Case C-438/05: Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales), by Order of that court of  23 November 2005  in 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union v 1) Viking Line ABP 2) OU Viking Line Eesti
Date: 2006-03-11
Institutions: Court of Justice
Subjects: European social policy, collective agreement, freedom to provide services, interpretation of the law, labour relations, maritime transport, parent company, right of establishment, ship's flag, subsidiary, trade union rights, transport company

C 60/16

EN

Official Journal of the European Union

11.3.2006

3. The Court of First

Instance further erred in law in
concluding that even if the plea were admissible, the Court
of First Instance was confined to reviewing the legality of
the decision of the Board of Appeal of OHIM on the basis
of the factual and legal decision as it was before the Board
of Appeal. The Applicant contends that this is a misapplica-
tion of the legal position and that the Court of First Instance
has
refused to apply its own jurisprudence
concerning genuineness of use.

in effect

Reference for a preliminary ruling from the Court of
Appeal (Civil Division) (England and Wales), by Order of
that court of 23 November 2005 in 1) The International
Transport Workers' Federation 2) The Finnish Seamen's
Union v 1) Viking Line ABP 2) OU Viking Line Eesti

(Case C-438/05)

(2006/C 60/34)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark OJ L 11, 14.01.1994, p. 1-36.

(Language of the case: English)

Reference for a preliminary ruling from the Simvoulio tis
Epikratias by order of that court of 31 August 2005 in
Dionik Anonimi Etairia Emporias I/I, Logismikou & Paro-
khis Ipirision Mikhanografisis (Dionik A.E.) and Ioannis
Mikhail Pikoulas v Epitropi Kefalaiagoras

(Case C-430/05)

(2006/C 60/33)

(Language of the case: Greek)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Simvoulio tis Epikratias
(Council of State, Greece) of 31 August 2005, received at the
Court Registry on 2 December 2005, for a preliminary ruling
in the proceedings between Dionik Anonimi Etairia Emporias I/
I, Logismikou & Parokhis Ipirision Mikhanografisis (Dionik
A.E.) and Ioannis Mikhail Pikoulas and the Epitropi Kefalaia-
goras (Capital Market Commission) on the following question:

In the light of Article 21 of Directive 2001/34/EC of the Euro-
pean Parliament and of the Council on the admission of securi-
ties to official stock exchange listing and on information to be
published on those securities (OJ 2001 L 184, p. 1), can a
national legislature lay down, for cases where the information
recorded in listing particulars proves to be inaccurate or
misleading, administrative penalties imposable not only upon
the persons expressly mentioned in those particulars as respon-
sible but also upon the issuer of the securities being admitted
to listing on a stock exchange and, indiscriminately, upon the
members of its board of directors, regardless of whether the
board members have been identified as responsible in the
abovementioned sense?

Reference has been made to the Court of Justice of the Euro-
pean Communities by Order of the Court of Appeal (Civil Divi-
sion) (England and Wales) of 23 November 2005, received at
the Court Registry on 6 December 2005, for a preliminary
ruling in the proceedings between 1) The International Trans-
port Workers' Federation 2) The Finnish Seamen's Union and
1) Viking Line ABP 2) OU Viking Line Eesti, on the following
questions:

Scope of the free movement provisions

into a

that undertaking to enter

1) Where a trade union or association of trade unions takes
collective action against a private undertaking so as to
collective
require
bargaining agreement with a trade union in a particular
Member State which has the effect of making it pointless
for that undertaking to re-flag a vessel in another Member
State, does that action fall outside the scope of Article 43
of the EC Treaty and/or Regulation 4055/86 (1) by virtue
of the EC's social policy including, inter alia, Title XI of the
EC Treaty and, in particular, by analogy with the Court's
reasoning in Case C-67/96 Albany [1996] ECR I- 5751,
paras 52-64?

Horizontal direct effect

2) Do Article 43 of the EC Treaty and/or Regulation 4055/86
have horizontal direct effect so as to confer rights on a
private undertaking which may be relied on against
another private party and, in particular, a trade union or
association of trade unions in respect of collective action
by that union or association of unions?

Existence of restrictions on free movement

that undertaking to enter

3) Where a trade union or association of trade unions takes
collective action against a private undertaking so as to
require
collective
bargaining agreement with a trade union in a particular
Member State, which has the effect of making it pointless
for that undertaking to re-flag a vessel in another Member
State, does that action constitute a restriction for the
purposes of Article 43 of the EC Treaty and/or Regulation
4055/86?

into a

11.3.2006

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Official Journal of the European Union

C 60/17

4) Is a policy of an association of

trade unions which
provides that vessels should be flagged in the registry of
the country in which the beneficial ownership and control
of the vessel is situated so that the trade unions in the
country of beneficial ownership of a vessel have the right
to conclude collective bargaining agreements in respect of
that vessel, a directly discriminatory, indirectly discrimina-
tory or non-discriminatory restriction under Article 43 of
the EC Treaty or Regulation 4055/86?

5) In determining whether collective action by a trade union
or association of trade unions is a directly discriminatory,
indirectly discriminatory or non-discriminatory restriction
under Article 43 of the EC Treaty or Regulation 4055/86,
is the subjective intention of the union taking the action
relevant or must the national court determine the issue
solely by reference to the objective effects of that action?

ITF policy: objective justification

8) Does the application of a policy of an association of trade
unions which provides that vessels should be flagged in
the registry of the country in which the beneficial owner-
ship and control of the vessel is situated so that the trade
unions in the country of beneficial ownership of a vessel
to conclude collective bargaining agree-
have the right
ments in respect of
that vessel, strike a fair balance
between the fundamental social right to take collective
action and the freedom to establish and provide services,
and is it objectively justified, appropriate, proportionate
and in conformity with the principle of mutual recogni-
tion?

