Case C-307/05: Reference for a preliminary ruling from the Juzgado de lo Social No 1 of San Sebastián (Spain) by order of that court of 6 July 2005 in Yolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) (Basque Health Service)
Date: 2005-10-15
Institutions: Court of Justice
Subjects: bonus payment, equal pay, interpretation of the law, temporary employment

15.10.2005

EN

Official Journal of the European Union

C 257/3

2. Is such a legal regime compatible with the provisions of
Council Directives 93/36/EEC (1) and 93/37/EEC of 14 June
1993, (2) European Parliament
and Council Directive
97/52/EC of 13 October 1997 (3) and Commission Directive
2001/78[/EC] (4) amending the three previous directives —
legislation recently recast
in European Parliament and
Council Directive 2004/18/EC of 31 March 2004? (5)

3. Are the statements contained in the judgment of the Court
of Justice of the European [Communities] (6) of 8 May 2003
in Case C-349/97 Spain v Commission applicable in any
event to TRAGSA and its subsidiaries, in the light of the rest
of the case-law of the European Court regarding public
procurement and in view of the fact that the Administration
entrusts to TRAGSA a large number of works which are not
subject to the rules governing free competition, and that
this situation might cause considerable distortion of the rele-
vant market?

(1) Council Directive 93/36/EEC of 14 June 1993 coordinating proce-
dures for the award of public supply contracts (OJ L 199, p. 1).
(2) Council Directive 93/37/EEC of 14 June 1993 concerning the coor-
dination of procedures for the award of public works contracts (OJ
L 199, p. 54).

(3) European Parliament and Council Directive 97/52/EC of 13 October
1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC
concerning the coordination of procedures for the award of public
service
supply contracts and public works
contracts respectively (OJ L 328, p. 1).

contracts, public

(4) Commission Directive 2001/78/EC of 13 September 2001
amending Annex IV to Council Directive 93/36/EEC, Annexes IV, V
and VI to Council Directive 93/37/EEC, Annexes III and IV to
Council Directive 92/50/EEC, as amended by Directive 97/52/EC,
and Annexes XII
to Council Directive
93/38/EEC, as amended by Directive 98/4/EC (Directive on the use
of standard forms in the publication of public contract notices) (OJ
L 285, p. 1).

to XV, XVII and XVIII

(5) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ L 134, p. 114).

the European Parliament and of

Barcelona (Provincial High Court, Barcelona) (Spain) of 7 June
2005, received at the Court Registry on 3 August 2005, for a
preliminary ruling in the proceedings between Sociedad
General de Autores y Editores de España (SGAE) and Rafael
Hoteles SL on the following questions:

1. Does the installation in hotel rooms of television sets to
is sent by
which a satellite or terrestrial television signal
cable constitute an act of communication to the public
which is covered by the harmonisation of national
laws
protecting copyright provided for in Article 3 of Directive
2001/29/EC (1) of
the
Council of 22 May 2001?

the European Parliament and of

2. Is the fact of deeming a hotel room to be a strictly domestic
location, so that communication by means of television sets
to which is fed a signal previously received by the hotel is
not regarded as communication to the public, contrary to
the
by Directive
2001/29/EC of the European Parliament and of the Council
of 22 May 2001?

protection

copyright

pursued

of

3. For the purposes of protecting copyright in relation to acts
of communication to the public provided for in Directive
2001/29/EEC of
the
Council of 22 May 2001, can a communication that is
effected through a television set inside a hotel bedroom be
regarded as public because successive viewers have access to
the work?

the European Parliament and of

(1) Directive 2001/29/EC of

the
Council of 22 May 2001 on the harmonisation of certain aspects of
copyright and related rights in the information society (OJ L 167, of
22.6.2001 p. 10).

the European Parliament and of

(6) [2003] ECR I–3851.

Reference for a preliminary ruling from the Audiencia
Provincial de Barcelona (Spain) by order of that court of 7
June 2005 in Sociedad General de Autores y Editores de
España (SGAE) v Rafael Hoteles SL

(Case C-306/05)

(2005/C 257/05)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Audiencia Provincial de

Reference for a preliminary ruling from the Juzgado de lo
Social No 1 of San Sebastián (Spain) by order of that court
of 6 July 2005 in Yolanda Del Cerro Alonso v Osakidetza
(Servicio Vasco de Salud) (Basque Health Service)

(Case C-307/05)

(2005/C 257/06)

(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 No 1
of San Sebastián (Spain) of 6 July 2005, received at the Court
Registry on 4 August 2005, for a preliminary ruling in the
proceedings between Yolanda Del Cerro Alonso and Osakidetza
(Servicio Vasco de Salud)
(Basque Health Service) on the
following questions:

C 257/4

EN

Official Journal of the European Union

15.10.2005

1. Where Directive 1999/70/EC (1) provides that

fixed-term
workers are not be treated in a less favourable manner than
comparable permanent workers, does this also refer to
remuneration?

If the answer is affirmative:

2. Is the fact that Article 44 of Law 55/2003 of 16 December
2003 of the Framework Statute for Statutory Workers in
the Health Service provides that temporary workers are not
entitled to the length of service allowance recognised for
permanent workers an adequate and objective reason?

3. Are the agreements concluded between the staff unions and
the administration adequate and objective reasons for not
recognising the length of service allowance for temporary
workers?

(1) Council Directive 1999/70/EC of 28 June 1999 concerning the
framework agreement on fixed-term work concluded by ETUC,
UNICE and CEEP (OJ L 175 , of 10/07/1999 p. 43).

which finds that the defendant has infringed a Community
trade mark may, even if
there is no such ground for
refraining from issuing a prohibition of further infringement
as contemplated in Question 1, refrain from issuing such a
prohibition on the grounds that it is clear that a further
infringement is covered by a statutory general prohibition
of infringement under national law and that a penalty may
be imposed on the defendant if he commits a further infrin-
gement intentionally or with gross negligence?

3. If the answer to Question 2 is no, must specific measures,
by which a prohibition is for example coupled with a
penalty, be taken in such a case to ensure that the prohibi-
tion is complied with, even where it is clear that a further
infringement is covered by a statutory general prohibition
of infringement under national law and that a penalty may
be imposed on the defendant if he commits a further infrin-
gement intentionally or with gross negligence?

4. If the answer to Question 3 is yes, does this apply even
where the conditions for adopting such a specific measure
in the case of a corresponding infringement of a national
trade mark would not be regarded as fulfilled?

Reference for a preliminary ruling from the Högsta
Domstolen by order of that court of 9 August 2005 in
Nokia Corporation v Joacim Wärdell

Action brought on 17 August 2005 by the Commission of
the European Communities against the Federal Republic of
Germany

(Case C-316/05)

(2005/C 257/07)

(Language of the case: Swedish)

(Case C-318/05)

(2005/C 257/08)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Högsta Domstolen
(Supreme Court) of 9 August 2005, received at the Court
Registry on 16 August 2005, for a preliminary ruling in the
proceedings between Nokia Corporation and Joacim Wärdell
on the following questions:

1. Is the condition relating to special reasons in the first
sentence of Article 98(1) of Council Regulation (EC) No
40/94 of 20 December 1993 on the Community trade mark
to be interpreted as meaning that a court which finds that
the defendant has infringed a Community trade mark may,
irrespective of the other circumstances, refrain from issuing
a specific prohibition of further infringement if the court
considers that
is not
obvious or is otherwise merely limited?

infringement

the risk of

further

2. Is the condition relating to special reasons in the first
sentence of Article 98(1) of the Regulation on the Com-
munity trade mark to be interpreted as meaning that a court

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 17 August 2005 by the Commission of the European
Communities, represented by Richard Lyal and Kilian Gross,
acting as Agents, with an address for service in Luxembourg.

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

1. declare that, by excluding school fees in respect of education
abroad without exception from the tax-deductible special
expenses provided for in Article 10(1)(9) of the Einkommen-
steuergesetzes (EStG)
the
Federal Republic of Germany has failed to fulfil its obliga-
tions under Articles 18, 39, 43 and 49 EC;

(German Law on income tax),

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