Case C-441/04: Reference for a preliminary ruling by the Landesgericht Klagenfurt by decision of that court of 13 August 2004 in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt
Date: 2004-12-18
Institutions: Court of Justice
Subjects: application of EU law, door-to-door selling, free movement of goods, interpretation of the law, jewellery and goldsmith's articles

18.12.2004

EN

Official Journal of the European Union

C 314/5

(d) Article 11(2)

(e) Article 12(4)

(f) Article 13(2)(a) and (b)

II. Order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

The period allowed for transposition of Directive 89/391/EEC
(‘the Directive’) into Austrian law expired on 31.12.1993.

The Commission takes the view that the transposition of the
Directive remains incomplete or insufficient.

Firstly, the legislative provisions which the Austrian Govern-
ment promised would transpose the Directive (namely the
Landeslehrer-Dienstrechtsgesetz (LDG), the Beamten-, Kranken-
und Unfallversicherungsgesetz and the Allgemeines Sozialversi-
cherungsgesetz (ASVG)), have not been adopted, and in the
event that they have since come into force, they have not been
notified to the Commission.

Secondly, with regard to certain provisions (in total six) of that
directive, the Commission notes that, in the legislative provi-
sions communicated by the Austrian authorities, the Directive
has been incompletely or incorrectly transposed.

The Commission also complains that even though the scope of
Article 2(1) of Directive 89/391/EEC is exhaustive, none of the
national
in
‘Pflichtschulen’ in the Tirol.

transposition measures

teachers

relate

to

Under Article 7 of the Directive, the employer is obliged to
designate one or several employees to carry out activities
related to the prevention of occupational risks, on condition
that he has suitably qualified personnel available to him. In the
Commission's view, Article 7 of
the Directive favours risk
management within the undertaking, as Article 7(3) only
provides for recourse to qualified personnel outside the under-
taking, when there is a lack of qualified personnel within the
company (see on this point the judgment in Case C-441/01,
Commission v Netherlands [2003]. However,
the Austrian
transposition measures allow the employer to choose whether
to entrust protective activities either to safety specialists from
within the company or outside the company.

Article 8(2) (Duty to take the necessary measures for first aid,
fire-fighting and evacuation of workers) does not provide for
any exception for small undertakings in the Commission's
view. However, under the Austrian transposition measures,
small undertakings are exempt from this obligation.

The Commission is of the view that the measures transposing
Article 11(2) of the Directive do not cover certain duties to

inform on the part of the employer, as provided for in that
Article.

Article 12(4) of the Directive states that the training referred to
in that Article may not be at the workers' expense.

Whilst the Austrian transposition measures stipulate that time
spent attending such training is to be considered as remuner-
ated work, they do not stipulate who should bear the cost of
such training.

Finally, the Commission complains that Article 13(2)(a) and (b)
the Directive has not been completely transposed into
of
Austrian law. Contrary to Article 13(2)(b), the concept of ‘work
equipment’ within the meaning of Article 15 of the Arbeitneh-
merInnenschutzgesetz (ASchG)
(Law on the Protection of
Workers) and Article 15 of the Bundesbedienstetenschutzgesetz
(B-BSG) (Law on the Protection of Federal State Personnel) does
not cover dangerous substances. Furthermore, the obligation
laid down in Article 13(2)(b) to return personal protective
equipment to its proper place after use has not been transposed
into Austrian law.

Reference for a preliminary ruling by the Landesgericht
Klagenfurt by decision of that court of 13 August 2004 in
the case of A-Punkt Schmuckhandels GesmbH against
Claudia Schmidt

(Case C-441/04)

(2004/C 314/08)

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Landesgericht Klagenfurt
(Austria) of 13 August 2004,
(Klagenfurt Regional Court)
received at the Court Registry on 21 October 2004, for a preli-
minary ruling in the case of A-Punkt Schmuckhandels GesmbH
against Claudia Schmidt on the following questions:

1. Are Articles 28/30 EC to be interpreted as guaranteeing the
freedom of the defendant, in the course of her trade, to sell
silver jewellery by way of calling on private individuals for
the purposes of selling, and collecting orders for, silver
jewellery?

