Case C-480/04: Reference for a preliminary ruling from the Tribunale di Viterbo by order of that court of 2 November 2004, received at the Court Registry on 17 November 2004, in the criminal proceedings pending before it against Antonello D'Antonio
Date: 2005-02-05
Institutions: Court of Justice
Subjects: EU Member State, Italy, competition law, foreign enterprise, freedom to provide services, interpretation of the law, monopoly, public service

5.2.2005

EN

Official Journal of the European Union

C 31/7

2. Does Article 4(2) of Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related
rights in the information society preclude a Member State
from retaining international exhaustion in its legislation?

The second question is aimed at clarifying whether a Member
State wishing to accord greater weight to freedom of expression
and citizens' access to cultural goods than to the wish to
protect national rightholders against competition may derogate
from Article 4(2).

(1) OJ L 167, 22.6.2001, p. 10.

Action brought on 23 November 2004 by the Commission
of the European Communities against the United Kingdom

(Case C-484/04)

(2005/C 31/16)

(Language of procedure: English)

Reference for a preliminary ruling from the Tribunale di
Viterbo by order of that court of 2 November 2004,
received at the Court Registry on 17 November 2004, in
the criminal proceedings pending before it against Anto-
nello D'Antonio

(Case C-480/04)

(2005/C 31/15)

(Language of the case: Italian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale di Viterbo (Italy)
of 2 November 2004, received at the Court Registry on 17
November 2004,
for a preliminary ruling in the criminal
proceedings pending before it against Antonello D'Antonio on
the following question:

‘Are Articles 4(1) and 4a of Law 401/89, as subsequently
amended, which at present reserve to Italian public-service
agents alone, and not also to the intermediaries of foreign
bookmakers,
the activity in question in these proceedings,
compatible with Articles 31, 86, 43 and 49 of the EC Treaty?’

Justice of

An action against the United Kingdom was brought before the
Court of
the European Communities on 23
November 2004 by the Commission of the European Commu-
nities, represented by Gérard Rozet and Nicola Yerrell, acting as
agents, with an address for service in Luxembourg.

The Applicant claims that the Court should declare that:

1) in applying the derogation to workers whose working time
is partially not measured or predetermined or can be deter-
mined by the worker himself; and

2) in failing to adopt adequate measures for the implementa-
tion of the rights to daily and weekly rest,
the United
Kingdom has failed to fulfil its obligations under Article 17,
paragraph 1 of Council Directive 93/104/EC of 23rd
November 1993 concerning certain aspects of the organisa-
tion of working time (1) and Article 249 EC. order the
United Kingdom to pay the costs.

Pleas in law and main arguments:

Application of the Derogation in Article 17(1)

Article 17(1) of the Directive provides for the possibility for
Member States to derogate from certain articles of the Directive
when, on account of the specific characteristics of the activity
concerned, the duration of working time is not measured or
predetermined or can be determined by the workers them-
selves.

The UK implemented the Directive into national law via the
Working Time Regulations 1998 (SI 1998/1833) (‘the 1998
Regulations’). These Regulations initially included in regulation
20 a derogation to the provisions relating to maximum weekly
working time, length of night work, daily and weekly rest and
rest breaks which broadly mirrored the terms of Article 17(1)
of the Directive.