Case C-92/02: Reference for a preliminary ruling by De Arbeidsrechtbank van het Arrondissement Tongeren by order of that Court of 11 March 2002 in the case of Nina Kristiansen against Rĳksdienst voor Arbeidsvoorziening
Date: 2002-05-18
Institutions: Court of Justice
Subjects: Belgium, cessation of trading, discrimination on the basis of nationality, free movement of workers, interpretation of the law, national law, servant (EU), social inequality, social-security benefit, unemployment insurance

C 118/18

EN

Official Journal of the European Communities

18.5.2002

Reference for a preliminary ruling by the Verwaltungsger-
icht Sigmaringen by order of that Court of 10 December
2001 in the case of Ms Erika Steinicke against Bundesan-
stalt für Arbeit

(Case C-77/02)

(2002/C 118/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Sigmaringen
of
10 December 2001, received at the Court Registry on 7 March
2002, for a preliminary ruling in the case of Ms Erika Steinicke
against Bundesanstalt für Arbeit on the following question:

(Administrative

Sigmaringen)

Court,

Do Articles 141 of the EC Treaty, Directives 75/117/EEC (1),
76/207/EEC (2) and/or Directive 97/81/EC (3) preclude the rule
in Paragraph 72(b)(1)(1)(2) of the Bundesbeamtengesetz (Law
on public servants), in the 3 March 1999 version that was in
force until 30 June 2000, to the effect that part-time status on
grounds of old age may be accorded only to public servants
who have worked full-time for a total of at least three of the
five years preceding their conversion to such part-time status,
if significantly more women than men work part-time, and
are consequently excluded under that provision from being
accorded part-time status on grounds of old age?

(1) OJ L 45, p. 19.
(2) OJ L 39, p. 40.
(3) OJ 1998 L 14, p. 9.

The Commission claims that the Court should:

— declare that, by failing to adopt and to communicate
to the Commission within the time-limit laid down
(16 September 1999) the plans, outlines and summaries
required under Articles 11 and 4(1) of Council Directive
96/59/EC (1) of 16 September 1996 on the disposal of
and polychlorinated ter-
polychlorinated biphenyls
phenyls (PCB/PCT), the Hellenic Republic has failed to
fulfil its obligations under the EC Treaty;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In accordance with the third paragraph of Article 249 EC,
directives are binding, as to the result to be achieved, upon
each Member State to which they are addressed.

Under the first paragraph of Article 10 EC, Member States are
to take all appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of the Treaty
or resulting from action taken by the institutions of the
Community.

It is not disputed by the Hellenic Republic that it must adopt
measures to comply with the abovementioned directive.

The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-
ation of the directive at issue into Greek law.

(1) OJ L 243, 24.9.1996, p. 31.

Action brought on 12 March 2002 by the Commission of
the European Communities against the Hellenic Republic

Reference for a preliminary ruling by De Arbeidsrecht-
bank van het Arrondissement Tongeren by order of that
Court of 11 March 2002 in the case of Nina Kristiansen
against Rijksdienst voor Arbeidsvoorziening

(Case C-83/02)

(2002/C 118/29)

(Case C-92/02)

(2002/C 118/30)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 12 March
2002 by the Commission of the European Communities,
represented by Hans Stovlbaek and Minas Konstantinidis, Legal
Advisers.

Reference has been made to the Court of Justice of the
European Communities by order of De Arbeidsrechtbank
van het Arrondissement Tongeren (Tongeren District Labour
Court) of 11 March 2002, received at the Court Registry on
15 March 2002, for a preliminary ruling in the case of Nina
Kristiansen against Rijksdienst voor Arbeidsvoorziening on
the following questions:

18.5.2002

EN

Official Journal of the European Communities

C 118/19

1.

In respect of temporary officials of the EEC who, after the
end of their period of service with the EEC reside in
Belgium and in respect of whom no contributions were
deducted in favour of the social security system and who
are entitled to unemployment benefits paid by the EEC,
do the provisions of Regulation No 1408/71 (1) preclude
national legislation from being fully applied to them,
including the national rule against the overlapping of
benefits under which, in accordance with the conditions
governing the award of unemployment benefit
the
employee must be without work and without salary, the
latter terms being deemed to include in particular:
remuneration in respect of termination of employment
or any compensation payable to the employee in respect
of termination of an employment relationship, with the
exception of compensation for non-material damage?

2. Does it run counter to Regulation of

the Council
No 1612/68 (2) (Article 7(4) of Title II) which provides
that uniformity in social-security matters must be pursued
and that there may be no discrimination that (in the
applicant’s view) there is inequality in the social-security
status of post-doctoral assistants within the EEA, that in
various Member States of the EEA a post-doctoral assist-
ant is deemed to carry on an occupational activity, albeit
not subject to social security, and in Belgium a post-
doctoral assistant (in the applicant’s view unjustly) is
deemed to be a trainee (stagiaire) and a post-doctoral
fellow must arrange for his own social-security cover
under the Belgian national system although that is not
possible on a voluntary basis (at any rate in regard to
unemployment assurance)?

(1) OJ 1971, L 149, p. 2.
(2) OJ 1968, L 257, p. 2.

Action brought on 15 March 2002 by the Commission of
the European Communities against the Italian Republic

(Case C-99/02)

(2002/C 118/31)

The applicant claims that the Court should:

— declare that, by not adopting within the time-limit
prescribed all measures necessary for the recovery from
the recipients of aid granted unlawfully which is incom-
patible with the common market pursuant to Com-
mission Decision 2000/128/EC (1) of 11 May 1999
concerning aid granted by Italy to promote employment
(notified on 4 June 1999 under document number
C(1999) 1364), and therefore by not notifying the
Commission of such measures, the Italian Republic has
failed to fulfil its obligations under Articles 3 and 4 of
that decision and under the EC Treaty;

— order the defendant to pay the costs.

Pleas in law and main arguments

The Commission decision requires Italy to adopt ‘all necessary
measures to recover from the recipients the aid which does
not satisfy the conditions of Articles 1 and 2 and has already
been unlawfully paid.’ It must also notify the Commission,
within two months of the date of notification of that decision,
‘of the measures it has taken to comply herewith.’

It must be concluded that upon the expiry of that time-limit
the Italian Republic had not yet informed the Commission of
the measures taken to recover the aid unlawfully paid.

The only defence a Member State may plead to an action for
failure to comply with a decision imposing an obligation to
recover aid is that implementation is absolutely impossible.
That condition is not satisfied so long as the defendant
government confines itself to informing the Commission of
legal, political or practical obstacles to the implementation of
the decision without taking any steps to ensure that the
undertakings concerned pay back the aid, and without suggest-
ing alternative means of implementing the decision so as to
overcome those obstacles.

The Italian authorities have never claimed that implementation
was absolutely impossible, nor have they ever officially
requested an extension of time for the recovery or a suspension
of execution of the decision, and nor have they suggested
alternative ways of applying the decision which would have
enabled them to overcome the obstacles they faced.

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 15 March
2002 by the Commission of the European Communities,
represented by Vittorio Di Bucci, acting as Agent.

(1) OJ L 42 of 15.2.2000, p. 1.