Judgment of the Court (Fifth Chamber) of 4 December 2003 in Case C-92/02 (Reference for a preliminary ruling from the Arbeidsrechtbank van het Arrondissement Tongeren): Nina Kristiansen v Rĳksdienst voor Arbeidsvoorziening (Social security — National system of unemployment benefits laying down a rule against overlapping of benefits as regards certain income — Unemployment benefits for former members of the temporary staff of the European Communities — Freedom of movement for workers — National scheme of unemployment insurance — Classification of post-graduate occupation — Occupation of trainee fellowship student — Different classification in other Member States of the EEA — Discrimination)
Date: 2004-01-24
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 21/6

EN

Official Journal of the European Union

24.1.2004

bourg) for a preliminary ruling in the proceedings pending
before that court between Zita Modes Sàrl and Administration
de l’enregistrement et des domaines, on the interpretation of
Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added
tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as
amended by Council Directive 95/7/EC of 10 April 1995
amending Directive 77/388/EEC and introducing new simplifi-
cation measures with regard to value added tax — scope of
certain
for
implementing them (OJ 1995 L 102, p. 18), the Court (Fifth
Chamber), composed of: P. Jann, acting for the President of
the Fifth Chamber, D. A. O. Edward and S. von Bahr
(Rapporteur), Judges; F. G. Jacobs, Advocate General; R. Grass,
Registrar, has given a judgment on 27 November 2003, in
which it has ruled:

arrangements

exemptions

practical

and

1. Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added
tax: uniform basis of assessment, as amended by Council
Directive 95/7/EC of 10 April 1995 amending Directive 77/
388/EEC and introducing new simplification measures with
regard to value added tax — scope of certain exemptions
and practical arrangements for implementing them, must be
interpreted as meaning that when a Member State has made
use of the option in the first sentence of that paragraph to
consider that for the purposes of value added tax no supply of
goods has taken place in the event of a transfer of a totality of
assets, that no-supply rule applies — without prejudice to use
of the possibility of restricting its application in the circum-
stances laid down in the second sentence of the same paragraph
— to any transfer of a business or an independent part of an
including tangible elements and, as the case
undertaking,
may be,
intangible elements which, together, constitute an
undertaking or a part of an undertaking capable of carrying on
an independent economic activity. The transferee must however
intend to operate the business or the part of the undertaking
transferred and not simply to immediately liquidate the activity
concerned and sell the stock, if any.

2. When a Member State has made use of the option in the first
sentence of Article 5(8) of Sixth Directive 77/388, as amended
by Directive 95/7, to consider that for the purposes of value
added tax no supply of goods has taken place in the event of a
transfer of a totality of assets, the restriction by a Member State
of the application of that no-supply rule to transfers of a totality
of assets where the transferee holds the authorisation for pursuit
of the economic activity which that totality enables to be carried
on infringes that provision.

(1) OJ C 44 of 16.2.2002.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 4 December 2003

in Case C-92/02 (Reference for a preliminary ruling from
the Arbeidsrechtbank van het Arrondissement Tonge-
ren): Nina Kristiansen v Rijksdienst voor Arbeidsvoor-
ziening (1)

(Social security — National system of unemployment ben-
efits laying down a rule against overlapping of benefits as
regards certain income — Unemployment benefits for former
members of the temporary staff of the European Communi-
ties — Freedom of movement for workers — National
scheme of unemployment insurance — Classification of post-
graduate occupation — Occupation of trainee fellowship
student — Different classification in other Member States
of the EEA — Discrimination)

(2004/C 21/11)

(Language of the case: Dutch)

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

In Case C-92/02, Reference to the Court under Article 234 EC
by the Arbeidsrechtbank van het Arrondissement Tongeren
(Belgium) for a preliminary ruling in the proceedings pending
before that court between Nina Kristiansen and Rijksdienst
voor Arbeisdvoorziening, on the interpretation of Regulation
(EEC) No 1408/71 of the Council of 14 June 1971 on the
application of social security schemes to employed persons, to
their families
self-employed persons and to members of
moving within the Community, as amended and updated by
Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
1997 L 28, p. 1), and of Regulation (EEC) No 1612/68 of the
Council of 15 October 1968 on freedom of movement for
workers within the Community (OJ, English Special Edition
1968 (II), p. 475), the Court (Fifth Chamber), composed of:
C. W. A. Timmermans, acting for the President of the Fifth
Chamber, D. A. O. Edward and A. La Pergola (Rapporteur),
Judges; S. Alber, Advocate General; R. Grass, Registrar, has
given a judgment on 4 December 2003, in which it has ruled:

1.

