Judgment of the Court of 13 January 2004 in Case C-453/00 (Reference for a preliminary ruling from the College van Beroep voor het bedrĳfsleven): Kühne & Heitz NV v Productschap voor Pluimvee en Eieren (Poultrymeat — Export refunds — Failure to refer a question for a preliminary ruling — Final administrative decision — Effect of a preliminary ruling given by the Court after that decision — Legal certainty — Primacy of Community law — Principle of cooperation — Article 10 EC)
Date: 2004-02-21
Institutions: Court of Justice
Subjects: EU law, case-law (EU), export refund, interpretation of the law, poultrymeat

C 47/2

EN

Official Journal of the European Union

21.2.2004

2.

ruling in the proceedings pending before that court between
Gesamtbetriebsrat der Kühne & Nagel AG & Co. KG and
Kühne & Nagel AG & Co. KG, on the interpretation of Articles 4
and 11 of Council Directive 94/45/EC of 22 September 1994
on the establishment of a European Works Council or a
procedure in Community-scale undertakings and Community-
scale groups of undertakings for the purposes of informing
and consulting employees (OJ 1994 L 254, p. 64), the Court,
composed of: V. Skouris, President, P. Jann and J.N. Cunha
Rodrigues (Presidents of Chambers), A. La Pergola, J.-P. Puisso-
chet, R. Schintgen, F. Macken (Rapporteur), N. Colneric and
S. von Bahr,
Judges; A. Tizzano, Advocate General; M.-
F. Contet, Principal Administrator, for the Registrar, has given
a judgment on 13 January 2004, in which it has ruled:

provide

obligation to

information deriving

from
The
Articles 4(1) and 11(1) of the Directive encompasses infor-
mation on the average total number of employees and their
distribution across the Member States, the establishments of
the undertaking and the group undertakings, and on the
structure of the undertaking and of the undertakings in the
group, as well as the names and addresses of the employee
representation which might participate in the setting up of a
special negotiating body in accordance with Article 5 of the
in the establishment of a European Works
Directive or
Council, where that information is essential to the opening of
negotiations for the establishment of such a council.

1. Articles 4(1) and 11(1) of Council Directive 94/45/EC of
22 September 1994 on the establishment of a European Works
Council or a procedure in Community-scale undertakings and
Community-scale groups of undertakings for the purposes of
informing and consulting employees must be interpreted as
meaning that:

— where, in a situation such as that at issue before the
national court, the central management of a Community-
scale group of undertakings is not located in a Member
State, central management’s responsibility for providing
the employees’ representatives with the information essen-
tial to the opening of negotiations for the establishment
lies with the deemed
of a European Works Council
central management under the second subparagraph of
Article 4(2) of the Directive;

— where central management does not, for the purpose of
establishing a European Works Council, make certain
information available to the deemed central management
under the second subparagraph of Article 4(2) of the
Directive, the latter,
its
obligation to provide information to the employees’
representatives, must request the information essential to
the opening of negotiations for the establishment of such
a council from the other undertakings belonging to the
group which are located in the Member States, and has a
right to receive that information from them;

in order to be able to fulfil

— the management of each of

the other undertakings
belonging to the group which are located in the Member
States is under an obligation to supply the deemed
central management under the second subparagraph of
Article 4(2) of
the Directive with the information
concerned where it is in possession of the information or
is in a position to obtain it;

— the Member States concerned are to ensure that the
management of those other undertakings supplies the
information to the deemed central management under the
second subparagraph of Article 4(2) of the Directive.

(1) OJ C 45 of 10.2.2001.

JUDGMENT OF THE COURT

of 13 January 2004

in Case C-453/00 (Reference for a preliminary ruling from
the College van Beroep voor het bedrijfsleven): Kühne &
Heitz NV v Productschap voor Pluimvee en Eieren (1)

(Poultrymeat — Export refunds — Failure to refer a question
for a preliminary ruling — Final administrative decision —
Effect of a preliminary ruling given by the Court after that
decision — Legal certainty — Primacy of Community law
— Principle of cooperation — Article 10 EC)

(2004/C 47/03)

(Language of the case: Dutch)

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

In Case C-453/00: Reference to the Court under Article 234
EC by the College van Beroep voor het bedrijfsleven (Nether-
lands) for a preliminary ruling in the proceedings pending
before that court between Kühne & Heitz NV and Productschap
voor Pluimvee en Eieren, on the interpretation of Community
law and, in particular, the principle of cooperation arising
from Article 10 EC, 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,
F. Macken, N. Colneric (Rapporteur) and S. von Bahr, Judges;
P. Léger, Advocate General; L. Hewlett, Principal Administrator,
for the Registrar, has given a judgment on 13 January 2004,
in which it has ruled:

21.2.2004

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Official Journal of the European Union

C 47/3

The principle of cooperation arising from Article 10 EC imposes on
an administrative body an obligation to review a final administrative
decision, where an application for such review is made to it, in order
to take account of the interpretation of the relevant provision given in
the meantime by the Court where

— under national law, it has the power to reopen that decision;

— the administrative decision in question has become final as a
result of a judgment of a national court ruling at final instance;

— that judgment is, in the light of a decision given by the Court
subsequent to it, based on a misinterpretation of Community
law which was adopted without a question being referred to the
Court for a preliminary ruling under Article 234(3) EC; and

— the person concerned complained to the administrative body
immediately after becoming aware of that decision of the Court.

(1) OJ C 61 of 24.2.2001.

JUDGMENT OF THE COURT

of 7 January 2004

in Case C-117/01 (Reference for a preliminary ruling from
the Court of Appeal (England & Wales) (Civil Division):
K.B. v National Health Service Pensions Agency, Secretary
of State for Health (1)

(Article 141 EC — Directive 75/117/EEC — Equal treatment
for men and women — Transsexual partner not entitled to a
survivor’s pension payable solely to a surviving spouse —
Discrimination on grounds of sex)

(2004/C 47/04)

(Language of the case: English)

In Case C-117/01: Reference to the Court under Article 234
EC by the Court of Appeal of England and Wales (Civil
Division) for a preliminary ruling in the proceedings pending
before that court between K.B. and National Health Service
Pensions Agency, Secretary of State for Health, on the interpret-
ation of Article 141 EC and of 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 1975 L 45, p. 19), the Court,
composed of: V. Skouris, President, C.W.A. Timmermans,
J.N. Cunha Rodrigues (Rapporteur) and A. Rosas (Presidents
of Chambers), D.A.O. Edward, J.-P. Puissochet, F. Macken,
N. Colneric and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer,

Advocate General; L. Hewlett, Principal Administrator, for the
Registrar, has given a judgment on 7 January 2004, in which
it has ruled:

Article 141 EC, in principle, precludes legislation, such as that at
issue before the national court, which, in breach of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950, prevents a couple
such as K.B. and R. from fulfilling the marriage requirement which
must be met for one of them to be able to benefit from part of the
pay of the other. It is for the national court to determine whether in a
case such as that in the main proceedings a person in K.B.’s situation
can rely on Article 141 EC in order to gain recognition of her right
to nominate her partner as the beneficiary of a survivor’s pension.

(1) OJ C 150 of 19.5.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 11 December 2003

in Case C-215/01 (Reference for a preliminary ruling from
the Amtsgericht Augsburg): Bruno Schnitzer (1)

(Freedom to provide services — Directive 64/427/EEC —
Skilled services in the plastering trade — National rules
requiring foreign skilled-trade undertakings to be entered on
the trades register — Proportionality)

(2004/C 47/05)

(Language of the case: German)

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

In Case C-215/01: Reference to the Court under Article 234
EC by the Amtsgericht Augsburg (Germany) for a preliminary
ruling in the proceedings before that court against Bruno
Schnitzer, on the interpretation of Articles 49 EC, 50 EC, 54
EC and 55 EC and Council Directive 64/427/EEC of 7 July
1964 laying down detailed provisions concerning transitional
measures in respect of activities of self-employed persons in
manufacturing and processing industries falling within ISIC
Major Groups 23-40 (Industry and small craft industries) (OJ,
English Special Edition 1963-1964, p. 148), the Court (Fifth
Chamber), composed of: D.A.O. Edward (Rapporteur), acting
for the President of the Fifth Chamber, A. La Pergola and
S. von Bahr, Judges; J. Mischo, Advocate General; L. Hewlett,
Principal Administrator, for the Registrar, has given a judgment
on 11 December 2003, in which it has ruled: