Case C-457/05: Reference for a preliminary ruling from the Landgericht Wiesbaden by order of that court of  23 November 2005  in Schutzverband der Spirituosen-Industrie e.V. v Diageo Deutschland GmbH
Date: 2006-03-11
Institutions: Court of Justice
Subjects: Ireland, United Kingdom, free movement of goods, interpretation of the law, marketing standard, preparation for market

11.3.2006

EN

Official Journal of the European Union

C 60/21

Pleas in law and main arguments

The appellant contends that in adopting its contested judgment
of 5 October 2005, the Court of First Instance made a proce-
dural error which both prejudiced the interests of the Republic
of Austria and violated Community law.

According to the appellant, the content of the contested judg-
ment is concerned only with the constituent element of the
‘specific problem’; the other elements required under Article
95(5) EC were not examined further after the Court formed the
view that
there was no problem specific to the applicant
Member State. The Court did not, however, examine the ques-
tion of the ‘specific problem’ with the level of rigour that
would have been appropriate to its
the
outcome of the proceedings. This failure to make a proper
assessment of the arguments on this point amounts, first, to a
breach of the principle of the right to a fair hearing, and
secondly, to a breach of the duty to provide reasons, which in
each case constitutes a procedural irregularity.

importance for

Instance analysed the content of

The scientific risk assessment is above all of particular impor-
tance in the field of environmental protection, not least in the
application of the precautionary principle, and requires, in the
context of a procedure under Article 95(5) EC, a thorough
examination of the scientific argumentation, particularly when
there is even the slightest doubt as to whether the level of
protection envisaged by a harmonisation measure is sufficient.
However, neither the Commission nor, subsequently, the Court
the arguments
of First
advanced by the Republic of Austria or performed a thorough
examination of the necessity of the notified measure for envir-
onmental protection. The decision of the Commission and the
judgment of the Court are based on a study by the EFSA (Euro-
pean Food Safety Authority), which dealt only marginally —
and in no way in specific relation to the Land Oberösterreich
— with the key element of the Austrian submission, the ques-
tion of the co-existence of genetically modified and non-modi-
fied cultures. At no point was there any examination, in the
light of the precautionary principle, of the scientific evidence
put forward.

Finally the applicant submits that the earlier case-law of the
Court of Justice is not inconsistent with the need to conduct
proceedings in which all parties are heard in a procedure under
Article 95 EC and to this extent the legal view of the Court of
First Instance constitutes a breach of Community law. Since
failure to conduct such proceedings violates the right to a fair
hearing,
the Commission should
therefore already have been annulled on this ground.

the contested decision of

(1) OJ 2005 C 296 of 26 November 2005.
(2) OJ 2003 L 230, p. 34.

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 1 December 2005 in
Velvet & Steel Immobilien und Handels GmbH v Finan-
zamt Hamburg-Eimsbüttel

(Case C-455/05)

(2006/C 60/41)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg of 1
December 2005, received at the Court Registry on 23 December
2005, for a preliminary ruling in the proceedings between
Velvet & Steel Immobilien und Handels GmbH and Finanzamt
Hamburg-Eimsbüttel on the following question:

Is Article 13B(d)(2) of Sixth Council Directive 77/388/EEC (1) of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes to be interpreted, with respect
to the
von Verbindlichkeiten’
‘Übernahme
(assumption of obligations), as meaning that only pecuniary
obligations are to be subsumed under that concept or does that
provision also include the assumption of other obligations, for
example, service obligations?

concept of

(1) OJ 1977 L 145, p. 1.

