Case C-270/06: Action brought on 20 June 2006 — Commission of the European Communities v Republic of Austria
Date: 2006-09-02
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, banking system, credit institution, free movement of capital, money-market liquidity

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.

C 212/18

EN

Official Journal of the European Union

2.9.2006

Since the present statutory obligation on the relevant credit
institutions is equally unnecessary for the protection of the
integrity and the good reputation of the Austrian financial
sector and for the achievement of effective supervision of finan-
cial institutions, it constitutes a disproportionate restriction on
the free movement of capital.

Reference for a preliminary ruling from the Handelsger-
icht Wien (Austria) lodged on 22 June 2006 — Auto Peter
Petschenig GmbH v Toyota Frey Austria GmbH

(Case C-273/06)

(2006/C 212/31)

Language of the case: German

Reference for a preliminary ruling from the Cour d'appel
d'Angers (France) lodged on 26 June 2006 — EARL Main-
elvo v Denkavit France SARL

Referring court

Handelsgericht Wien

(Case C-272/06)

(2006/C 212/30)

Language of the case: French

Referring court

Cour d'appel d'Angers

Parties to the main proceedings

Appellant: EARL Mainelvo

Respondent: Denkavit France SARL

Question referred

by Council Regulation

Is the immediate assignment by the farmer, under an integra-
tion contract concluded with a French company, which is a
subsidiary of an international group producing and supplying
feedstuffs for calves, of 67.63 to 71.35 % of the slaughter
premium established
(EC) No
1254/1999 of 17 May 1999 (1) [on the common organisation
of the market in beef and veal (OJ 1999 L 160, p. 21)], within
the limits fixed by an internal inter-trade agreement between
the national trade organisations representing integration under-
takings and veal farmers, compatible with the objectives of
market regulation and of ensuring a fair standard of living for
the agricultural community stated in that regulation and with
the internal market measures, established for those purposes
and set out in Commission Regulation (EC) No 2342/1999 of
28 October 1999 (2) [laying down detailed rules for the applica-
tion of Council Regulation (EC) No 1254/1999 on the
common organisation of the market in beef and veal as regards
premium schemes (OJ 1999 L 281, p. 30)]?

(1) Council Regulation (EC) No 1254/1999 of 17 May 1999 on the
common organisation of the market in beef and veal (OJ 1999 L
160, p. 21).

(2) Commission Regulation (EC) No 2342/1999 of 28 October 1999
laying down detailed rules for the application of Council Regulation
(EC) No 1254/1999 on the common organisation of the market in
beef and veal as regards premium schemes (OJ 1999 L 281, p. 30).

Parties to the main proceedings

Applicant: Auto Peter Petschenig Gmbh

Defendant: Toyota Frey Austria GmbH

Questions referred

1. Is the first indent of Article 5(1)(1)(a) of Commission Regu-
lation (EC) No 1475/95 of 28 June 1995 on the application
of Article 85(3) of the Treaty to certain categories of motor
vehicle distribution and servicing agreements (‘Regulation
(EC) No 1475/95’) (1) to be interpreted as meaning that the
mere entry into force of Commission Regulation (EC) No
1400/2002 of 31 July 2002 on the application of Article
81(3) of the Treaty to categories of vertical agreements and
concerted practices in the motor vehicle sector (‘Regulation
(EC) No 1400/2002’) (2) and the consequent mere adjust-
ment of a distribution system, which was in line with Regu-
lation (EC) No 1475/95 and was exempt under that regu-
lation, to meet the requirements for exemption of a selective
distribution system in accordance with Regulation (EC) No
1400/2002 is to be regarded as necessitating reorganisation
within the meaning of the first indent in the first paragraph
of Article 5(3) of Regulation (EC) No 1475/95?

2. If the answer to the first question is in the negative: Is the first
indent in the first paragraph of Article 5(3) of Commission
Regulation (EC) No 1475/95 of 28 June 1995 on the appli-
cation of Article 85(3) of the Treaty to certain categories of
motor vehicle distribution and servicing agreements (‘Regu-
lation (EC) No 1475/95’) to be interpreted as meaning that
the mere loss — in relation to selective distribution systems
— of
the territorial protection previously afforded to
authorised dealers, even if combined with the authorisation
of repairers who are not authorised dealers in those makes,
which was not previously allowed under Regulation (EC)
1475/95, represents reorganisation within the meaning of
the first indent in the first paragraph of Article 5(3) of Regu-
lation (EC) No 1475/95, or is it necessary to show that reor-
ganising measures have actually been taken?

(1) OJ L 145, p. 25.
(2) OJ L 203, p. 30.