Case C-441/01: Action brought on 15 November 2001 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2002-02-02
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, occupational health, occupational safety

2.2.2002

EN

Official Journal of the European Communities

C 31/5

Action brought on 15 November 2001 by the Com-
the
mission of

the European Communities against
Kingdom of the Netherlands

where possible — an internal working conditions service must
be established is entirely immaterial, inasmuch as that rule
already follows from the combined provisions of Article 7(1)
and 7(3) and there was thus no need to reiterate it in
Article 7(6).

(Case C-441/01)

(2002/C 31/09)

(1) OJ L 183, 29.6.1989, p. 1.

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 November 2001 by the Commission of the European
Communities, represented by H. van Vliet and H. Kreppel,
acting as Agents.

Reference for a preliminary ruling by the Vestre Landsret
by order of 13 September 2001 in the case of Poul
Nørgaard v Skatteministeriet

The applicant claims that the Court should:

— Declare that, by authorising employers freely to choose
between internal and external health and safety services,
the Kingdom of the Netherlands has failed to fulfil its
obligations under the EC Treaty and under Article 7(3) of
Directive 89/391/EEC (1) on the introduction of measures
to encourage improvements in the safety and health of
workers at work;

— Order the Kingdom of the Netherlands to pay the costs

of the proceedings.

Pleas in law and main arguments

The Netherlands authorities err in challenging the Com-
mission’s interpretation of Article 7(3) to the effect that the
Directive does not confer on employers, in the organisation of
protective and preventive measures, the choice between using
competent members of their own staff and enlisting competent
external services, but rather establishes a hierarchy between
those two solutions with the objective criterion of whether or
not there are staff in the undertaking having the necessary
competence to carry out activities in the area of protection
against and prevention of occupational risks. It is clear from
the structure and wording of Article 7 of the Directive, in
particular Article 7(1), that the Community legislature has
provided that the employer must,
in principle, designate
persons within the undertaking to perform the tasks in
connection between
question.
Article 7(2), second sentence, and Article 7(3) that, even if an
employer might prefer to engage an outside company and
require his employees to work exclusively for the purposes of
the undertaking, he may not do so but must rather designate
employees and allow those employees the time to perform
their tasks. The fact that Article 7(6) does not provide that —

from the

evident

is

It

(Case C-443/01)

(2002/C 31/10)

Reference has been made to the Court of Justice of the
European Communities by order of 13 September 2001 by
the Vestre Landsret (Western Regional Court), which was
received at the Court Registry on 19 November 2001, for a
preliminary ruling in the case of Poul Nørgaard v Skatteminis-
teriet (Ministry of Fiscal Affairs) on the following questions:

Question 1

Must Article 13.B(b)(1) of Sixth VAT Directive 77/388/EEC (1)
be construed as meaning that a short-term letting such as
described in the order is covered by the phrase ‘provision of
accommodation ... in the hotel sector or in sectors with a
similar function’?

Question 2

If lettings of immovable property for holiday purposes for
fixed periods of less than one month and divisible by one week
may be covered by the phrase ‘provision of accommodation ...
in the hotel sector or in sectors with a similar function’, can
Member States then define the term ‘sectors with a similar
function’ on the basis of a comprehensive assessment of
objective criteria, such as, for instance, whether the immovable
property is separately registered, whether the immovable
property is connected to facilities that are shared by other
properties, and whether services such as the provision of bed
linen, breakfast, cleaning and suchlike are provided?

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