abler and 21 others, intervener:
Sanrest Großküchen-Betriebsgesellschaft mbH against Sodex-
ho MM Catering Gesellschaft, on the following question:

Is there a transfer of part of a business within the meaning of
Article 1 of Council Directive 77/187/EEC of 14 February
1977 (1) 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 where a hospital authority, which has previously
employed a catering undertaking to supply meals and bever-
ages to patients and hospital staff at a price based on a day of
catering per person, and to that end has made available to that
undertaking water and energy as well as its service premises
(hospital kitchen) together with the necessary equipment,
transfers, after giving notice of termination of that contract,
those operations and the assets previously made available to
that first catering undertaking to a second catering undertaking
which does not take over the assets (staff, stock, accounting
material and menu, diet, recipe or general records) brought in
by the first catering undertaking itself?

(1) OJ 1997 L 61, p. 26.

Reference for a preliminary ruling, by order of the
Landesgericht Korneuburg of 4 September 2001 in the
case of Pato Plastik Robert Frank GmbH v CAROPACK
Handelsgesellschaft mbH

(Case C-341/01)

(2001/C 331/11)

Reference has been made to the Court of Justice of the
the Landesgericht
European Communities by order of

(a)

(b)

if a retailer offers them as an article in the cash-
desk area and hands them over to customers upon
request against payment so that the purchased
goods can be taken away, or

if a retailer hands them over to customers for the
same purpose after the price has been paid for the
purchased goods, regardless whether customers ask
for them and without obligatory payment of any
extra charge, and they are then filled with the
purchased goods?

1.2.1. First additional question, in the event that one of the
above questions is answered in the affirmative on the
basis of the German version:

Is the result different if, for the definition of the word
‘packaging’ in Article 3(1) of the Directive, not the
German text, which only has the words ‘von Waren’,
but the French or Italian text [Or. 2] is deemed decisive,
which both refer to specific goods (‘marchandises
données’ and ‘determinate merci’), and are the plastic
carrier bags made by the plaintiff in this case not
packaging for the purposes of the Directive because
they are filled with any goods at all (rather than with
predetermined goods), and in this case which text
applies?

1.2.2. Second additional question, in the event that one of
the above questions is answered in the negative:

May the Austrian legislature or the Commission make
products which are not packaging under the Directive
subject to the rules governing packaging laid down in
the Directive or to similar rules?

2.

Is it in conformity with Community law for the operator
of the collection and recovery system set up in Austria to
charge a fee (Lizengebühr) even for carrier bags not
covered by Directive 94/62/EC solely on the ground that
the bags bear a mark (‘der Grüne Punkt’) over which the
operator disposes?