Case C-81/05: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León, Sala de lo Social, by order of that court of 28 January 2005 in Anacleto Cordero Alonso v Fondo de Garantía Salarial
Date: 2005-04-16
Institutions: Court of Justice
Subjects: EU law - national law, employer, financial solvency, interpretation of the law, jurisdiction, labour law, national implementing measure, primacy of EU law, social security, work contract

C 93/16

EN

Official Journal of the European Union

16.4.2005

Action brought on 17 February 2005 by the Commission
of the European Communities against the Italian Republic

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Castilla y León, Sala de lo Social,
by order of that court of 28 January 2005 in Anacleto
Cordero Alonso v Fondo de Garantía Salarial

(Case C-79/05)

(2005/C 93/29)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 17 February
2005 by the Commission of the European Communities, repre-
sented by U. Wölker and A. Aresu, acting as Agents.

The Commission claims that the Court should:

in particular in respect of

1. declare that, by failing to adopt all precautionary measures
practicable to prevent and minimise leakages of controlled
substances,
the obligation to
check annually for leakages fixed equipment with a refriger-
ating fluid charge of more than 3 kg, the Italian Republic
has failed to fulfil
its obligations under Article 17(1) of
Regulation (EC) No 2037/2000 of the European Parliament
and of the Council of 29 June 2000 on substances that
deplete the ozone layer; (1)

2. order the Italian Republic to pay the costs.

Pleas in law and main arguments

On the basis of the available information, the Italian Republic
does not appear to have yet adopted any measures in accord-
ance with Article 17(1) of Regulation (EC) No 2037/2000.

(1) OJ L 244 of 29. 9. 2000, p. 1.

(Case C-81/05)

(2005/C 93/30)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Superior de Justicia
de Castilla y León, Sala de lo Social (High Court of Justice of
Castille and León, Social Chamber) (Spain) of 28 January 2005,
the Court Registry on 18 February
which was received at
2005, for a preliminary ruling in the case of Anacleto Cordero
Alonso against Fondo de Garantía Salarial.

The Tribunal Superior de Justicia de Castilla y León, Sala de lo
Social, asks the Court of Justice to give a preliminary ruling on
the following questions:

1. Do the obligation imposed on the Member States to take all
to
appropriate measures, whether general or particular,
ensure fulfilment of the obligations arising out of the Treaty
establishing the European Community or resulting from
action taken by the institutions of the Community (Article
10 EC), and the principle of the primacy of Community law
law imply, of themselves and without the
over national
need for specific provisions of national law, that national
courts have the power to disapply all provisions of national
law which are contrary to Community law, irrespective of
the status of such provisions in the hierarchy of norms
(regulations, laws and even a constitution)?

2.

(a) Where Spanish administrative and judicial

institutions
are required to rule on the right of an employee whose
employer has been declared insolvent to receive, from
the Fondo de Garantía Social, the compensation owed
to him as a result of the termination of a contract of
employment which, under national legislation, is guar-
anteed in the event of insolvency, are they applying
Community law notwithstanding that Articles 1 and 3
of Directive 80/987/EEC (1) do not specifically provide
for compensation in the event of the termination of the
contract?

(b) If so, when applying Directive 80/987/EC and the provi-
sions of national
law transposing the content thereof,
are the Spanish administrative and judicial institutions
bound by the principle of equality before the law and
the prohibition of discrimination deriving from Com-
munity law, as defined by the interpretation thereof
given by the Court of Justice of the European Commu-
nities, notwithstanding that that interpretation does not
coincide with the interpretation in the case-law of the
Spanish Constitutional Court of the equivalent funda-
mental right which is enshrined in the Spanish Constitu-
tion?

16.4.2005

EN

Official Journal of the European Union

C 93/17

(c) If so, does the fundamental right of equality before the
law deriving from Community law impose an obligation
to treat equally cases where the right of an employee to
be compensated for the termination of his contract has
been laid down in a court judgment and cases where
that right is the result of an agreement between the
employee and the employer, entered into under the
supervision and with the approval of a court?

3.

(a) Where, prior

to the entry into force of Directive
2002/74/EC, a Member State had already conferred on
employees a statutory entitlement to protection by a
guarantee institution in the event of an employer's insol-
vency with regard to compensation for the termination
of a contract, is it possible to conclude that the Member
State has been applying Community law since the entry
into force of that directive on 8 October 2002, notwith-
standing that the deadline for transposing the directive
has not expired, where it governs the payment by the
guarantee institution of such compensation for
the
termination of a contract in a case where an employer
was declared insolvent after 8 October 2002?

(b) If so, when applying Directive [2002/74/EC] and the
provisions of national
law transposing the content
thereof, are the Spanish administrative and judicial insti-
tutions bound by the principle of equality before the
law and the prohibition of discrimination deriving from
Community law, as defined by the interpretation thereof
given by the Court of Justice of the European Commu-
nities, notwithstanding that that interpretation does not
coincide with the interpretation in the case-law of the
Spanish Constitutional Court of the equivalent funda-
mental right which is enshrined in the Spanish Constitu-
tion?

(c) If so, does the fundamental right of equality before the
law deriving from Community law impose an obligation
to treat equally cases where the right of an employee to
be compensated for the termination of his contract has
been laid down in a court judgment and cases where
that right is the result of an agreement between the
employee and the employer, entered into under the
supervision and with the approval of a court?

(1) Council Directive 80/987/EEC of 20 October 1980 on the approxi-
mation of the laws of the Member States relating to the protection
of employees in the event of the insolvency of their employer (OJ
1980 L 283, p. 23).

Action brought on 17 February 2005 by the Commission
the Hellenic
of

against

the European Communities
Republic

(Case C-82/05)

(2005/C 93/31)

(Language of the case: Greek)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 17 February
2005 by the Commission of the European Communities, repre-
sented by Maria Patakia, Legal Adviser in its Legal Service, with
an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by equating the process of final baking or
reheating of ‘bake-off’ products with the full bread-making
process and making it subject to the requirements of the
legislation relating to bread-making, the Hellenic Republic
introduces barriers to the import from other Member States
and marketing in Greece of ‘bake-off’ products and infringes
its obligations under Article 28 of the EC Treaty;

2. order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. Following a complaint, the Commission was informed that,
in the absence of specific legislation relating to bread and
bakery products which are either semi-baked or fully baked
and frozen, the ‘bake-off’ method is regarded by the Greek
authorities as a full process for the preparation and baking
of bread. The Greek authorities accordingly permit the short
final baking or the reheating of the products in question at
the point of sale only if the latter meets all the specifications
that are required for bakeries, despite the fact that the ‘bake-
off’ method comprises only the short final baking of semi-
baked bread or the reheating of frozen fully-baked bread,
and none of the previous stages of preparation and baking.
Therefore,
‘bake-off’ products can be placed on the Greek
market either by points of sale which meet the specifications
for bakeries, after being baked to completion or reheated, or
by general
food stores as semi-baked or frozen bakery
products to be baked or reheated later by the consumer. In
both cases, in the Commission's view, ‘bake-off’ products are
accordingly rendered less attractive
the consumer
compared with other baked bakery products.

for