Case C-458/02: Action brought on 18 December 2002 by the Commission of the European Communities against the United Kingdom
Date: 2003-03-08
Institutions: Court of Justice
Subjects: European Commission, United Kingdom, action for failure to fulfil an obligation, artistic profession, audiovisual production, copyright, cultural exception, equal pay

C 55/8

EN

Official Journal of the European Union

8.3.2003

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 29 October 2002 in the case
ITG GmbH Inter-
of Hauptzollamt Bremen against

nationale Spedition

(Case C-452/02)

(2003/C 55/15)

Action brought on 18 December 2002 by the Commission
the United
of

the European Communities against

Kingdom

(Case C-458/02)

(2003/C 55/16)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 29 October 2002, received at the
Court Registry on 12 December 2002, for a preliminary ruling
in the case of Hauptzollamt Bremen against ITG GmbH
Internationale Spedition on the following questions:

1.

2.

Is a customs debt on importation incurred under
Article 203(1) of Regulation (EEC) No 2913/92 (1) where,
contrary to instructions, goods in temporary storage are
not presented to the original customs authority but to
another customs authority without having been placed
under the Community transit procedure required for their
movement?

If Question 1 should be answered in the negative: In the
circumstances described in Question 1 is there a non-
fulfilment of an obligation that could result
in the
incurrence of a customs debt on importation under
Article 204(1)(a) of Regulation (EEC) No 2913/92?

An action against the United Kingdom was brought before the
Court of Justice of the European Communities on 18 December
2002 by the Commission of the European Communities,
represented by K. Banks, acting as agent, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare that in providing for an exception to the right to
equitable remuneration for performers and phonogram
producers where a phonogram published for commercial
purposes, or a reproduction of such phonogram, is used
for any communication to the public (the exception
concerning any communication to a non-paying audi-
ence), the United Kingdom has failed to implement
correctly Article 8(2) of Council Directive 92/100/EEC (1)
on rental right and lending right and on certain rights
related to copyright in the field of intellectual property;

3.

If Question 2 should be answered in the affirmative:

— order the United Kingdom to pay the costs of this action.

(a)

Should Article 859, point 5, of Regulation (EEC)
No 2454/93 (2) be interpreted as referring only to
an unauthorised movement of goods that could
have been authorised by the customs office, or does
it mean any movement of goods at all?

(b) Should Article 859, point 5, of Regulation (EEC)
No 2454/93 be interpreted as meaning that the
that the
condition laid down in that provision,
goods in temporary storage can be presented to the
customs authorities at their request, is fulfilled only
if the goods are presented again to the customs
office where they were originally presented, or is the
condition fulfilled even if the goods are presented
again to another customs office in the same town
which comes under the organisation of a different
customs authority?

( 1) OJ L 302, p. 1.
( 2) OJ L 253, p. 1.

Pleas in law and main arguments

The only permissible exceptions to both the producers’ and
performers’ right
to obtain equitable remuneration under
Article 8 of Directive 92/100/EEC are provided for by
Article 10 of the directive. In the present context, the United
Kingdom can only rely upon limitations allowed under
Article 10(2) because the exceptions provided for under
paragraph 1 of the said provision are not pertinent.

As to the application of
the limitations allowed under
Article 10(2), it must be borne in mind that, pursuant to this
provision, Member States may only provide for limitations
with regard to the protection of performers to the extent that
they may lawfully do in connection with the protection of
copyright in literary and artistic works. It follows, however,
from Article 11 bis (2) of the Berne Convention that domestic
legislation shall not in any circumstances be prejudicial to the
author’s right to obtain equitable remuneration.

8.3.2003

EN

Official Journal of the European Union

C 55/9

Since, under Article 10(2) of the directive, producers and
performers must be treated on an equal footing with authors,
the United Kingdom is not entitled to exclude the right to
claim equitable remuneration when a broadcast or cable
programme containing a recording is seen or heard by a non-
paying audience as set out in paragraph 18 of Schedule 2 of
the 1988 Copyright, Designs and Patents Act.

In the view of the Commission, the criterion of a non-paying
audience as defined in the aforementioned provision goes
much further than the exceptions to the right permitted under
Article 10 of the directive.

Therefore, the Commission submits that by providing for
exceptions from the right to equitable remuneration granted
to performers where a broadcast or communication to the
public of protected subject matter is seen or heard by a non-
paying audience, the United Kingdom has failed to fulfil the
requirements of Community law and in particular of
Article 8(2) of Directive 92/100/EEC.

( 1) OJ L 346, 27.11.1992, p. 61.

Action brought on 19 December 2002 by the Commission
of the European Communities against the Italian Republic

(Case C-460/02)

(2003/C 55/17)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 19 December
2002 by the Commission of the European Communities,
represented by Mikko Huttunen and Antonio Aresu, acting as
Agents.

The applicant claims that the Court should :

(a) Declare that the Italian Republic has failed to fulfil
its obligations under Council Directive 96/67/EC (1) of
15 October 1996 on access to the groundhandling
market at Community airports inasmuch as Legislative
Decree No 18 of 13 January 1999

— fails to lay down a maximum period of 7 years
for the selection of suppliers of groundlhandling
services, in accordance with Article 11(1)(d), of the
directive in question;

— introduces, by Article 14, a social measure which is
not compatible with Article 18 of the directive;

— provides, at Article 20, transitional provisions not

permissible under the directive;

(b) order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 11 of Legislative Decree No 18 of 13 January 1999
does not lay down the maximum period for which suppliers
of services are selected at airports in which access to the
market is by means of a selection procedure. Article 11(1)(d)
of Directive 96/67/EC expressly provides that the maximum
period is fixed at 7 years. The Commission therefore takes
the view that the absence of a limit
to the duration of
groundhandling contracts at Italian airports is incompatible
with the requirements laid down by the directive.

Article 18 of Directive 96/67/EC allows Member States to take
the necessary measures to ensure protection of the rights of
workers. However, such measures must not affect the appli-
cation of the directive itself and must not obstruct other
provisions of Community law. In other words, the protection
of the rights of workers is indeed permissible under Article 18
of the directive provided that it does not run counter to the
effective application of
the directive so far as concerns
groundhandling services. Article 14(1) of Legislative Decree
No 18/99 lays down the objective of adopting measures to
protect the number of posts of staff working for the previous
service supplier and continuing employment. The second
paragraph of the article in question thus contains the obligation
to transfer staff any time there is a ‘transfer of business’
affecting one or more categories of groundhandling services
under Annex A and B. Such a provision manifestly exceeds the
protection already guaranteed by Council Directive 77/187/
EEC of 14 February 1977 (2) 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, as amended by Council Directive 98/50/
EC (3) and codified by Council Directive 2001/23/EC (4) of
12 March 2001. Accordingly, the Commission takes the view
that Article 14 of Legislative Decree No 18/99 goes beyond
what may be considered to be permissible measures to
guarantee the protection of
the rights of workers under
Article 18 of Directive 96/67/EC.