Case C-23/05: Action brought on 25 January 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2005-04-02
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, arrangement of working time, carrier, organisation of work, working time

2.4.2005

EN

Official Journal of the European Union

C 82/9

Reference for a preliminary ruling from the Gerechtshof
te Amsterdam by judgment of that court of 28 December
2004 in Kawasaki Motors Europe NV v Inspecteur van de
Belastingdienst/Douane district Rotterdam

(Case C-15/05)

(2005/C 82/18)

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

1. declare that, by excluding persons working in fairground
undertakings from the scope of national measures trans-
posing Council Directive 93/104/EC of 23 November 1993
concerning certain aspects of the organisation of working
time, (1) the Kingdom of Belgium has failed to fulfil its obli-
gations under Articles 1(3) and 17 of that directive;

(Language of the case: Dutch)

2. order the Kingdom of Belgium to pay the costs.

Reference has been made to the Court of Justice of the Euro-
te
pean Communities by judgment of
Amsterdam (Amsterdam Regional Court of Appeal)
(Nether-
lands) of 28 December 2004, received at the Court Registry on
19 January 2005, for a preliminary ruling in the proceedings
between Kawasaki Motors Europe NV and Inspecteur van de
Belastingdienst/Douane district Rotterdam on the following
questions:

the Gerechtshof

1. Is Commission Regulation (EC) No 2518/98 (1)of 23
November 1998 concerning the classification of certain
goods in the Combined Nomenclature (OJ 1998 L 315)
valid in so far as the new, four-wheel all terrain vehicles
described at point 5 of the Annex thereto are classified as a
vehicle designed for the transport of persons within the
meaning of subheading 8703 21 of the CCT?

2. If the regulation is invalid, can the CCT be interpreted as
meaning that the goods at issue can be classified under one
of the subheadings of heading 8701 90 of the CCT?

(1) Commission Regulation (EC) No 2518/98 of 23 November 1998
concerning the classification of certain goods in the Combined
Nomenclature (OJ 1998 L 315, p. 3).

Pleas in law and main arguments

The exclusion of persons working in fairground undertakings
from the scope of national
legislation transposing Council
Directive 93/104/EC of 23 November 1993 concerning certain
aspects of the organisation of working time is not provided for
by Article 1(3) of that directive defining its scope. According to
that provision, the Directive applies to all sectors of activity,
with the exception of air, rail, road, sea, inland waterway and
lake transport, sea fishing, other work at sea and the activities
of doctors in training. The category of persons working in fair-
ground undertakings is not referred to in that article and more-
over does not satisfy the conditions of any of the derogations
allowed by Article 17 of the Directive, which furthermore have
not been relied on by the Belgian authorities. By introducing an
exception which the Directive itself did not provide for,
Belgium has
thereby
failing to fulfil its obligations.

incorrectly transposed that directive,

(1) OJ L 307, 13.12.1993, p. 18

Action brought on 25 January 2005 by the Commission of
the Kingdom of
the European Communities against

Action brought on 25 January 2005 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

Belgium

(Case C-22/05)

(2005/C 82/19)

(Case C-23/05)

(2005/C 82/20)

(Language of the case: French)

(Language of the case: French)

Justice of

An action against the Kingdom of Belgium was brought before
the European Communities on 25
the Court of
January 2005 by the Commission of the European Commu-
nities, represented by G. Rozet and N. Yerrell, acting as Agents,
with an address for service in Luxembourg.

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 25 January 2005 by the Commission of the European
Communities, represented by G. Rozet and N. Yerrell, acting as
Agents, with an address for service in Luxembourg.

C 82/10

EN

Official Journal of the European Union

2.4.2005

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

1. declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2000/34/EC of the European Parliament and of the
Council of 22 June 2000 amending Council Directive
93/104/EC concerning certain aspects of the organisation of
working time to cover sectors and activities excluded from
that directive (1) or, in any event, by failing to communicate
those provisions to the Commission, the Grand Duchy of
Luxembourg has failed to fulfil its obligations under Article
2(1) of that directive;

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

Pleas in law and main arguments

The period for transposition of the Directive into national law
expired on 1 August 2003.

(1) OJ L 195, 01.08.2000, p. 41.

Reference for a preliminary ruling from the Landesgericht
Korneuburg (Austria) by order of that court of 13 January
2005 in Plato Plastik Robert Frank GmbH v CAROPACK
Handels GmbH

(Case C-26/05)

(2005/C 82/21)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Landesgericht Korneuburg
(Austria) of 13 January 2005,
(Regional Court, Korneuburg)
received at the Court Registry on 27 January 2005, for a preli-
minary ruling in the proceedings between Plato Plastik Robert
Frank GmbH and CAROPACK Handels GmbH on the following
questions:

ging, and does this also apply to carrier bags? Is the
producer
(supplier) of products described in the first
sentence of Article 3(1), namely products used for the
containment, protection, handling, delivery and presentation
of goods, and non-returnable items used for the same
purposes, therefore a producer (supplier) of packaging mate-
rials (packaging products) and not a producer of sales packa-
ging, grouped packaging or transport packaging (packaging
producer; compare the corresponding terms in Article 3(11)
of the directive)?’

2. First additional question, should the principal question be
answered in the affirmative: ‘Is the producer of a carrier bag
accordingly not a producer of sales packaging, grouped
packaging or transport packaging but a producer of packa-
ging materials (packaging products)?’

3. Second additional question, should the first additional ques-
tion be answered in the affirmative: ‘Is it contrary to Com-
munity law, in particular to the principle of equality, to the
prohibition on objectively unjustified restrictions on the
freedom to carry on a business and to the prohibition on
creating distortions of competition, for the legislation of a
Member State to provide, on pain of a penalty, that the
producer of packaging materials, particularly of carrier bags,
must either accept their return or participate in a collection
and recovery system in this regard, unless a party further
down the distribution chain takes over that obligation and
provides the producer of the packaging materials with a
legally valid declaration on the matter?’

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 5 January 2005 in
Elfering Export GmbH v Hauptzollamt Hamburg-Jonas

(Case C-27/05)

(2005/C 82/22)

(Language of the case: German)

1. Principal question: ‘For the purposes of European Parliament
and Council Directive 94/62/EC of 20 December 1994, is
the producer of sales packaging, grouped packaging or
transport packaging, namely the packaging producer, always
the party which, in the course of the exercise of its profes-
sional activity, brings goods, or has goods brought, directly
or indirectly together with the product intended as packa-

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg
(Finance Court, Hamburg)
(Germany) of 5 January 2005,
received at the Court Registry on 27 January 2005, for a preli-
minary ruling in the proceedings between Elfering Export
GmbH and Hauptzollamt Hamburg-Jonas on the following
question: