Case C-255/04: Action brought on 14 June 2004 by the Commission of the European Communities against the French Republic
Date: 2004-08-28
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, artistic profession, freedom to provide services, provision of services, trade licence

C 217/12

EN

Official Journal of the European Union

28.8.2004

Reference for a preliminary ruling by the College van
Beroep voor het Bedrijfsleven by judgment of 28 May
2004 in the case of Transport Maatschappij Traffic B.V. v
Staatssecretaris van Economische Zaken

(Case C-247/04)

(2004/C 217/22)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of 28 May 2004 of
the
College van Beroep voor het Bedrijfsleven (Administrative
Court for Trade and Industry), which was received at the Court
Registry on 11 June 2004, for a preliminary ruling in the case
of Transport Maatschappij Traffic B.V. v Staatssecretaris van
Economische Zaken on the following question:

‘Must the term “legally owed” in Article 236 of the Community
Customs Code (the CCC) (1) be understood as referring exclu-
sively to the question whether the conditions for the incurrence
of a customs debt, as set out in Chapter 2 of Title VII of the
CCC, are fulfilled or can legal indebtedness arise only if there
are no grounds, including grounds under the national provi-
sions in force as specified in Article 4(23) of the CCC, for chal-
lenging the notification that duties are owed?’

(1) OJ L 302 of 13.10.1992, p. 1.

tion of the markets in the sugar sector and Commission
Regulation (EEC) No 2670/81 (3) of 14 September 1981
laying down detailed implementing rules in respect of sugar
production wholly or partly invalid in view of the absence
of the possibility of repaying or remitting levies on C sugar
on equitable grounds?

2. If so, does the legal

liability to the levy on C sugar no
longer apply, or may the competent authority of
the
Member State concerned and/or the Commission decide not
to impose the levy on quantities of C sugar in accordance
with Article 3 of Regulation (EEC) No 2670/81, if the party
liable for the levy cannot be accused of any deception or
negligence which may have contributed to the fact that the
export of those quantities intended by him has not taken
place and that in the interests of an investigation by the
national authorities into infringements and irregularities that
party has not been informed of the investigation referred to?

(1) OJ L 175 of 12.7.1979, p. 1.
(2) OJ L 177 of 1.7.1981, p. 4.
(3) OJ L 262 of 16.9.1981, p. 14.

Action brought on 14 June 2004 by the Commission of
the European Communities against the French Republic

(Case C-255/04)

(2004/C 217/24)

Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by order of that court of 9
June 2004 in the case of Koninklijke Coöperatie Cosun
U.A. against Minister van Landbouw, Natuur en Voedsel-
kwaliteit

An action against the French Republic was brought before the
Court of Justice of the European Communities on 14 June
2004 by the Commission of the European Communities, repre-
sented by E. Traversa and A.-M. Rouchaud-Joët, acting as
Agents, with an address for service in Luxembourg.

(Case C-248/04)

(2004/C 217/23)

The applicant claims that the Court should:

— Declare that

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the College van Beroep voor het
bedrijfsleven (Administrative court for trade and industry) of 9
June 2004, received at the Court Registry on 11 June 2004, for
a preliminary ruling in the case of Koninklijke Coöperatie
Cosun U.A. against Minister van Landbouw, Natuur en Voed-
selkwaliteit (Minister for Agriculture, Nature and Food Quality)
on the following questions:

1. If the possibility of remission under Article 13 of Regulation
(EEC) No 1430/79 (1), now replaced by Article 239 of the
Community Customs Code, is not applicable to levies on C
sugar as in the present action, are Council Regulation (EEC)
No 1785/81 (2) of 30 June 1981 on the common organiza-

— by making the grant of a licence to a performing artists'
engagements agency, established in another Member
State, subject to the criterion of the benefit of the agen-
cy's activity in the light of the needs for engagement of
performers,

— by imposing the presumption of employment on a
performing artist who is
recognised as a service
provider and established in his Member State of origin
where he usually provides similar services,

the French Republic has failed to fulfil its obligations under
Articles 43 and 49 EC.

28.8.2004

EN

Official Journal of the European Union

C 217/13

— Order the French Republic to pay the costs.

Staddon Ltd, and J.C. Caulfield, C.F. Caulfield, K.V. Barnes and
Marshalls Clay Products Ltd, on the following questions:

Pleas in law and main arguments:

The regime for granting licences to service providers estab-
lished in another Member State who do not possess a licence
delivered under comparable conditions in their State of origin
is a purely automatic application of the regime which applies
to service providers established in France and takes no account
the evidence and guarantees already submitted in the
of
country of origin. The French regime's requirement
for a
licence in those conditions goes beyond what is necessary to
safeguard the interests of the performers concerned. Also, the
criterion of the benefit of the agency's activity in the light of
the needs for the engagement of performers gives the Ministre
du travail (Minister for Employment) who is responsible for the
grant or withdrawal of the licences, a wholly discretionary
power to exclude a foreign service provider because of a suffi-
ciency of French agencies holding a licence in France.

The presumption of employment applied to a performing artist
recognised as a service provider established in his Member
State of origin where he usually provides similar services
constitutes a restriction on the free movement of services since
it is liable to prevent or impede the service provider's activities
in another Member State where he lawfully provides similar
services and goes beyond what is necessary to fulfil the objec-
tives which underlie it. Furthermore, the presumption is very
difficult to rebut and has consequences not only as regards the
social security system but also as regards paid holidays and the
supplementary retirement regime. Even if it applies without
distinction to national artists and to those of other Member
States, the presumption is a restriction which is liable to hinder
or make less attractive the activities of performing artists estab-
lished in a Member State where they lawfully provide similar
services and which is disproportionate in relation to the objec-
tive pursued.

Reference for a preliminary ruling by the Court of Appeal
(England and Wales), Civil Division, by order of that court
dated 15 June 2004, in the cases of Michael Jason Clarke
against Frank Staddon Ltd and J.C. Caulfield, C.F. Caulfield
and K.V. Barnes against Marshalls Clay Products Ltd

(Case C-257/04)

(2004/C 217/25)

Reference has been made to the Court of Justice of the Euro-
the Court of Appeal
pean Communities by an order of
(England and Wales), Civil Division dated 15 June 2004, which
was received at the Court Registry on 16 June 2004, for a preli-
minary ruling in the cases of Michael Jason Clarke and Frank

1) Does a contractually binding arrangement between an
employer and a worker, which provides that a specific part
of the wages paid to the worker represents that worker's
‘holiday pay’/ (an arrangement known as rolled up holiday
pay), involve a violation of the worker's right to be paid for
his annual leave under Article 7 of the Working Time Direc-
tive 93/104/EC (1)?

2) Would the answer to question 1 be different if the worker
was paid the same before and after the binding arrangement
in question coming into force so that the effect of the
arrangement was not to provide for additional pay, but,
rather, to attribute part of the wages payable to the worker
to holiday pay?

3) If the answer to question 1 is yes, is it a violation of the
right to paid annual leave under Article 7 for credit to be
given for that payment so as to set this off against the enti-
tlement afforded under the Directive?

4) In order to comply with the obligation under Article 7 of
Directive 93/104/EC to ensure that a worker is entitled to
paid annual leave of at least four weeks, is it necessary for
the payment to be made to the worker in the pay period in
which he takes his annual leave, or is it sufficient to comply
with Article 7 that the payment is made throughout the
year in instalments?

(1) Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organization of working time. OJ L 307,
13.12.1993, p. 18-24

Reference for a preliminary ruling by the High Court of
Justice, The Person Appointed by the Lord Chancellor
under Section 76 of the Trade Marks Act 1994, on Appeal
from the Registrar of Trade Marks, by order of that court
dated 26 May 2004, in the case of Elizabeth Emanuel and
Continental Shelf 128 Ltd

(Case C-259/04)

(2004/C 217/26)

Reference has been made to the Court of Justice of the Euro-
pean Communities by an order of the High Court of Justice,
The Person Appointed by the Lord Chancellor under Section
76 of the Trade Marks Act 1994, on Appeal from the Registrar
of Trade Marks, dated 26 May 2004, which was received at the
Court Registry on 16 June 2004, for a preliminary ruling in
the case of Elizabeth Emanuel and Continental Shelf 128
Limited on the following questions: