Judgment of the Court (Sixth Chamber) of 11 September 2003 in Case C-201/01 (Reference for a preliminary ruling from the Oberster Gerichtshof): Maria Walcher v Bundesamt für Soziales und Behindertenwesen Steiermark (Protection of workers — Insolvency of the employer — Scope of Directive 80/987/EEC — National case-law on shareholder loans in lieu of capital contributions — Total loss of entitlement)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: financial solvency, interpretation of the law, labour law, pay, protection of shareholders

C 275/12

EN

Official Journal of the European Union

15.11.2003

4.

5.

6.

In Case C-172/01 P, orders International Power plc to pay its
own costs in the proceedings before the Court of
Justice
and those incurred by NALOO in these proceedings. The
Commission of the European Communities is to pay its own
costs.

In Case C-175/01 P, orders NALOO to pay its own costs in
the proceedings before the Court of Justice and those incurred by
British Coal Corporation and the Commission of the European
Communities in these proceedings.

In Case C-176/01 P, orders PowerGen (UK) plc to pay its own
costs in the proceedings before the Court of Justice and those
incurred by NALOO in these proceedings. The Commission of
the European Communities is to pay its own costs.

7.

In Case C-180/01 P, orders each party to pay its own costs in
the proceedings before the Court of Justice.

8. Orders the Commission of the European Communities and
NALOO each to pay their own costs in the proceedings before
the Court of First Instance. International Power plc, British
Coal Corporation and PowerGen (UK) plc are each to pay their
own costs as interveners in the proceedings before the Court of
First Instance.

(1) OJ C 200 of 14.07.2001.

marketed in Denmark only if it is shown that such enrichment
with nutrients meets a need in the Danish population, the
Kingdom of Denmark has failed to fulfil its obligations under
Article 28 EC,
J.-P. Puissochet,
the Court, composed of:
President of the Sixth Chamber, acting for the President,
M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presi-
dents of Chambers), C. Gulmann, A. La Pergola, F. Macken
(Rapporteur), N. Colneric, S. von Bahr, J.N. Cunha Rodrigues
and A. Rosas, Judges; J. Mischo, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 23 Sep-
tember 2003, in which it:

1. Declares that by applying an administrative practice which
entails that enriched foodstuffs lawfully produced or marketed
in other Member States can be marketed in Denmark only if it
is shown that such enrichment with nutrients meets a need in
the Danish population, the Kingdom of Denmark has failed to
fulfil its obligations under Article 28 EC.

2. Orders the Kingdom of Denmark to pay the costs.

(1) OJ C 200 of 14.7.2001.

JUDGMENT OF THE COURT

of 23 September 2003

JUDGMENT OF THE COURT

(Sixth Chamber)

of 11 September 2003

in Case C-192/01: Commission of the European Communi-
ties v Kingdom of Denmark (1)

in Case C-201/01 (Reference for a preliminary ruling from
the Oberster Gerichtshof): Maria Walcher v Bundesamt
für Soziales und Behindertenwesen Steiermark (1)

(Failure of a Member State to fulfil obligations — Articles 28
EC and 30 EC — Prohibition on marketing of foodstuffs to
which vitamins and minerals have been added — Justifi-
cation — Public health — Nutritional need)

(Protection of workers — Insolvency of the employer —
Scope of Directive 80/987/EEC — National case-law on
shareholder loans in lieu of capital contributions — Total
loss of entitlement)

(2003/C 275/19)

(Language of the case: Danish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(2003/C 275/20)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-192/01, Commission of the European Communities
(Agent: H. C. Støvlbæk) v Kingdom of Denmark (Agent:
J. Molde): Application for a declaration that, by applying an
administrative practice which entails that enriched foodstuffs
lawfully produced or marketed in other Member States may be

In Case C-201/01: Reference to the Court under Article 234
EC by the Oberster Gerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between

15.11.2003

EN

Official Journal of the European Union

C 275/13

Maria Walcher and Bundesamt für Soziales und Behinderten-
wesen Steiermark, on the interpretation of Council Directive
80/987/EEC of 20 October 1980 on the approximation of the
laws of the Member States relating to the protection of
employees in the event of the insolvency of their employer (OJ
1980 L 283, p. 23), as amended by the Act concerning the
conditions of accession of the Republic of Austria, the Republic
of Finland and the Kingdom of Sweden and the adjustments to
the Treaties on which the European Union is founded (OJ
1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the Court (Sixth
Chamber), composed of:
J.-P. Puissochet, President of the
Chamber, C. Gulmann, F. Macken, N. Colneric (Rapporteur)
and J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
R. Grass, Registrar, has given a judgment on 11 September
2003, in which it has ruled:

JUDGMENT OF THE COURT

of 30 September 2003

in Case C-224/01 (Reference for a preliminary ruling from
the Landesgericht für Zivilrechtssachen Wien): Gerhard
Köbler v Republik Österreich (1)

(Equal treatment — Remuneration of university professors
— Indirect discrimination — Length-of-service increment —
Liability of a Member State for damage caused to individuals
by infringements of Community law for which it is respon-
sible — Infringements attributable to a national court)

1.

2.

Council Directive 80/987/EEC of 20 October 1980 on the
approximation of the laws of the Member States relating to the
protection of employees in the event of the insolvency of their
employer, as amended by the Act concerning the conditions of
accession of the Republic of Austria, the Republic of Finland
and the Kingdom of Sweden and the adjustments to the Treaties
on which the European Union is founded precludes a rule that
an employee with a significant shareholding in the private
limited company that employs him, but who does not exercise a
dominant influence over that company, loses, pursuant to the
Austrian case-law relating to shareholder loans in lieu of capital
contributions, his entitlement to the guarantee in respect of
claims for outstanding pay which result from the employer’s
insolvency and are covered by Article 4(2) of that directive if, in
the 60 days from the time he first could have become aware
that the company was no longer creditworthy, he fails to make
any genuine demand for payment of salary owed to him.

To avoid abuses a Member State is, in principle, entitled to take
measures that deny such an employee an entitlement to a
guarantee in respect of claims for outstanding salary arising
after the date on which an employee who is not a shareholder
would have resigned on the ground of non-payment of his
salary, unless it is established that there has been no abusive
conduct. As regards the guarantee to pay claims covered by
Article 4(2) of Directive 80/987, as amended, the Member
State is not entitled to assume that, as a general rule, an
employee who is not a shareholder would have resigned on the
ground of non-payment of his salary before his salary had been
in arrears for a period of three months.

(1) OJ C 212 of 28.7.2001.

(2003/C 275/21)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-224/01: Reference to the Court under Article 234
EC by the Landesgericht für Zivilrechtssachen Wien (Austria),
for a preliminary ruling in the proceedings pending before that
court between Gerhard Köbler and Republik Österreich, on
the interpretation, first, of Article 48 of the EC Treaty (now,
after amendment, Article 39 EC) and, secondly, the judgments
of the Court in Joined Cases C-46/93 and C-48/93Brasserie du
Pêcheur and Factortame [1996] ECR I-1029 and Case C-54/
96Dorsch Consult [1997] ECR I-4961, the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Rapporteur) (Presi-
dents of Chambers), C. Gulmann, D.A.O. Edward, A. La
Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von
Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges; P. Léger,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 30 September 2003, in
which it has ruled:

1.

The principle that Member States are obliged to make good
damage caused to individuals by infringements of Community
law for which they are responsible is also applicable where the
alleged infringement stems from a decision of a court adjudicat-
ing at last instance where the rule of Community law infringed
is intended to confer rights on individuals, the breach is
sufficiently serious and there is a direct causal link between that
breach and the loss or damage sustained by the injured parties.
In order to determine whether the infringement is sufficiently
serious when the infringement at issue stems from such a
decision, the competent national court, taking into account the
specific nature of the judicial function, must determine whether
that infringement is manifest. It is for the legal system of each
Member State to designate the court competent to determine
disputes relating to that reparation.