2. If so, does a rule of a Member State which prohibits the sale
of silver jewellery by way of calling on private individuals
for the purposes of selling, and collecting orders for, silver
jewellery constitute a restriction on the free movement of
goods within the meaning of Articles 28/30 EC?

C 314/6

EN

Official Journal of the European Union

18.12.2004

3. If so, is a national rule which, contrary to Articles 28/30
EC, prohibits the sale of silver jewellery by way of calling on
private individuals for the purposes of selling, and collecting
orders for, silver jewellery not contrary to the right of an
individual
to sell silver jewellery by way of calling on
private individuals for the purposes of selling, and collecting
orders for, silver jewellery?

Reference for a preliminary ruling by the Finanzgericht
Düsseldorf by order of that court of 13 October 2004 in
the case of Possehl Erzkontor GmbH against Hauptzollamt
Duisburg

(Case C-445/04)

(2004/C 314/09)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Düsseldorf
(Düsseldorf Finance Court)
(Germany) of 13 October 2004,
received at the Court Registry on 21 October 2004, for a preli-
minary ruling in the case of Possehl Erzkontor GmbH against
Hauptzollamt Duisburg on the following question:

Does fused magnesia of the kind described in detail
in this
order, which is caustic-burned from natural mined magnesite
and obtained in a second processing stage by fusion in an elec-
tric arc furnace, come under subheading 2519 90 10 of
Annex I to the Combined Nomenclature?

Reference for a preliminary ruling by the Landesgerichts
Innsbruck by decision of that court of 30 September 2004
in the case of Autohaus Ostermann GmbH against VAV
Versicherungs AG

(Case C-447/04)

(2004/C 314/10)

liability in respect of

of the laws of the Member States relating to insurance against
civil
the use of motor vehicles and
amending Council Directives 73/239/EEC and 88/357/EEC
(Fourth motor insurance Directive) (1)
to be interpreted as
meaning that the insurance company against which a claim has
been made is always subject to a three-month time-limit to deal
with the matter, even in the case of a simple factual and legal
situation, or that this refers merely to a ‘setting of the due date’,
which does not exclude earlier settlement of the claim by the
insurance company after the setting of an ‘appropriate’ time-
limit for payment which is also within the three-month period?

(1) OJ L 181, p. 65.

Action brought on 27 October 2004 by the Commission
of the European Communities against the Grand Duchy of
Luxembourg

(Case C-448/04)

(2004/C 314/11)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 27 October 2004 by the Commission of the European
Communities, represented by C. O'Reilly and A.-M. Rouchaud-
Joët, acting as Agents, with an address for service in Luxem-
bourg.

The Commission of the European Communities claims that the
Court should:

1. declare that, by failing to adopt the laws, regulations and
administrative provisions which are necessary in order to
comply with Council Directive 2001/40/EC of 28 May
2001 on the mutual recognition of decisions on the expul-
sion of third country nationals (1) or, in any event, by failing
to inform the Commission of them, the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under that
directive;

2. order the Grand Duchy of Luxembourg to pay the costs.

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Landesgericht Innsbruck
(Austria) of 30 September 2004, which was received at the
Court Registry on 27 October 2004, for a preliminary ruling in
the case of Autohaus Ostermann GmbH against VAV Versi-
cherungs AG.

Pleas in law and main arguments

The period for transposing the directive into national
expired on 2 December 2002.

law

The Landesgericht Innsbruck asks the Court of Justice to give a
preliminary ruling on the following question:

(1) OJ L 149 of 2.6.2001, p. 34.

Is Article 4(6) of Directive 2000/26/EC of the European Parlia-
ment and the Council of 16 May 2000 on the approximation