Reference for a preliminary ruling from the Landgericht
Wiesbaden by order of that court of 23 November 2005
in Schutzverband der Spirituosen-Industrie e.V. v Diageo
Deutschland GmbH

(Case C-457/05)

(2006/C 60/42)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Landgericht Wiesbaden
(Wiesbaden Regional Court) (Germany) of 23 November 2005,
received at the Court Registry on 27 December 2005, for a
preliminary ruling in the proceedings between Schutzverband
der Spirituosen-Industrie e.V. and Diageo Deutschland GmbH
on the following questions:

C 60/22

EN

Official Journal of the European Union

11.3.2006

1. Is the second sentence of

the second subparagraph of
Article 5(3)(b),
in conjunction with Article 5(3)(d) and
Annex III, section 4, of Council Directive 75/106/EEC of 19
December 1974 on the approximation of the laws of the
Member States relating to the making-up by volume of
certain prepackaged liquids (OJ 1975 L 42, p. 1), as most
recently amended by the Act of Accession of 23 September
2003 (OJ 2003 L 236, p. 33), (‘Directive 75/106/EEC’) to be
construed as meaning that products in packaging with a
volume of 0.071 litre, which are lawfully manufactured and/
or marketed in Ireland or the United Kingdom, may also be
marketed in all of the other EC Member States?

event of transfers of undertakings, businesses or parts of under-
takings or businesses (1), where, in the course of collaboration
between two temporary employment undertakings, without
the first
there being a defined organisational structure of
temporary employment undertaking, a branch manager and a
customer adviser and a manager
from the first
temporary employment undertaking to the second temporary
employment undertaking and carry out comparable work there
and, also in collaboration between both undertakings, approxi-
mately a third of the hired-out employees and the respective
clients (with requirements varying from three to 50 hired-out
employees) transfer with them, in part or entirely?

transfer

2. If Question 1 should be answered in the negative:

is the
second sentence of
the second subparagraph of Article
5(3)(b), in conjunction with Article 5(3)(d) and Annex III,
section 4, of Directive 75/106/EEC compatible with the
principle of free movement of goods in Articles 28 EC and
30 EC?

(1) OJ L 82, p. 16.

Action brought on 23 December 2005 by the Republic of
Poland against the European Parliament and the Council of
the European Union

Reference for a preliminary ruling from the Oberster
Gerichtshof by order of that court of 16 November 2005
in Mohamed Jouini, Okay Gönen, Hasan Bajric, Gerald
Huber, Manfred Ortner, Sükran Karacatepe, Franz Mühl-
berger, Nakil Bakii, Hannes Kranzler, Jürgen Mörth, Anton
Schneeberger, Dietmar Susteric, Sascha Wörnhör, Aynur
Savci, Elena Peter, Egon Schmäger, Mehmet Yaman, Dejan
Preradovic, Andreas Mitter, Wolfgang Sorger, Franz Scha-
chenhofer, Herbert Weiss, Harald Kaineder, Ognen, Staj-
kovski and Jovica Vidovic v PPS Princess Personal Service
GmbH

(Case C-460/05)

(2006/C 60/44)

(Language of the case: Polish)

(Case C-458/05)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice of
the European Communities on 23 December 2005 by the
Republic of Poland, represented by Jarosław Pietras.

(2006/C 60/43)

The applicant claims that the Court should:

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Oberster Gerichtshof of 16
November 2005,
on
at
29 December 2005, for a preliminary ruling in the proceedings
between Mohamed Jouini and Others and PPS Princess Personal
Service GmbH on the following question:

the Court Registry

received

1. Declare invalid Articles 33(2) and 43(3) of Directive
2005/36/EC of the European Parliament and of the Council
of 7 September 2005 on the recognition of professional
qualifications; (1)

2. Conduct the case in Polish;

3. Order the Council of the European Union and the European

Parliament to pay the costs of the action.

Pleas in law and main arguments

Is there a transfer of a business or part of a business, within the
meaning of Article 1 of Council Directive 2001/23/EC of 12
March 2001 on the approximation of the laws of the Member
States relating to the safeguarding of employees' rights in the

The Government of the Republic of Poland contends that an
essential procedural requirement was breached by virtue of the
inadequacy of the reasons given for the wording, as adopted, of
Articles 33(2) and 43(3) of Directive 2005/36/EC.