Case C-177/05: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras by order of that court of 30 March 2005 in Maria Cristina Guerrero Pecino v Fondo de Garantía Salarial (FOGASA)
Date: 2005-06-25
Institutions: Court of Justice
Subjects: approximation of laws, employer, financial solvency, interpretation of the law, labour law, severance pay, staff regulations

25.6.2005

EN

Official Journal of the European Union

C 155/7

Is Article 2(3) of Decision 2003/199/EC (1) valid?

(1) Council Decision of 18 March 2003 concerning the non-inclusion
of aldicarb in Annex I to Council Directive 91/414/EEC and the
withdrawal of
for plant protection products
containing this active substance (OJ L 76 of 22 March 2003, p. 21).

authorisations

The Irish authorities have relied upon Article 5(3) of the Direc-
tive and exempted by Order ‘stated classes of institutions from
payment of remuneration in respect of lending in practice’. The
scope of this exemption is so wide that it permits all public
educational and academic institutions to which the members of
the public have access to engage in public lending with the
result that all public lending institutions are exempt from the
lending right and are also absolved from payment of remunera-
tion.

The Commission maintains that
this situation clearly goes
beyond the scope of the exceptions permitted by Article 5(3) of
the Directive and that Ireland therefore has failed to fulfil its
obligations under Articles 1 and 5 of the Directive.

Action brought on 19 April 2005 by Commission of the
European Communities against Ireland

(1) OJ L 346, 27.11.1992, p. 61

(Case C-175/05)

(2005/C 155/13)

(Language of the case: English)

An action against Ireland was brought before the Court of
Justice of the European Communities on 19 April 2005 by the
the European Communities, represented by
Commission of
Michael Shotter and Wouter Wils, acting as Agents, with an
address for service in Luxembourg.

The applicant claims that the Court should:

1. declare that by exempting all categories of public lending
establishments, within the meaning of Council Directive
92/100/EEC of 19 November 1992 on rental right and
lending right and on certain rights related to copyright in
the field of intellectual property (1),
Ireland has failed to
fulfil its obligations under Articles 1 and 5 of that Directive;

2. order Ireland to pay the costs.

Pleas in law and main arguments

the Directive defines ‘lending’

Article 1(3) of
in terms of
making available for use, for a limited period of time and not
for direct or indirect economic or commercial advantage ‘when
it is made through establishments which are accessible to the
public’. Article 5(3) allows Member States to exempt ‘certain
categories of establishments’ from the payment of remunera-
tion.

Reference for a preliminary ruling from the Juzgado de lo
Social Único de Algeciras by order of that court of 30
March 2005 in Maria Cristina Guerrero Pecino v Fondo de
Garantía Salarial (FOGASA)

(Case C-177/05)

(2005/C 155/14)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Juzgado de lo Social Único
de Algeciras of 30 March 2005, received at the Court Registry
on 20 April 2005, for a preliminary ruling in the proceedings
between María Cristina Guerrero Pecino and the Fondo de
Garantía Salarial.

The Juzgado de lo Social Único de Algeciras asks the Court of
Justice to give a ruling on the following questions:

consequently, must

Having regard to the general principle of equality and non-
discrimination, is the inequality in treatment created by Article
33.2 of the Workers' Statute and by the interpretation made of
that provision by the Tribunal Supremo objectively justified
and,
compensation for dismissal be
excluded where it is payable to a worker pursuant to judicial
conciliation within
Council Directive
80/987/EEC (1) of 20 October 1980 on the approximation of
the laws of the Member States relating to the protection of
employees in the event of the insolvency of their employer, in
the version amended by Directive 2002/74/EC (2) of the Euro-
pean Parliament and of the Council of 23 September 2002,

ambit

the

of

C 155/8

EN

Official Journal of the European Union

25.6.2005

or, on the contrary, having regard to the general principle of
equality and non-discrimination, is the inequality in treatment
created by Article 33.2 of the Workers' Statute and by the
interpretation made of that provision by the Tribunal Supremo
not objectively justified and, consequently, must compensation
for dismissal be included where it
is payable to a worker
pursuant to judicial conciliation within the ambit of Council
Directive 80/987/EEC on the approximation of the laws of the
Member States relating to the protection of employees in the
event of
in the version
amended by Directive 2002/74/EC of the European Parliament
and of the Council of 23 September 2002?

the insolvency of

their employer,

(1) OJ L 238 of 28.10.1980, p. 23.
(2) OJ L 270 of 8.10.2002, p. 10.

Action brought on 19 April 2005 by the Commission of
the European Communities against the Hellenic Republic

(Case C-178/05)

(2005/C 155/15)

(Language of the case: Greek)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 19 April
2005 by the Commission of the European Communities, repre-
sented by Dimitrios Triantafillou, with an address for service in
Luxembourg.

The applicant claims that the Court should:

1. declare

its

that, as a result of

legislative provisions
concerning the imposition of duty on the transfer of regis-
tered offices and the transfer of effective centres of manage-
ment and concerning the exemption from that duty of all
cooperative agricultural organisations of whatever level, of
associations and consortia thereof of any kind, of co-owner-
ship of vessels, of shipping consortia, and of shipping
companies of every kind, the Hellenic Republic has failed to
fulfil its obligations under Directive 69/335/EEC; (1)

fied as a capital company in the State of origin, with the result
that duty is not imposed when the Member State of origin does
not consider a company to be a capital company. The Commis-
sion therefore objects to the fact that the Greek legislation
ascribes importance only to whether or not capital duty is
imposed in the State of origin, exempting from duty only the
transfer to Greece of a registered office or effective centre of
management from a Member State which imposes capital duty.
The Commission's view is based on a both literal and systemic
interpretation of the directive, which is related to the nature as
capital companies of the companies liable for duty and is rein-
forced by the
about by Directive
amendment brought
85/303/EEC which moves towards abolition of capital duty.

As regards the exemption of agricultural cooperatives and ship-
ping companies, categories covering entire branches of the
economy are involved; the Greek authorities have not explained
why those categories do not comprise capital companies and
their total exemption is not covered by the power under the
directive to exempt certain transactions. Furthermore, where
the directive intended to exempt whole branches it did so
expressly (for example, public undertakings and organisations).

(1) OJ, English Special Edition 1969 (II), p. 412.

Action brought on 21 April 2005 by the Commission of
the European Communities against the French Republic

(Case C-179/05)

(2005/C 155/16)

(Language of the case: French)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 21 April
2005 by the Commission of the European Communities, repre-
sented by M. Nolin, with an address for service in Luxembourg.

2. order the Hellenic Republic to pay the costs.

The Commission claims that the Court should:

Pleas in law and main arguments of the Commission

The Commission submits that the relevant criterion for imposi-
tion of duty on the transfer of the registered office or effective
centre of management is whether or not the company is classi-

1. declare that, by failing to provide the Commission with the
information required under Article 18(1) and the first and
third indents of Article 19i of Regulation No 2847/93 (1),
the French Republic has failed to fulfil its obligations under
that regulation;

2. order the French Republic to pay the costs.