Case C-465/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione by decision of that court of 11 June 2004 in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti
Date: 2005-02-05
Institutions: Court of Justice
Subjects: approximation of laws, freedom to provide services, interpretation of the law, remuneration of work, right of establishment, sales occupation, self-employed person, work contract

C 31/4

EN

Official Journal of the European Union

5.2.2005

provisions

administrative

1. Declares that, by failing to adopt the necessary laws, regulations
and
comply with Directive
2001/29/EC of the European Parliament and of the Council of
22 May 2001 on the harmonisation of certain aspects of copy-
right and related rights in the information society, the Republic of
Finland has failed to fulfil its obligations under that directive;

to

2. Orders the Republic of Finland to pay the costs.

(1) OJ C 85, 3.4.2004.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 9 December 2004

in Case C-333/04: Commission of the European Commu-
nities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations — Directive
1999/92/EC — Protection of workers — Exposure to risk of
explosive atmospheres — Failure to transpose)

(2005/C 31/09)

(Language of the case: French)

In Case C-333/04: Commission of the European Communities
(Agents: D. Martin and H. Kreppel) v Grand Duchy of Luxem-
bourg (Agent: S. Schreiner) – ACTION under Article 226 EC
for failure to fulfil obligations, brought on 2 August 2004 –
the Court (Sixth Chamber), composed of: A. Borg Barthet,
President of Chamber (Judge Rapporteur), J. Malenovský and U.
Lõhmus, Judges; L.A. Geelhoed, Advocate General; R. Grass,
Registrar, gave a judgment on 9 December 2004, in which it:

to

provisions

administrative

1. Declares that, by failing to adopt the necessary laws, regulations
and
comply with Directive
1999/92/EC of the European Parliament and of the Council of
16 December 1999 on minimum requirements for improving the
safety and health protection of workers potentially at risk from
(15th individual Directive within the
explosive atmospheres
meaning of Article 16(1) of Directive 89/391/EEC), the Grand
Duchy of Luxembourg has failed to fulfil its obligations under
that directive;

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

(1) OJ C 228, 11.9.2004.

Reference for a preliminary ruling by the Corte Suprema
di Cassazione by decision of that court of 11 June 2004 in
the case of Honyvem Informazioni Commerciali S.r.l.
against Mariella De Zotti

(Case C-465/04)

(2005/C 31/10)

(Language of the case: Italian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Corte Suprema di Cassa-
zione (Court of Appeal, Milan) (Italy) of 11 June 2004 received
at the Court Registry on 3 November 2004, for a preliminary
ruling in the case of Honyvem Informazioni Commerciali S.r.l.
against Mariella De Zotti on the following questions:

the national

Given the tenor and purpose of Article 17 of the directive and,
where applicable, of the criteria it offers for calculating the
indemnity for which it provides, can Article 19 be interpreted
as meaning that
legislation implementing the
directive can permit that a collective agreement (or contract)
that is binding on the parties to certain contracts provides not
for an indemnity owed to the agent in the set of circumstances
set out in the second paragraph of Article 17 and payable in
accordance with criteria that can be deduced therefrom but for
an indemnity which is owed to the agent without regard to the
conditions set out in the two indents of paragraph 2 a) (and for
part of the indemnity whatever the reason for termination of
the contract) and is calculated not in accordance with the
criteria to be found in the directive (and, where applicable, at
the maximum amount specified therein) but in accordance
with the criteria set in the collective economic agreement. That
is to say an indemnity determined (without any specific refer-
ence to the increase in business generated by the agent) on the
remuneration
basis of predetermined percentages of
received by the agent in the course of the relationship, with the
result that, even if the requirements of the directive for entitle-
ment to the indemnity are met fully or to a high degree, in
many cases the level of the indemnity to be paid would have to
be lower (sometimes much lower) than the ceiling provided for
in the directive and in any event lower than could have been
decided in specific terms by the court if it were not bound by
the calculation parameters laid down in the collective economic
agreement rather than the principles and criteria of the direc-
tive.

the

Should the indemnity be calculated individually by estimating
the further commissions that the agent could presumably have
earned in the years following termination of the contract on
the basis of the new customers he has brought or the substan-
tial growth in business with existing customers that he has
generated, and only then applying any adjustments to the
amount, having in mind the criterion of equity and the ceiling
laid down in the directive; or are other methods of calculation
permitted, in particular composite methods that evaluate the
criterion of equity more broadly and take the ceiling specified
in the directive as their point of departure.

5.2.2005

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Official Journal of the European Union

C 31/5

In conclusion, pursuant to Article 234 EC, the questions indi-
cated above regarding the interpretation of Articles 17 and 19
of Council Directive 86/653/EEC of 18 December 1986 on the
coordination of the laws of the Member States relating to self-
employed commercial agents must be referred to the Court of
Justice.

Reference for a preliminary ruling by the Gerechtshof
Arnhem, by decision of that court of 27 October 2004 in
the case of N. against Inspecteur van de Belastingdienst
Oost/Kantoor Almelo

(Case C-470/04)

(2005/C 31/11)

pursued within a foreseeable period? If so, how long
may that period be?

1.1.3 If the answer to question 1.1.1 or 1.1.2 is affirmative, do
Articles 18 or 43 EC preclude the relevant Dutch legisla-
tion by virtue of which an assessment to income tax and
social insurance contributions is served in respect of the
deemed enjoyment of profit from a substantial share-
holding, solely on the ground that a resident of the Neth-
erlands who ceases to be a domestic taxpayer because he
has moved his place of residence to another Member
State is deemed to have disposed of those of his shares
which form part of a substantial holding?

1.1.4 If the answer to question 1.1.3 is affirmative because of
the fact that security has to be provided to enable a
deferment of payment of
the tax assessed, can the
existing obstacle then be removed with retroactive effect
through the release of the security provided? Does the
answer to this question depend on whether the security
is released on the basis of legislation or a rule of policy,
whether or not adopted in the context of enforcement?
Does the answer to this question depend on whether
compensation is provided for any loss incurred as a
result of the provision of security?

(Language of the case: Dutch)

1.1.5 If the answer to question 1.1.3 is affirmative and the
answer to the first question in 1.1.4 is negative, can the
obstacle which then exists be justified?

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Gerechtshof Arnhem,
(Court of Appeal, Arnhem) (Netherlands) of 27 October 2004
received at the Court Registry on 2 November 2004, for a
preliminary ruling in the case of N. against Inspecteur van de
Belastingdienst Oost/Kantoor Almelo on the following ques-
tions:

1.1.1 Can a resident of a Member State who ceases to reside in
to establish himself
in
that Member State in order
another Member State rely,
in proceedings against the
Member State which he is leaving, on the application of
Article 18 EC, solely on the ground that the serving of a
tax assessment linked with his departure entails, or may
entail, an obstacle to that departure?

1.1.2 If the answer to question 1.1.1 is negative, can a resident
of a Member State who ceases to reside in that Member
State in order to establish himself in another Member
State rely,
the Member State
which he is leaving, on the application of Article 43 EC
if it is not clear or plausible from the outset that he will
be pursuing in the other Member State an economic
activity as referred to in that article? Is it relevant to the
answer to the previous question that that activity will be

in proceedings against

Action brought on 16 November 2004 by the Commission
of the European Communities against the Italian Republic

(Case C-477/04)

(2005/C 31/12)

(Language of the case: Italian)

Justice of

An action against the Italian Republic was brought before the
the European Communities on 16
Court of
November 2004 by the Commission of the European Commu-
nities, represented by Chiara Cattabriga and Barry Doherty,
acting as Agents.