Case C-232/04: Reference for a preliminary ruling by the Arbeitsgericht Düsseldorf by order of that court of 5 May 2004 in the case of Ms Nurten Güney-Görres against Securicor Aviation Limited, Securicor Aviation (Germany) Limited, and Kötter Aviation Security GmbH & Co. KG.
Date: 2004-09-11
Institutions: Court of Justice
Subjects: air transport, award of contract, branch of activity, financial management, intermediate goods, interpretation of the law, transfer of businesses

11.9.2004

EN

Official Journal of the European Union

C 228/19

ORDER OF THE COURT

erogazioni in Agricoltura (AGEA) and Cospalat Friuli Venezia
Giulia on the following question:

(Fourth Chamber)

of 10 June 2004

in Case C-555/03 (reference for a preliminary ruling from
the Tribunal du travail de Charleroi): Magali Warbecq v
Ryanair Ltd (1)

(Regulation (EC) No 44/2001 — Jurisdiction in civil and
commercial matters — Court or tribunal having the power
under Article 68 EC to request the Court to give a preli-
minary ruling — Court lacking jurisdiction to give a preli-
minary ruling)

— Since the legal nature of the additional levy on milk and
milk products must therefore be determined in the light of
the provisions of Community law under which that levy
was introduced and the basic rules governing its application
were established (in particular Regulation No 856/84 (1) of
31 March 1984 and Regulation No 3950/92 2 of 28
December 1992), must Article 1 of Regulation (EEC) No
856/84 of 31 March 1984 and Articles 1 to 4 of Regu-
lation No 3950/92 (2) of 28 December 1992 be interpreted
as meaning that
levy on milk and milk
products is in the nature of an administrative penalty with
the result that producers are liable to pay it only where
quantities allocated have been exceeded by them intention-
ally or as a result of negligence?

the additional

(2004/C 228/36)

(Language of the case: French)

(1) OJ L 90 of 1. 4. 1984, p. 10.
(2) OJ L 405 of 31. 12. 1992, p. 1.

In Case C-555/03: reference to the Court under Article 68 EC
by the Tribunal du travail de Chareleroi (Belgium) for a preli-
minary ruling in the proceedings pending before that court
between Magali Warbecq and Ryanair Ltd — on the interpreta-
tion of Council Regulation (EC) No 44/2001 of 22 December
2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (OJ 2001 L 12, p.
1) — the Court (Fourth Chamber), composed of: J.N. Cunha
Rodrigues (Rapporteur), President of the Chamber, K. Schie-
mann and E. Juhász, Judges; A. Tizzano, Advocate General; R.
Grass, Registrar, has made an order on 10 June 2004, the
operative part of which is as follows:

The Court of Justice of the European Communities clearly has no
jurisdiction to answer the questions referred by the Tribunal du travail
de Charleroi (Belgium) by judgment of 15 December 2003.

(1) OJ C 47 of 21.2.2004.

Reference for a preliminary ruling by the Tribunale di
Gorizia by order of that court of 7 April 2004 in the case
of Azienda Agricola Bressan Aldo against Agenzia per le
in Agricoltura (AGEA) and Cospalat Friuli
erogazioni

Venezia Giulia

(Case C-223/04)

(2004/C 228/37)

Reference has been made to the Court of Justice of the Euro-
the Tribunale di Gorizia
pean Communities by order of
(District Court, Gorizia, Italy) of 7 April 2004, received at the
Court Registry on 28 May 2004, for a preliminary ruling in the
case of Azienda Agricola Bressan Aldo against Agenzia per le

Reference for a preliminary ruling by the Arbeitsgericht
Düsseldorf by order of that court of 5 May 2004 in the
case of Ms Nurten Güney-Görres against Securicor Avia-
tion Limited, Securicor Aviation (Germany) Limited, and
Kötter Aviation Security GmbH & Co. KG.

(Case C-232/04)

(2004/C 228/38)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Arbeitsgericht Düsseldorf
(Labour Court Düsseldorf) (Germany) of 5 May 2004 received
at the Court Registry on 3 June 2004, for a preliminary ruling
in the case of Ms Nurten Güney-Görres against Securicor Avia-
tion Limited, Securicor Aviation (Germany) Limited and Kötter
Aviation Security GmbH & Co. KG on the following question:

1. In examining whether there is — irrespective of the ques-
tion of ownership — a transfer of a business within the
meaning of Article 1 of Directive 2001/23/EC (1)
in the
context of a fresh award of a contract, does the transfer of
the assets from the original contractor to the new contractor
— having regard to all the facts — presuppose their transfer
for independent commercial use by the transferee? By exten-
sion, is conferment on the contractor of a right to determine
the manner in which the assets are to be used in its own
commercial interest the essential criterion for a transfer of
assets? On that basis, is it necessary to determine the opera-
tional significance of the contracting authority's assets for
the service provided by the contractor?

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.