Case C-244/04: Action brought on 8 June 2004 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2004-09-11
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, freedom to provide services, migrant worker, work permit

C 228/20

EN

Official Journal of the European Union

11.9.2004

2. If the Court answers Question 1 in the affirmative:

(a) Is it precluded to classify assets as being for independent
commercial use if
they are made available to the
contractor by the contracting authority solely for their
use and responsibility for maintaining those assets,
including
the
contracting authority?

associated costs,

is borne by

the

(b) Is there independent commercial use by the contractor
when, for the purpose of conducting airport security
checks, it uses the walk-through metal detectors, hand-
held metal detectors and X-ray equipment supplied by
the contracting authority?

(1) OJ L 82 of 22.3.2001, p. 16.

Action brought on 8 June 2004 by the Commission of the
European Communities against the Portuguese Republic

(Case C-239/04)

(2004/C 228/39)

— the environmental impact assessment of the project in rela-
tion to implementation of the plan for the abovementioned
stretch of motorway clearly shows that the route concerned
does in fact have a very significant negative impact on 17
species of wild birds referred to in Annex I to Directive
79/409/EEC; and

— there were in fact alternative routes for that stretch of
motorway, which were situated both outside the Castro
Verde SPA and outside the residential areas in the places
mentioned by the Portuguese authorities. Since those alter-
natives are to be found in a corridor to the west of the
Castro Verde SPA between the edge of that area and the ‘IC
1’ road, they are located in flat country with a very low
population density, with the result
the Portuguese
authorities could have selected one of those alternatives
without there being either significant technical difficulties
or unreasonable additional costs.

that

Consequently, the Portuguese Republic did not comply with
Article 6(4) of Directive 92/43/EC. That provision allows a
Member State to carry out a plan or a project in respect of
which there has been a negative environmental impact assess-
ment only where there are no alternative solutions.

(1) OJ L 206 of 22.7.1992, p. 7.
(2) OJ L 305 of 8.11.1997, p. 42.

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 8 June
2004 by the Commission of the European Communities, repre-
sented by Michel Van Beek and António Caeiros, acting as
Agents, with an address for service in Luxembourg.

Action brought on 8 June 2004 by the Commission of the
European Communities against the Federal Republic of
Germany

The applicant claims that the Court should:

— declare that, by implementing a project for a motorway,
whose route crosses the special protection area (SPA) of
Castro Verde, notwithstanding the negative environmental
impact assessment and notwithstanding the existence of
alternative solutions for the route concerned, the Portu-
guese Republic failed to fulfil its obligations under Article
6(4) of Council Directive 92/43/EEC (1) of 21 May 1992 on
the conservation of natural habitats and of wild fauna and
flora, as amended by Directive 97/62/EC of 27 October
1997 (2);

— order the Portuguese Republic to pay the costs.

(Case C-244/04)

(2004/C 228/40)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 8 June 2004 by the Commission of the European
Communities, represented by Gerald Braun and Enrico Traversa
of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments:

for a
The Portuguese authorities
motorway, whose route (the stretch between Aljustrel and
Castro Verde) crosses the special protection area (SPA) of
Castro Verde even though:

implemented a project

1) declare the Federal Republic of Germany in breach of its
obligations under Article 49 EC in that by its practice based
on administrative circulars, it has consistently and dispro-
portionately restricted the posting of non-member-country
workers to Germany for the provision of services;

2) order the Federal Republic of Germany to pay the costs.

11.9.2004

EN

Official Journal of the European Union

C 228/21

Pleas in law and main arguments:

Workers who are nationals of a non-Member State and are to
be posted to Germany in order to provide a service require a
‘work visa’, which is only issued if the worker was employed by
the undertaking making the posting for a minimum of one
year prior to the posting.

without any objective reason, with workers aged 52 and
over and which thus runs counter to the principle of justifi-
cation on objective grounds?

(d) If one of those three questions is answered in the affirma-

tive:

In the view of the Commission, both (1) the practice based on
an internal administrative instruction, of requiring a work
permit in advance and (2) the issuing of such a permit only
an
‘Stammarbeitnehmer’
unjustified and disproportionate restriction on the freedom to
provide services.

(regular/core workers)

constitute

Must the national court refuse to apply the provision of
national law which conflicts with Community law and, in
that case, does the general principle laid down in national
law apply, under which fixed terms of employment are
they are justified on an objective
permissible only if
ground?

(1) OJ 1999 L 175, p. 43.
(2) OJ 2000 L 303, p. 16.

Reference for a preliminary ruling by the Arbeitsgericht
Regensburg (Germany) by order of that court of 16 June
2004 in the case of Gerhard Schmidt against Sennebogen
Maschinenfabrik GmbH

Reference for a preliminary ruling by the Amtsgericht
Breisach (Germany) by decision of that court of 7 June
2004 in the case of Badischer Winzerkeller eG against
Land Baden-Württemberg

(Case C-261/04)

(2004/C 228/41)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Arbeitsgericht Regensburg
(Germany) of 16 June 2004, which was received at the Court
Registry on 21 June 2004, for a preliminary ruling in the case
of Gerhard Schmidt against Sennebogen Maschinenfabrik
GmbH.

The Arbeitsgericht Regensburg asks the Court of Justice to give
a preliminary ruling on the following questions:

(a) Is Clause 8(3) of the Framework Agreement (Council Direc-
tive 1999/70/EC of 28 June 1999 concerning the frame-
work agreement on fixed-term work concluded by ETUC,
UNICE and CEEP) (1) to be interpreted as prohibiting, in the
course of the implementation of that agreement in national
law, any reduced protection as a result of a reduction in the
age limit from 60 to 58?

(b) Is Clause 5(1) of the Framework Agreement (Council Direc-
tive 1999/70/EC of 28 June 1999 concerning the frame-
work agreement on fixed-term work concluded by ETUC,
UNICE and CEEP) to be interpreted as precluding a provi-
sion of national law which — like the provision at issue in
this case — does not contain any of the three restrictions
set out in paragraph 1 of that clause?

(c) Is Article 6 of Council Directive 2000/78/EC of 27
November 2000 (2) establishing a general framework for
equal treatment in employment and occupation to be inter-
preted as precluding a provision of national
law under
which — as under the provision at issue in this case —
concluded,
fixed-term employment

contracts may be

(Case C-264/04)

(2004/C 228/42)

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Amtsgericht Breisach
(Germany), of 7 June 2004, which was received at the Court
Registry on 22 June 2004, for a preliminary ruling in the case
of Badischer Winzerkeller eG against Land Baden-Württem-
berg.

The Amtsgericht Breisach (Germany) asks the Court of Justice
to give a preliminary ruling on the following question:

1. Must Council Directive 69/335/EEC (1) of 17 July 1969
concerning indirect taxes on the raising of capital, in the
version resulting from Council Directive 73/79/EEC (2) of 9
April 1973 varying the field of application of the reduced
rate of capital duty provided for in respect of certain
company reconstruction operations by Article 7(1)(b) of the
Directive concerning indirect taxes on the raising of capital,
Council Directive 73/80/EEC (3) of 9 April 1973 fixing
common
duty, Council Directive
74/553/EEC (4) of 7 November 1974 amending Article 5(2)
of Directive No 69/335/EEC concerning direct taxes on the
raising of capital, and Council Directive 85/303/EEC (5) of
10 June 1985 amending Directive 69/335/EEC concerning
indirect taxes on the raising of capital (hereinafter referred
to as ‘the directive’) be interpreted as meaning that all opera-
tions referred to in Article 10(c) of the directive fall within
the prohibition thereby enacted, irrespective of the condi-
tions in Article 4?

capital

rates

of