Case C-261/04: 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
Date: 2004-09-11
Institutions: Court of Justice
Subjects: equal treatment, interpretation of the law, labour law, older worker, temporary employment

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