Case C-268/06: Reference for a preliminary ruling from Labour Court (Ireland) made on 19 June 2006 — Impact v Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport
Date: 2006-09-02
Institutions: Court of Justice
Subjects: equal treatment, interpretation of the law, labour law, national implementing measure, temporary employment, work contract

C 212/16

EN

Official Journal of the European Union

2.9.2006

Form of order sought

— Declare that by prohibiting pursuant

to Article 2(1) of
Decree-Law no 40/2003 of 11 March 2003 the affixing of
coloured film on windows of motor vehicles the Portuguese
Republic has failed to fulfil its obligations under Articles 28
and 30 EC and Articles 11 and 13 of the EEA Agreement,
as that prohibition hinders the marketing in Portugal of
coloured film lawfully manufactured and/or marketed in
another Member State or in a State signatory to the EEA
Agreement;

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The prohibition laid down in Article 2(1) of Decree-Law no
40/2003 of 11 March 2003 constitutes a measure having
equivalent effect
to a quantitative restriction on imports,
contrary to Article 28 EC and Article 11 of the EEA Agree-
ment, as it hinders in practice the marketing in Portugal of
coloured film lawfully manufactured and /or marketed in
another Member State or in a State signatory to the EEA Agree-
ment. It is also not justified under Article 30 EC and Article 13
of the EEA Agreement.

Reference for a preliminary ruling from Labour Court
(Ireland) made on 19 June 2006 — Impact v Minister for
for Arts, Sport and
Agriculture and Food, Minister
Tourism, Minister
and
Natural Resources, Minister for Foreign Affairs, Minister
for Justice, Equality and Law Reform, Minister for Trans-
port

for Communications, Marine

(Case C-268/06)

(2006/C 212/28)

Questions referred

Question 1

first

In deciding a case at
instance under a provision of
domestic law or in determining an appeal against such a deci-
sion, are the Rights Commissioners and the Labour Court
required by any principle of Community law (in particular the
principle of equivalence and effectiveness) to apply a directly
effective provision of Council Directive 1999/70/EC of 28th
June 1999 concerning the framework agreement of fixed-term
work concluded by ETUC, UNICE and CEEP (1) in circumstances
where:

— The Rights Commissioner and the Labour Court have not
been given express jurisdiction to do so under the domestic
the Member State including the provisions of
law of
domestic law transposing the Directive,

— Individuals can pursue alternative claims arising out of a
failure by their employer to apply the Directive to their
individual circumstances before the High Court and

— Individuals can pursue alternative claims before an ordinary
Court of competent jurisdiction against the Member State
seeking damages for loss suffered by them arising from the
Member States failure to transpose the Directive on time?

Question 2.

If the answer to Question 1 is in the Affirmative,

(a) Is Clause 4(1) of the Framework Agreement on Fixed-Term
Work concluded by ETUC, UNIC and CEEP annexed to
Directive 1999/70/EC unconditional and sufficiently precise
in its terms as to be capable of being relied upon by indivi-
duals before their national courts?.

(b) Is Clauses 5(1) of the Framework Agreement on Fixed-Term
Work concluded by ETUC, UNIC and CEEP annexed to
Directive 1999/70/EC unconditional and sufficiently precise
in its terms as to be capable of being relied upon by indivi-
duals before their national courts?

Language of the case: English

Question 3

Referring court

Labour Court (Ireland)

Parties to the main proceedings

Applicant: Impact

Having regard to the Court's answers to Question 1 and Ques-
tion 2(b) does clause 5(1) of the Framework Agreement on
Fixed-Term Work concluded by ETUC, UNIC and CEEP
annexed to Directive 1999/70/EC preclude a Member State,
acting in its capacity as an employer, from renewing a fixed
term contract of employment for up to 8 years in the period
after the said Directive should have been transposed and before
the transposing legislation was enacted in domestic law where:

— on all previous occasions the contract had been renewed
for shorter periods, and the employer requires the services
of the employee for the extended period,

Defendant: Minister for Agriculture and Food, Minister for Arts,
Sport and Tourism, Minister for Communications, Marine and
Natural Resources, Minister for Foreign Affairs, Minister for
Justice, Equality and Law Reform, Minister for Transport

— the renewal

for the extended period has the effect of
circumventing the application to an individual of the full
benefit of Clause 5 of the Framework Agreement when
transposed into domestic law, and

2.9.2006

EN

Official Journal of the European Union

C 212/17

— there are no objective reasons unrelated to the employee's

status as a fixed-term worker for such a renewal.

Question 4

If the answer to Question 1 or Question 2 is in the negative,
is the Rights Commissioner and the Labour Court required by
any provision of Community law (and in particular the obliga-
tion to interpret domestic law in light of the wording and
purpose of a Directive so as to produce the result pursued by
the Directive) to interpret provisions of domestic law enacted
for the purpose of transposing Council Directive 1999/70/EC
of 28th June 1999 concerning the framework agreement of
fixed-term work concluded by ETUC, UNICE and CEEP as
having retrospective effect to the date on which the said Direc-
tive should have been transposed where:

— The wording of the provision of domestic law does not

expressly preclude such an interpretation, but,

— A rule of domestic law governing the construction of
such retrospective application unless
indication to the

statutes precludes
there is a clear and unambiguous
contrary?

Question 5

If the answer to Question 1 or Question 4 is in the affirma-
tive, do the ‘employment conditions’ to which clause 4 of the
Framework Agreement annexed to Directive 1990/70/EC refers
include conditions of an employment contract relating to remu-
neration and pensions?

(1) OJ L 175, p. 43

Action brought on 20 June 2006 — Commission of the
European Communities v Republic of Austria

(Case C-270/06)

(2006/C 212/29)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk, Agent, B.Wägenbaur, lawyer)

Defendant: Republic of Austria

Form of order sought

1. Declare, under Article 226(1) of the Treaty establishing the
that by requiring certain credit
institution to

European Communities,
institutions which are affiliated to a central

hold with their central institution (in accordance with condi-
tions laid down by the central institution) liquidity reserves
corresponding to a certain percentage of their deposit funds
and preventing them from investing their liquid assets with
other European financial
the Republic of
Austria has failed to fulfil its obligations under Article 56(1)
EC.

institutions,

2. Order the defendant to pay the costs.

Pleas in law and main arguments

Article 56(1) EC prohibits all national rules which restrict the
movement of capital between Member States and between
Member States and third countries. This prohibition goes
beyond removing inequalities of treatment of participants in
the financial markets on the basis of their nationality and
includes generally every restriction which makes the exercise of
that fundamental freedom less attractive. According to the case-
law of the Court of Justice, measures taken by a Member State
which are liable to dissuade its residents from raising loans or
making investments in other Member States constitute restric-
tions on the movement of capital.

the provision of

The Commission is of
the
the view that
Austrian federal banking law requiring certain credit institu-
tions which are affiliated to a central institution to keep a part
of their liquidity reserves with their central institution consti-
tutes a restriction on the free movement of capital. That legal
obligation prevents prevents primary banks from investing
with other European credit institutions a significant part of
their liquid assets, corresponding to the obligatory deposit, and
from achieving, by way of a cross-border transfer to another
Member State, higher rates of return than those provided by
the central institution.

The provision at issue of the Austrian federal banking law
cannot be justified on the basis of
the grounds explicitly
mentioned in Article 58 EC, or on grounds of consumer
protection or by other overriding reasons relating to the public
interest.

According to the Commission the obligatory deposit at issue
laid down in the law is not necessary for the purpose of
consumer protection. First statutory rules to safeguard liquidity,
which apply to all banks, already exist in Austria, and secondly,
there are less restrictive means for ensuring sufficient liquidity,
which do not impede or impede less the free movement of
capital. The existing rule is even counter-productive in terms of
consumer protection, since it prevents primary banks from
investing their liquidity reserve abroad and possibly more prof-
itably, in the interest of their customers. Furthermore there is
no evidence at all to indicate that the insolvency of individual
primary banks would necessarily trigger a chain reaction and
bring about a run on the savings deposits of other primary
banks in the sector. This catastrophic scenario is not convin-
cing, as comparable systems in other Member States manage
without compulsory statutory deposits, and have operated
stably for many decades without this having led to a series of
collapses of banks.