Case C-297/03: Reference for a preliminary ruling by the Oberster Gerichtshof by order of that Court of 4 June 2003 in the case of Sozialhilfeverband Rohrbach against Arbeiterkammer Oberösterreich and Österreichischer Gewerkschaftsbund, Gewerkschaft öffentlicher Dienst
Date: 2003-09-20
Institutions: Court of Justice
Subjects: interpretation of the law, joint authority, private limited company, public sector, welfare, work contract

C 226/6

EN

Official Journal of the European Union

20.9.2003

Reference for a preliminary ruling by the Oberster
Gerichtshof by order of that Court of 4 June 2003
in the case of Sozialhilfeverband Rohrbach against
Arbeiterkammer Oberösterreich and Österreichischer
Gewerkschaftsbund, Gewerkschaft öffentlicher Dienst

Reference for a preliminary ruling by the Hessisches
Finanzgericht by order of that Court of 25 April 2003 in
case of Honeywell Aerospace GmbH against
the

Hauptzollamt Gießen — Fulda Office

(Case C-297/03)

(2003/C 226/08)

(Case C-300/03)

(2003/C 226/09)

Justice of

Reference has been made to the Court of
the
European Communities by order of the Oberster Gerichtshof
(Supreme Court) of 4 June 2003, received at the Court Registry
on 10 July 2003, for a preliminary ruling in the case of
Arbeiterkammer
against
Sozialhilfeverband
Oberösterreich
and Österreichischer Gewerkschaftsbund,
Gewerkschaft öffentlicher Dienst on the following questions:

Rohrbach

by

order

Justice of

the
Reference has been made to the Court of
the Hessisches
European Communities
Finanzgericht
(Hessian Finance Court) of 25 April 2003,
received at the Court Registry on 11 July 2003, for a prelimi-
nary ruling in the case of Honeywell Aerospace GmbH against
Hauptzollamt Gießen — Fulda Office — on the following
questions:

of

1.

1.

Is a limited liability company governed by private law,
whose sole shareholder is a social assistance association
governed by public law (local authority association) and
which has been entrusted with tasks of a private sector
authority (social assistance by way of the operation of a
workplace for disabled persons), nevertheless still to be
regarded as a ‘State entity’, with the effect that Article 3
in conjunction with Article 1(1)(c), of Council
(1),
amended by Council
as
Directive 77/187/EEC (1),
Directive 98/50/EC (2) (now Council Directive 2001/23/EC),
which was not correctly transposed into national law, is
directly applicable against it if, under a contract of transfer,
which is subject only to the agreement of the association's
board, the social assistance association's shareholding is to
be transferred to a purely private limited liability company?

If the answer to the first question is in the affirmative:

2. As a ‘State entity’ within the meaning of the case-law of the
Court of Justice of the European Communities, can a social
assistance association (local authority association) which
transfers its operations itself rely on the direct application
of Article 3(1), in conjunction with Article 1(1)(c), of the
Directive referred to in Question 1 against its employees,
who are contesting the transfer of their employment con-
tracts to a transferee (within the meaning of Question 1)
and who insist that their employment relationship with the
transferor continues to exist, where the provision of the
Directive referred to in Question 1 has not been correctly
transposed, with the effect that the employment contracts
are deemed to have been transferred to the transferee? In
is it material that the transferor ‘State
that connection,
entity’ has no legislative competence to transpose a direc-
that competence lying with a
tive into national
superior legislative body (the Land)?

law,

a

Is a customs debt deemed, under Article 215(2) or the first
indent of Article 215(3) of Council Regulation (EEC)
No 2913/92 (1), as applicable until 9 May 1999, to have
been incurred at the place where the customs authorities
conclude that the goods are in a situation in which a
customs debt is incurred (Article 215(2)) or at the place
where the goods were placed under the customs procedure
[which is not discharged] (first indent of Article 215(3))
external
consignment placed under
even if
Community transit procedure is not presented at the office
of destination and the place where the offence or irregu-
larity occurred cannot be established, but the customs
authorities have failed, contrary to the last part of
Article 378(1) and the first sentence of Article 379(2) of
Commission Regulation (EEC) No 2454/93 (2), as appli-
cable until 30 June 2001, to indicate in the notification
under Article 379(1) of that regulation the time-limit by
which proof must be furnished to the office of departure of
the regularity of the transit operation or the place where
the offence or irregularity was actually committed?

the

2.

If Question 1 is to be answered in the affirmative:

Does the recovery of duty by the competent customs
authority under the third sentence of Article 379(2) of
Regulation (EEC) No 2454/93, as applicable until 30 June
2001, require the customs authorities to have indicated in
the notification under Article 379(1) of that regulation the
time-limit by which proof must be furnished to the office
of departure of the regularity of the transit operation or
the place where the offence or irregularity was actually
committed?

(1) OJ L 61 [1977], p. 26.
(2) OJ L 201 [1998], p. 88.

(1) OJ L 302 [1992], p. 1.
(2) OJ L 253 [1993], p. 1.