Case C-191/03: Reference for a preliminary ruling by the Labour Court, Dublin, by decision of that court dated 14 April 2003, in the case of North Western Health Board against Margaret McKenna
Date: 2003-07-05
Institutions: Court of Justice
Subjects: EC Directive, equal treatment, incapacity for work, interpretation of the law, motherhood, occupational disease, occupational health, social-security benefit

C 158/12

EN

Official Journal of the European Union

5.7.2003

Pleas in law and main arguments

— First and second objection: compulsory permits for firms

and their staff

The requirement that a private security firm wishing to
provide services in the Netherlands must have a permit is
equivalent to a restriction on the freedom to provide
services by the undertakings concerned. Such a restriction
is justified solely where there are overriding reasons of
public interest, that interest cannot be guaranteed in the
Member State in which the undertaking is established and
the national measure does not exceed what is necessary
to achieve the objective sought.

However, as regards, first, the appropriateness of the
measure to achieve the general interest objective, said to
be the protection of customers for the services, there is
no evidence from which to conclude that the obligation
for a permit as required in the Netherlands constitutes an
appropriate measure.

Moreover, the Netherlands legislation does not take into
account the requirements which the foreign provider of
services must already satisfy in his Member State of
establishment, in particular where he already has a permit
to carry out his activities in that State.

Furthermore, the requirement for a permit is combined
with costs for the foreign undertaking. This is an extra
financial burden for foreign undertakings which are
already required in their country of origin to apply for a
permit and to pay such costs. Those charges in such
circumstances also appear to be incompatible with
Article 49 of the EC Treaty.

Just like the obligation that an undertaking have a permit,
the requirement that managers must also obtain specific
approval is not an appropriate measure which can be
justified by one of the reasons on which the Netherlands
authorities rely. In any case, as the firm itself must already
satisfy an obligation to have a permit in the Netherlands,
the requirement for approval of managers is a dual
measure which is thus certainly not necessary. The
separate approval of managers therefore infringes the
principle of proportionality and, thus, Article 49 of the
EC Treaty.

The requirement for a fee for the issue of this proof is,
moreover, an extra financial burden that is incompatible
with Article 49 of the EC Treaty.

— Fourth objection: recognition of professional qualifi-

cations

installers of

Under Netherlands legislation, it is a requirement that staff
members of a security firm have a diploma (Algemeen
Beveiligingsmedewerker — diploma) from a Netherlands
organisation. Furthermore,
alarms are
required to have certain qualifications, but no account is
taken of diplomas acquired in another Member State.
Nowhere is there express reference to a procedure for the
recognition of diplomas and qualifications acquired in
another Member State for the exercise of the professions
in question. The legislation in question does not appear
to have a provision referring to the machinery for the
recognition of professional qualifications, such as those
included in the relevant national
legislation. Such a
situation is incompatible with existing Community legis-
lation, namely Directive 89/48/EEC and Directive 92/51/
EEC which together form a general framework for the
recognition of professional qualifications obtained in
other Member States.

(1) OJ 1989 L 19, p. 16.
(2) OJ 1992 L 209, p. 25.

Reference for a preliminary ruling by the Labour Court,
Dublin, by decision of that court dated 14 April 2003, in
the case of North Western Health Board against Margaret
McKenna

(Case C-191/03)

(2003/C 158/21)

— Third objection: proof of identity

Foreign undertakings are obliged to ensure that staff
seconded to the Netherlands from outside their country
of establishment are in possession of a proof of identity
issued by the Netherlands authorities. That applies also
for the temporary provision of services. As the seconded
staff must already, in accordance with Community law,
possess an identity card or passport, it is disproportionate
to require a proof of identity.

Reference has been made to the Court of
Justice of the
European Communities by a decision of the Labour Court,
Dublin, dated 14 April 2003, which was received at the Court
Registry on 12 May 2003, for a preliminary ruling in the case
of North Western Health Board and Margaret McKenna on the
following questions:

1. Does the operation of a sick leave scheme which treats
employees suffering from pregnancy related illnesses and
pathological illness in an identical fashion come within
the scope of Directive 76/207 (1)?