The second subparagraph of Article 28a(1) of the Conditions
of Employment of Other Servants of the European Communities
means that the relationship between the Community system of
unemployment benefits and those of the Member States is a
complementary one, which cannot be disregarded by a Member
State in the application of its system of unemployment benefits
and, specifically, of a rule against the overlapping of benefits
under that system, to a former member of the temporary
staff who resides in that Member State and is entitled to
unemployment benefits paid under the Conditions of Employ-
ment of Other Servants of the European Communities.

24.1.2004

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Official Journal of the European Union

C 21/7

2.

The principle of non-discrimination laid down by Article 7(4)
of Regulation (EEC) No 1612/68 of the Council of 15 October
1968 on freedom of movement
for workers within the
Community does not preclude a person carrying on an activity
as a post-graduate student, such as the person in the main
proceedings, from being deemed, in a Member State, to be a
trainee fellowship student who is not entitled to any rights
under the national system of unemployment benefits, even
though in other Member States a person carrying on similar
activities is deemed to be carrying on an occupational activity
and is entitled to benefits under the unemployment benefits
system.

(1) OJ C 118 of 18.5.2002.

JUDGMENT OF THE COURT

of 9 December 2003

in Case C-116/02 (Reference for a preliminary ruling from
the Oberlandesgericht Innsbruck): Erich Gasser GmbH v
MISAT Srl (1)

(Brussels Convention — Article 21 — Lis pendens —
Article 17 — Agreement conferring jurisdiction — Obli-
gation to stay proceedings of court second seised designated
in an agreement conferring jurisdiction — Excessive duration
of proceedings before courts in the Member State of the court
first seised)

(2004/C 21/12)

(Language of the case: German)

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

In Case C-116/02: Reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of
the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
by the Oberlandesgericht Innsbruck (Austria) for a preliminary
ruling in the proceedings pending before that court between
Erich Gasser GmbH and MISAT Srl, on the interpretation of
Article 21 of the abovementioned Convention of 27 September
1968, as amended by the Convention of 9 October 1978 on
the accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland (OJ
1978 L 304, p. 1, and — amended text — p. 77), by the
Convention of 25 October 1982 on the accession of the
Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of
26 May 1989 on the accession of the Kingdom of Spain and
the Portuguese Republic (OJ 1989 L 285, p. 1) and by the
Convention of 29 November 1996 on the accession of the

Republic of Austria, the Republic of Finland and the Kingdom
of Sweden (OJ 1997 C 15, p. 1), the Court, composed
of: V. Skouris, President, P. Jann, C. W. A. Timmermans,
C. Gulmann, J. N. Cunha Rodrigues and A. Rosas (Presidents
of Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
R. Schintgen (Rapporteur), F. Macken, N. Colneric and S. von
Bahr, Judges; P. Léger, Advocate General; M.-F. Contet, Princi-
pal Administrator, for the Registrar, has given a judgment on
9 December 2003, in which it has ruled:

1. A national court may, under the Protocol of 3 June 1971 on
the interpretation by the Court of Justice of the Convention of
27 September 1968 on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, as amended by
the Convention of 9 October 1978 on the accession of the
Kingdom of Denmark, Ireland and the United Kingdom of
Great Britain and Northern Ireland, by the Convention of
25 October 1982 on the accession of the Hellenic Republic, by
the Convention of 26 May 1989 on the accession of the
Kingdom of Spain and the Portuguese Republic and by the
Convention of 29 November 1996 on the accession of the
Republic of Austria, the Republic of Finland and the Kingdom
of Sweden, refer to the Court of Justice a request for interpret-
ation of the Brussels Convention, even where it relies on the
submissions of a party to the main proceedings of which it has
not yet examined the merits, provided that it considers, having
regard to the particular circumstances of the case, that a
preliminary ruling is necessary to enable it to give judgment
and that the questions on which it seeks a ruling from the Court
are relevant. It is nevertheless incumbent on the national court
to provide the Court of Justice with factual and legal information
enabling it to give a useful interpretation of the Convention and
to explain why it considers that a reply to its questions is
necessary to enable it to give judgment.

2. Article 21 of the Brussels Convention must be interpreted as
meaning that a court second seised whose jurisdiction has been
claimed under an agreement
conferring jurisdiction must
nevertheless stay proceedings until the court first seised has
declared that it has no jurisdiction.

3. Article 21 of the Brussels Convention must be interpreted as
meaning that it cannot be derogated from where, in general,
the duration of proceedings before the courts of the Contracting
State in which the court first seised is established is excessively
long.

(1) OJ C 144 of 15.6.2002.