Case C-178/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht (Germany), by order of that court of 28 January 2004 in the case of Prof. Dr. Franz Marhold v Land Baden-Württemberg
Date: 2004-06-12
Institutions: Court of Justice
Subjects: Baden-Württemberg, bonus payment, civil service, interpretation of the law, national law, occupational status, rights of civil servants, teacher, university

C 156/6

EN

Official Journal of the European Union

12.6.2004

Reference for a preliminary ruling by the Bundesverwal-
tungsgericht (Germany), by order of that court of 28
January 2004 in the case of Prof. Dr. Franz Marhold v
Land Baden-Württemberg

(Case C-178/04)

(2004/C 156/11)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesverwaltungsgericht
(Federal Administrative Court) (Germany), received at the Court
Registry on 15 April 2004, for a preliminary ruling in the case
of Prof Dr Franz Marhold against Land Baden-Württemberg on
the following question:

In the case of an EU national who, as a professor at a
German university, had civil servant status in a German
Land and on that account was in receipt of a special allow-
ance under the Gesetz über die Gewährung einer jährlichen
Sonderzuwendung (Law on the grant of an annual special
allowance, ‘SZuwG’) but before 31 March of the following
year accepted an appointment with a university in another
Member State and entered into a public law employment
relationship with that other Member State,
is Paragraph
3(5)(1) of the SZuwG, under which a person leaving before
the new
31 March may retain the allowance only if
employment relationship is an employment relationship
under German law, inapplicable?

in Article 36 of Legislative Decree No 165 of 30 March
2001 which do not determine ‘under what conditions fixed-
term employment contracts or relationships shall be deemed
to be contracts or relationships of indefinite duration’, and
in fact contain an absolute prohibition from the outset on
the establishment of employment relationships of indefinite
duration resulting from abuse relating to the use of fixed-
term contracts and relationships?

2. If the answer to the first question is in the affirmative, in
view of the expiry of the time-limit for its implementation,
must Council Directive 1999/70/EC of 28 June 1999 (and
in particular Clause 5 of the Annex thereto) and the applic-
able principles of Community law be considered, also in the
light of Legislative Decree No 368/2001 and particularly
Article 5 thereof, which provides as a usual consequence of
abuse of fixed-term contracts or relationships for conversion
to a relationship of indefinite duration, to confer on indivi-
duals an actual right, which may be exercised immediately,
in accordance with the national law most relevant to the
present case (Legislative Decree No 368/2001) to recogni-
tion of the existence of an employment relationship of inde-
finite duration?

3. If the answer to the first question is in the affirmative and
the second question in the negative, in view of the expiry of
the time-limit for its implementation, must Council Direc-
tive 1999/70/EC of 28 June 1999 (and in particular Clause
5 of the Annex thereto) and the applicable principles of
Community law be considered to confer on individuals a
right to reparation for any loss or damage caused by the
failure of the Italian Republic to adopt appropriate measures
to prevent abuse relating to the use of fixed-term contracts
and/or relationships with employers in the public sector?

Reference for a preliminary ruling by the Tribunale di
Genova (Italy) by order of that court of 15 March 2004 in
the case of Andrea Vassallo against Azienda Ospedaliera
Ospedale San Martino di Genova e Cliniche Universitarie
Convenzionate

(Case C-180/04)

(2004/C 156/12)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale di Genova (Italy)
of 15 March 2004, received at the Court Registry on 16 April
2004, for a preliminary ruling in the case of Andrea Vassallo
against Azienda Ospedaliera Ospedale San Martino di Genova e
Cliniche Universitarie Convenzionate on the following ques-
tions:

1. In view of the principles of non-discrimination and effec-
tiveness, having regard in particular to the measures taken
by Italy in relation to employment relationships with non-
public-sector
Directive
1999/70/EC of 28 June 1999 (Article 1, and Clauses 1(b)
and 5 of the ETUC-UNICE-CEEP framework agreement on
fixed-term work set out in the directive) be interpreted as
meaning that it precludes national provisions such as those

employers, must

Council

Reference for a preliminary ruling by the Korkein
hallinto-oikeus by order of that court of 16 April 2004 in
the case of Uudenkaupungin kaupunki

(Case C-184/04)

(2004/C 156/13)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Korkein hallinto-oikeus
(Supreme Administrative Court) of 16 April 2004, received at
the Court Registry on 19 April 2004, for a preliminary ruling
in the case of Uudenkaupungin kaupunki on the following
questions:

1. Is Article 20 of Directive 77/388/EEC (1) to be interpreted as
meaning that the adjustment of deductions in accordance
with that article is mandatory for Member States in the case
of capital goods unless it follows otherwise from Article
20(5)?