5.7.2003

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Official Journal of the European Union

C 158/13

2.

3.

If the answer to question 1 is in the affirmative, is it
contrary to Directive 76/207 for an employer to offset
against an employee’s total entitlement to benefit under
an occupational sick-leave scheme, a period of absence
from work due to incapacity caused by a pregnancy
related illness arising during pregnancy?

If the answer to question 1 is in the affirmative, does
Directive 76/207 require an employer to have in place
special arrangements to cover absence from work due to
incapacity caused by pregnancy related illness arising
during pregnancy?

4. Does the operation of a sick leave scheme which treats
employees suffering from pregnancy related illness and
pathological illness come within the scope of Article 141
of the EC Treaty and Directive 75/117 (2) ?

5.

If the answer to question 4 is in the affirmative, is it
contrary to Article 141 of the Treaty and Directive 75/
117 for an employer to reduce a woman’s pay after she
has been absent from work for a designated period where
the absence is caused by incapacity due to a pregnancy
related illness arising during pregnancy in circumstances
in which a non pregnant woman or a man absent from
work for the same period as a result of incapacity due
to purely pathological
illness would suffer the same
reduction?

( 1) Council Directive 76/207/EEC of 9 February 1976 on the
implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training and
promotion, and working conditions (OJ L 039, 14.2.1976, p. 40-
42).

( 2) Council Directive 75/117/EEC of 10 February 1975 on the
approximation of the laws of the Member States relating to the
application of the principle of equal pay for men and women (OJ
L 045, 19.2.1975, p. 19-20).

Appeal brought on 12 May 2003 by Alcon Inc., formerly
Alcon Universal Ltd, against the judgment delivered on
5 March 2003 by the Second Chamber of the Court of
First Instance of the European Communities in case T-237/
01 (1) between Alcon Inc., formerly Alcon Universal Ltd
and the Office for Harmonization in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case C-192/03 P)

(2003/C 158/22)

was brought before the Court of Justice of the European
Communities on 12 May 2003 by Alcon Inc.,
formerly
Alcon Universal Ltd, established in Hünenberg (Switzerland),
represented by S. Clark, Solicitor, and C. Morcom QC, with an
address for service in Luxembourg.

The Appellant claims that the Court should:

— set aside the judgment of the Court of First Instance
delivered on 5 March 2003, and that the contested
decisions of the Cancellation Division dated 15 December
1999 and of the First Board of Appeal dated 13 July
2001 be annulled;

— make an order for the payment of its costs.

Pleas in law and main arguments

The appellant submits that the decision of the Court of First
Instance of 5 March 2003 was wrong in law in a number of
respects. In particular the Court

(i)

failed to consider adequately or at all the specific require-
ments of Article 7(1)(d) of the Community Trade Mark
Regulation as to customary use, in the current language
or in the bona fide and established practices of the trade;

(ii) wrongly proceeded upon the assumption that mere
entries in directories or other reference sources by
themselves satisfied the requirements of Article 7(1)(d);

(iii) wrongly took into consideration material not published
or not shown to have been published within the European
Union prior to 1 April 1996 and in so doing failed to
address the distinction between the requirements of
Articles 7(1)(d) and 50(1)(b) of the Regulation, the former
alone being material for the purposes of the application
for a declaration of invalidity;

(iv)

failed to take into account
the evidence of Alcon’s
substantial policing of the trade mark BSS over a very
considerable period of time;

(v)

alternatively wrongly rejected the case put forward on
behalf of Alcon, that the mark BSS had in fact acquired
distinctive character as a result of use, thus meeting the
requirements of Article 51(2) of the Regulation.

An appeal against the judgment delivered on 5 March 2003
by the Second Chamber of the Court of First Instance of the
European Communities in case T-237/01 between Alcon Inc.,
formerly Alcon Universal Ltd and the Office for Harmonization
in the Internal Market (Trade Marks and Designs) (OHIM),

(1) OJ C 369, 22.12.2001, p. 13.