Case C-490/04: Action brought on 29 November 2004 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2005-02-19
Institutions: Court of Justice
Subjects: Germany, action for failure to fulfil an obligation, expatriate worker, freedom to provide services, social-security contribution, temporary employment agency

19.2.2005

EN

Official Journal of the European Union

C 45/13

1. Are Articles 1 to 12 of Commission Regulation (EC) No
1019/2002 (1) of 13 June 2002 on marketing standards for
olive oil (OJ 2002 L 155, p. 27), amended by Commission
Regulation (EC) No 1176/2003 of 1 July 2003 (OJ 2003
L 164, p. 12), to be construed as meaning that those provi-
sions also lay down rules governing the presentation of
unpackaged olive oils and olive-pomace oils to final consu-
mers?

2. Is the first paragraph of Article 2 of Commission Regulation
(EC) No 1019/2002 of 13 June 2002 on marketing stan-
dards for olive oil (OJ 2002 L 155, p. 27), amended by
Commission Regulation (EC) No 1176/2003 of 1 July 2003
(OJ 2003 L 164, p. 12), to be construed as containing a
prohibition of the presentation of unpackaged olive oils and
olive-pomace oils to final consumers?

3. If relevant, is the first paragraph of Article 2 of Commission
Regulation (EC) No 1019/2002 of 13 June 2002 on
marketing standards for olive oil (OJ 2002 L 155, p. 27),
amended by Commission Regulation (EC) No 1176/2003 of
1 July 2003 (OJ 2003 L 164, p. 12), to be construed restric-
tively as meaning that, while it does contain a prohibition
of
the presentation of unpackaged olive oils and olive-
pomace oils to the final consumer, that prohibition does not
apply to the sale of unpackaged olive oils and olive-pomace
oils effected under the ‘Bag in the Box procedure’?

(1) OJ L 155, p. 27.

The applicant claims that the Court should:

1. declare that, by providing that

(a) foreign undertakings are obliged to pay contributions to
the German holiday pay fund for their posted workers,
even if they enjoy an essentially similar level of protec-
tion under the law of the State where their employer is
established (Paragraph 1(3) of the Arbeitnehmerentsen-
degesetz (Law on the Posting of Workers) (‘the AEntG’);

(b) foreign undertakings are obliged to have the employ-
ment contract (or the documents required, pursuant to
Directive 91/533/EEC, under the law of the State where
the employee is resident), pay slips, time sheets, proof of
payment of wages, and all other documents required by
the German authorities, translated into German (Para-
graph 2 of the AEntG);

(c) foreign employment agencies are obliged not only to
give prior notification each time a worker is posted to a
user of the worker's services in Germany, but also each
time a worker starts a new job on a building site at the
request of the user of his services (Paragraph 3(2) of the
AEntG);

the Federal Republic of Germany has failed to fulfil its obli-
gations under Article 49 EC;

2. order the Federal Republic of Germany to pay the costs.

Action brought on 29 November 2004 by the Commission
of the European Communities against the Federal Republic
of Germany

Pleas in law and main arguments

(Case C-490/04)

(2005/C 45/26)

(Language of the case: German)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 29 November 2004 by the Commission of the Euro-
pean Communities, represented by Enrico Traversa and Horstp-
eter Kreppel, acting as Agents, with an address for service in
Luxembourg.

The Commission contends that furthermore certain provisions
of the AEntG which transposed Directive 96/71/EC on the
posting of workers into national
law do not comply with
certain provisions of that directive.

Rules relating to the obligation of employers established in a
Member State other than Germany to pay contributions to the
German holiday pay fund

In the Commission's view, the obligation to pay contributions
to the German holiday pay fund constitutes an inadmissible
restriction on the freedom to provide services, within the
meaning of Article 49 EC, where employers who post their
workers grant them the same paid holiday entitlement as that
laid down by the German rules contained in the collective
agreements and, under the legal system in the State from which
they are posted, such workers enjoy the same or similar protec-
tion with respect to holiday pay as is guaranteed in Germany.

C 45/14

EN

Official Journal of the European Union

19.2.2005

Rules relating to the obligation of employers established in a
Member State other than Germany to translate documents

Aitchison Ltd and Commissioners of Customs and Excise, on
the following questions:

In the Commission's view, the requirement for documents to
be translated is appropriate to meeting Germany's monitoring
needs. However, having regard to the cooperation on informa-
tion provided for by Article 4 of the Directive on the posting
of workers, the obligation to translate all documents is no
longer necessary and is therefore too far-reaching.

Rules relating to the obligation of employment agencies estab-
lished in a Member State other than Germany to notify the
competent authorities of the change before each transfer of a
posted worker from one building site to another one.

Even if
the obligation of employment agencies established
outside Germany to notify each change has been slightly
amended, the Commission is of the view that there is still
in the case of employment agencies
unequal treatment, as,
established in Germany, the obligation to notify each change
falls on the user of the worker's services, while in the case of
employment agencies established outside Germany that obliga-
tion falls in principle on the supplier of labour and can be
transferred to the user of the worker's services only by means
of a contractual agreement. This unequal treatment constitutes
an inadmissible restriction on the freedom to provide services
within the meaning of Article 49 EC.

Reference for a preliminary ruling by the VAT and Duties
Tribunals, Manchester Tribunal Centre, by direction of
that court dated 24 November 2004,
in the case of
Dollond and Aitchison Ltd against Commissioners of
Customs and Excise.

(Case C-491/04)

(2005/C 45/27)

(Language of procedure: English)

Reference has been made to the Court of Justice of the Euro-
pean Communities by a direction of the VAT and Duties Tribu-
nals, Manchester Tribunal Centre dated 24 November 2004,
which was received at the Court Registry on 29 November
2004, for a preliminary ruling in the case of Dollond and

1. Is that part of the payment which is made by a customer to
D&A Lenses Direct Limited for the supply of specified
services by Dolland & Aitchison Ltd or by its franchisees to
be included in the total payment for the specified goods so
as to be part of the price paid or payable for the specified
good within the meaning of Article 29 of Council Regu-
lation no 92/2913 (1) in circumstances where the customer
is a private consumer and importer on whose behalf D&A
Lenses Direct Ltd accounts for VAT on importation?

The specified goods are:

i) Contact lenses

ii) Cleaning Solutions

iii) Soaking cases

The specified services are:

iv) A contact lens examination

v) A contact lens consultation

vi) Any on-going aftercare required by a customer

2. If the answer to 1 above is No, may the amount of the
payment for the specified goods nonetheless be calculated
under Article 29 or is it necessary to make such calculation
under Article 30 of the said Regulations?

3. In view of the fact that the Channel Islands are part of the
customs territory of the Community but are not part of the
VAT territory for the purposes of the Sixth Council Direc-
tive 77/388/EEC (2), does any of the guidance set out in
Case C-349 Card Protection Plan Limited v Commissioners
of Customs and Excise apply for the purposes of deter-
mining which part or parts of the transaction comprising
the provision of specified services and specified goods fall to
be valued for the purposes of applying the Customs Tariff
of the European Communities?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code, OJ L 302, 19.10.1992, p. 1
(2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment,
OJ L 145, 13.06.1977, p. 1