Case C-339/05: Reference for a preliminary ruling from the Landesgericht Innsbruck by order of that court of 22 June 2005 in Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol
Date: 2005-11-12
Institutions: Court of Justice
Subjects: Austria, Switzerland, contract staff, free movement of persons, interpretation of the law, labour law, migrant worker, remuneration of work

12.11.2005

EN

Official Journal of the European Union

C 281/9

Action brought on 15 September 2005 by the Commission
of the European Communities against the Italian Republic

77/62/EEC, Directive 80/767/EEC and 88/295/EEC, and has
thereby failed to fulfil its obligations under the abovementioned
directives.

(Case C-337/05)

(2005/C 281/16)

(Language of the case: Italian)

Justice of

An action against the Italian Republic was brought before the
Court of
the European Communities on 15
September 2005 by the Commission of the European Commu-
nities, represented by D. Recchia and X. Lewis, acting as
Agents.

The Commission claims that the Court should:

— Declare that, since the Italian Government and, in particu-
lar, the Ministries of Home Affairs, Defence, Economics and
Finance, for Agricultural and Forestry Policy, and for Infra-
structure and Transport, and the Department of Civil
Protection of the Presidency of the Council of Ministers,
have adopted a procedure, which has been in existence for
a long time and is still followed, of directly awarding to the
firm ‘Agusta’ contracts for the purchase of helicopters
manufactured by ‘Agusta’ and ‘Agusta Bell’ to meet the
requirements of the military corps of the fire brigade, the
Carabinieri, the State Forestry Corps, the Coastguard, the
Revenue Guard Corps, the State Police and the Department
of Civil Protection, without any tendering procedure,
in
particular without complying with the procedures provided
for by Directive 93/36/EEC (1) and, earlier, by Directive
77/62/EEC, (2) Directive 80/767/EEC (3) and 88/295/EEC, (4)
the Italian Republic has failed to fulfil its obligations under
the abovementioned directives;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Government of the Italian Republic and, in particular, the
Ministries of Home Affairs, Defence, Economics and Finance,
for Agricultural and Forestry Policy, and for Infrastructure and
Transport, and the Department of Civil Protection of the Presi-
dency of the Council of Ministers, have adopted a procedure,
which has been in existence for a long time and is still
followed, of directly awarding to the firm ‘Agusta’ contracts for
the purchase of helicopters manufactured by ‘Agusta’ and
‘Agusta Bell’ to meet the requirements of the military corps of
the fire brigade, the Carabinieri, the State Forestry Corps, the
Coastguard, the Revenue Guard Corps, the State Police and the
Department of Civil Protection, without any tendering proce-
dure,
in particular without complying with the procedures
provided for by Directive 93/36/EEC and, earlier, by Directive

Following receipt of a complaint, the Commission acquired
information from which it appears that the Italian Government
has operated that procedure for a long time.

The Commission takes the view that that practice is incompa-
tible with the directives on public supply contracts referred to
above in so far as none of the conditions to which recourse to
the negotiated procedure without publication of a contract
notice is subject appears to have been satisfied.

The Commission considers, moreover, that Italy has not shown
that the practice in question is justified on the basis of Article
2 of Directive 93/36/EEC, according to which the directive is
not to apply to supply contracts which are declared secret or
the execution of which must be accompanied by special
security measures in accordance with the laws, regulations or
administrative provisions
in force in the Member States
concerned or when the protection of the basic interests of the
Member State's security so requires.

(1) OJ L 199 of 09.08.1993, p. 1.
(2) OJ L 13 of 15.01.1977, p. 1.
(3) OJ L 215 of 18.08.1980, p. 1.
(4) OJ L 127 of 20.05.1988, p. 1.

Reference for a preliminary ruling from the Landesgericht
Innsbruck by order of that court of 22 June 2005 in
Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land
Tirol

(Case C-339/05)

(2005/C 281/17)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Landesgericht Innsbruck
(Austria) of 22 June 2005, received at the Court Registry on 19
September 2005, for a preliminary ruling in the proceedings
between Zentralbetriebsrat der Landeskrankenhäuser Tirols and
Land Tirol on the following question:

C 281/10

EN

Official Journal of the European Union

12.11.2005

Must a Member State or one of a Member State's regional or
local authorities take account, when calculating the remunera-
tion of contractual public servants, of periods of employment
in certain institutions in Switzerland, which are comparable to
institutions listed in Paragraph 41(2) of the Tiroler Landesver-
tragsbedienstetengesetz (Law of
the Province of Tyrol on
Contractual Public Servants) (or, in the alternative, of Paragraph
26(2) of the Vertragsbedienstetengesetz 1948 (Federal Law on
Contractual Public Servants of 1948)) without temporal limitation,
or is the Agreement between the European Community and its
Member States, of the one part, and the Swiss Confederation,
of the other, on the free movement of persons (OJ 2002 L
114), in particular Article 9(1) of Annex I thereto, rather to be
interpreted as meaning that it is permissible to take account only
of periods of employment by contractual public servants in
Switzerland after the entry into force of that agreement on 1 June
2002?

Reference for a preliminary ruling from the Arbetsdom-
stolen by order of that court of 15 September 2005 in
Laval un Partneri Ltd v Svenska Byggnadsarbetareför-
bundet, Avdelning 1 of the Svenska Byggnadsarbetareför-
bundet, Svenska Elektrikerförbundet

(Case C-341/05)

(2005/C 281/18)

(Language of the case: Swedish)

no express provisions concerning the application of terms
and conditions of employment in collective agreements?

2. The Swedish Medbestämmandelagen (Law on workers' parti-
cipation in decisions) prohibits industrial action taken with
the intention of circumventing a collective agreement
concluded by other parties. That prohibition applies,
however, pursuant to a special provision contained in part
of the law known as the ‘lex Britannia’, only where a trade
union takes measures in respect of industrial relations to
which the Medbestämmandelagen is directly applicable,
which means in practice that the prohibition is not applic-
able to industrial action against a foreign undertaking which
is temporarily active in Sweden and which brings its own
workforce. Do the rules of the EC Treaty on the freedom to
provide services and the prohibition on discrimination on
grounds of nationality and the provisions of Directive 96/71
constitute an obstacle to an application of the latter rule —
which, together with other parts of the lex Britannia also
mean in practice that Swedish collective agreements become
applicable and take precedence over foreign collective agree-
ments already concluded — to industrial action in the form
of a blockade taken by Swedish trade unions against a
foreign temporary provider of services in Sweden?

Action brought on 19 September 2005 by the Commission
of the European Communities against the Republic of
Finland

(Case C-342/05)

(2005/C 281/19)

(Language of the case: Finnish)

received at

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Arbetsdomstolen of 15
September 2005,
the Court Registry on 19
September 2005, for a preliminary ruling in the proceedings
between Laval un Partneri Ltd and Svenska Byggnadsarbetare-
förbundet, Avdelning 1 of the Svenska Byggnadsarbetareför-
bundet, Svenska Elektrikerförbundet on the following ques-
tions:

the European Parliament and of

1. Is it compatible with rules of the EC Treaty on the freedom
to provide services and the prohibition of discrimination on
the grounds of nationality and with the provisions of Direc-
tive 96/71/EC of
the
Council of 16 December 1996 concerning the posting of
workers in the framework of the provision of services for
trade unions to attempt, by means of industrial action in the
form of a blockade, to force a foreign temporary provider of
services in the host country to sign a collective agreement
in respect of terms and conditions of employment such as
that set out in the above-mentioned decision of the Arbets-
domstolen, if the situation in the host country is such that
the legislation intended to implement Directive 96/71 has

Justice of

An action against the Republic of Finland was brought before
the European Communities on 19
the Court of
September 2005 by the Commission of the European Commu-
nities, represented by M. van Beek and I. Koskinen, acting as
Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by regularly permitting the hunting of wolves
contrary to the principles for derogations laid down in
Article 16(1) of Council Directive 92/43/EEC (1) of 21 May
1992 on the conservation of natural habitats and of wild
fauna and flora, the Republic of Finland has failed to fulfil
its obligations under Articles 12(1) and 16(1) of the direc-
tive;

2. order the Republic of Finland to pay the costs.