Case C-127/05: Action brought on 21 March 2005 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland
Date: 2005-06-11
Institutions: Court of Justice
Subjects: European Commission, United Kingdom, action for failure to fulfil an obligation, labour law, working conditions

C 143/18

EN

Official Journal of the European Union

11.6.2005

4. Is Article 5(3) of Group Exemption Regulation No
1475/95 to be interpreted as requiring that the termina-
tion of an agreement with a dealer on one year's notice
must be effected on the basis of a reorganisation plan
already drawn up by the supplier?

— for the supplier to be able to terminate the agreement
on one year's notice under that provision — can be satis-
fied simply on the grounds that the implementation of
Group Exemption Regulation No 1400/2002 in itself
could have necessitated a radical reorganisation of
the
supplier's dealer network?

5. If Question 4 is answered in the affirmative:

What requirement can be placed under Community law on
the content and form of a reorganisation plan drawn up
by the supplier and when must the reorganisation plan be
submitted?

6. If the answer to Question 4 is in the affirmative:

Must the supplier inform the dealer whose contract has
been terminated of the content of the reorganisation plan,
and when and in what form must notification to the dealer
be effected in a particular case?

7. If the answer to Question 4 is in the affirmative:

What is the consequence of a reorganisation plan not
fulfilling the requirement which may be placed on the
form and content of such a plan?

‘… det er nødvendigt at

8. According to the Danish version of Article 5(3) of Group
Exemption Regulation No 1475/95, the supplier's termina-
tion of an agreement with a dealer on one year's notice
presupposes that
foretage en
gennemgribende reorganisering af hele forhandlernettet
eller en del heraf …’ (it is necessary to reorganise radically
the whole or part of the network). The word ‘necessary’
appears in all the language versions of Group Exemption
Regulation No 1475/95 but the word ‘gennemgribende’
(radically) appears only in the Danish version.

In this context:

What requirement may be placed on the nature of the
reorganisation so that the supplier is able to terminate the
dealer's contract on one year's notice under Article 5(3) of
Group Exemption Regulation No 1475/95?

9. In assessing whether the conditions — for the supplier to
be able to terminate the agreement on one year's notice
under Article 5(3) of Group Exemption Regulation No
is it of importance what the
1475/95 — are satisfied,
economic consequences would be for the supplier if it had
terminated the dealer's contract on two years' notice?

10. Who bears the burden of proving that the conditions for
the supplier being able to terminate the agreement on one
year's notice under Article 5(3) of Group Exemption Regu-
lation No 1475/95 are satisfied, and how can such a
burden of proof be lifted?

11. Is Article 5(3) of Group Exemption Regulation No
1475/95 to be interpreted as meaning that the conditions

(1) OJ L 145 of 29.6.1995, p. 25.

Action brought on 21 March 2005 by the Commission of
the European Communities against the United Kingdom of
Great Britain and Northern Ireland

(Case C-127/05)

(2005/C 143/26)

(Language of the case: English)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of the
European Communities on 21 March 2005 by the Commission
of the European Communities, represented by M.-J. Jonczy and
N. Yerrell, of its Legal Service.

The Commission claims that the Court should:

1. declare that

in restricting the duty upon employers to
ensure the safety and health of workers in every aspect
related to the work to a duty to do this ‘so far as is reason-
ably practicable’, the United Kingdom has failed to fulfil its
obligations under Articles 5(1) and 5(4) of Council Directive
89/391/EEC of 12th
June 1989 on the introduction of
measures to encourage improvements in the safety and
health of workers at work (1);

2. order the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

Pleas in law and main arguments

The Commission's complaint is based upon Section 2(1) of the
Health and Safety at Work Act 1974 which states that it shall
be the duty of every employer to ensure the health, safety and
welfare of all his employees at work ‘so far as is reasonable prac-
ticable’. The Commission considers that this qualification placed
upon the employers' duty is incompatible with Articles 5(1)
and 5(4) of Directive 89/391/EEC (‘the Directive’).

11.6.2005

EN

Official Journal of the European Union

C 143/19

The Commission maintains that:

i) Article 5(1) imposes responsibility upon the employer in
relation to all events adverse to the health and safety of his
workers unless the very special circumstances of Article
5(4) can be invoked.

ii) This is confirmed inter alia by the legislative history of the
Directive and the express rejection of the inclusion of a ‘so
far as is reasonable practicable’ clause by the Community
legislator.

iii) By way of contrast, the UK's legislation (as interpreted by
the national courts) permits an employer to escape respon-
sibility if he can prove that the sacrifice involved in taking
time or trouble,
further measures, whether
would be grossly disproportionate to the risk.

in money,

iv) This ‘balancing test’ is apparently applied by the national
courts in all cases and not only in the exceptional situations
falling within Article 5(4) of the Directive.

v) Further, the assessment of what is ‘reasonably practicable’
permits the incorporation of considerations of the cost (in
financial terms) to the employer, contrary to Article 5(4) of
the Directive as read in light of its 13th recital.

(1) OJ L 183, p. 1.

Reference for a preliminary ruling from the College van
Beroep voor het bedrijfsleven te 's-Gravenhage by order
of that court of 17 March 2005 in N.V. Raverco v Minister
van Landbouw, Natuur en Voedselkwaliteit

(Case C-129/05)

(2005/C 143/27)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the College van Beroep voor het
bedrijfsleven te 's-Gravenhage (Administrative Court for Trade
and Industry) (Netherlands) of 17 March 2005, received at the

Court Registry on 21 March 2005, for a preliminary ruling in
the proceedings between N.V. Raverco and Minister van Land-
bouw, Natuur en Voedselkwaliteit on the following questions:

1. Must the introduction to and subparagraph (a) of Article
17(2) of Directive 97/78/EC (1) be so interpreted that the
objection to the redispatch of a consignment that does not
satisfy the import conditions lies in the non-satisfaction of
the Community conditions for import or in the conditions
that apply at the destination outside the territories listed in
Annex I
to Directive 97/78/EC agreed with the person
responsible for the load?

2. Must the introduction to and subparagraph (a) of Article
17(2) of Directive 97/78/EC, read in conjunction with
Article 22(2) of Directive 97/78/EC and Article 5 of Regu-
lation 2377/90/EEC (2), be so interpreted that in all cases in
which any one of the checks provided for in Directive
97/78/EC indicates that a consignment of products is likely
to constitute a danger to animal or human health this provi-
sion imperatively requires the destruction of the consign-
ments of animal products concerned?

3. Must Article 22 of Directive 97/78/EC, in conjunction with
Article 5 of Regulation 2377/90/EEC, be so interpreted that
the mere fact that residues of a substance listed in Annex V
to Regulation 2377/90/EC are found in a consignment
means that the consignment in question is likely to consti-
tute such a danger to animal or human health as to preclude
redispatch?

4. If the second question is answered in the negative, must
Article 17(2) of Directive 97/78/EC be so interpreted that it
also serves to protect the interests of the third country into
which, after redispatch, the consignment is to be imported,
even if those interests do not also involve the protection of
an interest that can be located in Member States of the EU?

(1) Council Directive 97/78/EC of 18 December 1997 laying down the
principles governing the organisation of veterinary checks on
products entering the Community from third countries (OJ 1997 L
24 , p. 9.)

(2) Council Regulation (EEC) No 2377/90 of 26 June 1990 laying
down a Community procedure for the establishment of maximum
residue limits of veterinary medicinal products in foodstuffs of
animal origin (OJ L 224, p. 1).