FSU's actions: objective justification

Establishment/ Services

9) Where:

6) Where a parent company is established in Member State A
and intends to undertake an act of establishment by reflag-
ging a vessel to Member State B to be operated by an
existing wholly owned subsidiary in Member State B
which is subject to the direction and control of the parent
company:

a) is threatened or actual collective action by a trade
union or association of trade unions which would seek
to render the above a pointless exercise capable of
constituting a restriction on the parent company's right
of establishment under Article 43, and

b) after reflagging of the vessel, is the subsidiary entitled
to rely on Regulation 4055/86 in respect of the provi-
sion of services by it from Member State B to Member
State A?

Justification

Direct discrimination

7) If collective action by a trade union or association of trade
unions is a directly discriminatory restriction under Article
43 of the EC Treaty or Regulation 4055/86, can it, in prin-
ciple, be justified on the basis of the public policy excep-
tion set out in Article 46 of the EC Treaty on the basis
that:

a) the taking of collective action (including strike action)
is a fundamental right protected by Community law;
and/or

b) the protection of workers?

a parent company in Member State A owns a vessel
flagged in Member State A and provides ferry services
between Member State A and Member State B using that
vessel;

the parent company wishes to re-flag the vessel to Member
State B to apply terms and conditions of employment
which are lower than in Member State A;

the parent company in Member State A wholly owns a
subsidiary in Member State B and that subsidiary is subject
to its direction and control;

it is intended that the subsidiary will operate the vessel
once it has been re-flagged in Member State B with a crew
recruited in Member State B covered by a collective
bargaining agreement negotiated with an ITF affiliated
trade union in Member State B;

the vessel will remain beneficially owned by the parent
company and be bareboat chartered to the subsidiary;

the vessel will continue to provide ferry services between
Member State A and Member State B on a daily basis;

a trade union established in Member State A takes collec-
tive action so as to require the parent and/or subsidiary to
enter into a collective bargaining agreement with it which
will apply terms and conditions acceptable to the union in
Member State A to the crew of the vessel even after reflag-
ging and which has the effect of making it pointless for
the parent to re-flag the vessel to Member State B,

does that collective action strike a fair balance between the
fundamental social right to take collective action and the
freedom to establish and provide services and is it objec-
tively justified, appropriate, proportionate and in confor-
mity with the principle of mutual recognition?

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Official Journal of the European Union

11.3.2006

10) Would it make any difference to the answer to 9) if the
parent company provided an undertaking to a court on
behalf of itself and all the companies within the same
group that they will not by reason of the reflagging termi-
nate the employment of any person employed by them
(which undertaking did not require the renewal of short
term employment contracts or prevent the redeployment
of any employee on equivalent terms and conditions)?

(1) Council Regulation (EEC) No 4055/86 of 22 December 1986
applying the principle of freedom to provide services to maritime
transport between Member States and between Member States and
third countries.

Reference for a preliminary ruling from the Diikitiko
Protodikio Athinas by decision of
that court of 30
December 2004 in Aikaterini Stamatelaki v Organismos
Asfaliseos Eleftheron Epangelmation (O.A.E.E.)

(Case C-444/05)

(2006/C 60/36)

(Language of the case: Greek)

Reference for a preliminary ruling from the Bundesfi-
nanzhof by order of that court of 3 November 2005 in
Finanzamt Oschatz v Zweckverband zur Trinkwasserver-
sorgung und Abwasserbeseitigung Torgau-Westelbien

(Case C-442/05)

(2006/C 60/35)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court) of 3 November 2005, received at the Court
Registry on 14 December 2005, for a preliminary ruling in the
proceedings between Finanzamt Oschatz and Zweckverband
zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-
Westelbien on the following question:

Does connection of the water distribution network to a prop-
erty owner's installation (the so-called ‘household connection’)
by a water supply undertaking for a separately calculated fee
come under the heading of ‘the supply of water’ within the
meaning of Sixth Council Directive 77/388/EEC of 17 May
1977 (1) on the harmonisation of the laws of the Member
States relating to turnover taxes (Annex D (2) and Annex H
Category 2)?

(1) OJ L 145, p. 1.

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of
the Diikitiko Protodikio
Athinas of 30 December 2004, received at the Court Registry
on 14 December 2005, for a preliminary ruling in the proceed-
ings between Aikaterini Stamatelaki and Organismos Asfaliseos
Eleftheron Epangelmation (Insurance Institution for the Liberal
Professions; O.A.E.E.), a legal person governed by public law,
on the following questions:

treatment of a person insured with it

(A) Does a national rule which excludes in all circumstances
reimbursement by a domestic insurance body of the cost
of
in a private
hospital abroad except in cases concerning children up to
the age of 14, while on the other hand providing for the
possibility of reimbursement of the relevant cost if the
treatment
in question takes place in a public hospital
abroad, following authorisation which is granted provided
that the insured person cannot obtain appropriate treat-
ment without undue delay from a hospital that has entered
into an agreement with his insurance body, constitute a
restriction on the principle of freedom to provide services
within the Community which is enshrined in Article 49 et
seq. of the EC Treaty?

(B) If the answer to the first question is in the affirmative, can
restriction be regarded as dictated by overriding
that
interest, such as in particular the
reasons in the general
need to avoid the risk of seriously undermining the finan-
cial balance of the Greek social security system, or the
maintenance of a balanced hospital and medical service
open to all?

(C) If the answer to the second question is in the affirmative,
can a restriction of this nature be regarded as permissible
in the sense that it is not contrary to the principle of
proportionality, that is to say that it does not go beyond
what is objectively necessary in order to attain the objec-
tive at which it is aimed and that the same result cannot be
achieved by less restrictive rules?