Case C-427/06: Reference for a preliminary ruling from the Bundesarbetitsgericht (Germany) lodged on 18 October 2006 — Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH
Date: 2006-12-30
Institutions: Court of Justice
Subjects: age discrimination, employment policy, interpretation of the law, pension scheme, personnel administration, survivor's benefit, transfer of pension rights

30.12.2006

EN

Official Journal of the European Union

C 326/29

Parties to the main proceedings

Applicant: Ministero dell'Economia e delle Finanze

Defendant: Part Service Srl, in liquidation

Questions referred

1. Does the concept of abuse of rights, defined in the judgment
of the Court of Justice in Case C-255/02 as transactions, the
essential aim of which is to obtain a tax advantage, correspond
for no commercial
to the definition transactions carried out
reasons other than a tax advantage, or is it broader or more
restrictive than that definition?

2. For the purposes of VAT, may there be considered to be an
abuse of rights (or of legal forms), with the consequent loss
of Community own revenue accruing from value added tax,
where contracts for leasing arrangements (locazione finan-
ziaria), financing, insurance and intermediation contracts are
concluded separately with the effect that only the considera-
tion paid in respect of the grant of the right to use the goods
is subject to VAT, whereas a single contract of
leasing in
accordance with the practice and interpretation of national
case-law would include the financing and would therefore
make the whole of the consideration subject to VAT?

to (6), Article 13(4), Article 14 and Annexes II to VIII of
Directive 2000/60/EC (1) of the European Parliament and of
the Council of 23 October 2000 establishing a framework
for Community action in the field of water policy,
the
Hellenic Republic has failed to fulfil
its obligations under
those provisions and Article 24(1) of that Directive

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

(FEK/A/280/9.12.2003)

The Greek authorities transposed Directive 2000/60/EC into
Greek law by Law 3199/2003, which was published in the Offi-
cial Gazette
and notified to the
Commission as the national measure of transposition. Examina-
tion of
that legislative act with Directive
2000/60/EC has shown that it is a law which requires specifica-
tion by way of
implementing measures by
which all the provisions of the directive will be transposed.

the conformity of

the adoption of

In the Commission's view, exact transposition of the directive
into Greek law has particular significance in the present case
because Directive 2000/60/EC, on account of
its extended
subject-matter and scope of application constitutes a legislative
text of fundamental importance as regards the protection and
viable management of water.

The Greek authorities recognise, moreover, that the directive has
not been transposed fully and that the adoption of additional
measures is necessary; the procedure for the adoption of such
measures has begun but has not yet been completed.

Action brought on 17 October 2006 — Commission of the
European Communities v Hellenic Republic

(1) OJ L 327 of 22.12.2000, p. 1.

(Case C-426/06)

(2006/C 326/60)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillán and M. Konstantinidis)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

Reference for a preliminary ruling from the Bundesarbetits-
gericht (Germany) lodged on 18 October 2006 — Birgit
Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfür-
sorge GmbH

(Case C-427/06)

(2006/C 326/61)

Language of the case: German

— declare that, by failing to take the appropriate measures to
transpose fully and correctly Article 2 (points 27, 28, 31,
32, 34 and 36), Articles 4 and 5, Article 6(2), Article 7,
Article 8 (1) and (2), Article 9, Article 10(2), Article 11(2)

Referring court

Bundesarbeitsgericht

C 326/30

EN

Official Journal of the European Union

30.12.2006

Parties to the main proceedings

Applicant: Birgit Bartsch

Defendants: Bosch und Siemens Hausgeräte (BSH) Altersfürsorge
GmbH

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de la Comunidad Autónoma del País
Vasco (Spain)
lodged on 18 October 2006 — Unión
General de Trabajadores de la Rioja UGT-RIOJA v Juntas
Generales del Territorio Histórico de Vizcaya, Diputación
Foral de Vizcaya, Cámara de Comercio, Industria y Navega-
ción de Bilbao, Confederación Empresarial Vasca

Questions referred

1. a) Does the primary legislation of the European Commu-
nities contain a prohibition of discrimination on grounds
of age the protection by which must be guaranteed by the
Member States even if the possibly discriminatory treat-
ment is not connected to Community law?

b) In the event that question a) is answered in the negative:

Does such a connection to Community law arise from
Article 13 EC or — even before the time-limit for trans-
position has
expired — from Council Directive
2000/78/EC of 27 November 2000 establishing a general
framework for equal treatment in employment and occu-
pation (1)?

2. Is any prohibition of discrimination on grounds of age
arising from the answer
to question 1 also applicable
between private employers on the one hand and their
employees or pensioners and their survivors on the other
hand?

(Case C-428/06)

(2006/C 326/62)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Autónoma del
País Vasco

Parties to the main proceedings

3. If question 2 is answered in the affirmative:

Applicant: Unión General de Trabajadores de la Rioja UGT-
RIOJA

a) Is a provision of an occupational pension scheme, which
provides that a survivor's pension will not be granted to a
surviving spouse in the event that the survivor is more
than the deceased former
than 15 years younger
employee, within the scope of the prohibition of discrimi-
nation on grounds of age?

b) If question a) above is answered in the affirmative:

Defendants: Juntas Generales del Territorio Histórico de Vizcaya,
Diputación Foral de Vizcaya, Cámara de Comercio, Industria y
Navegación de Bilbao, Confederación Empresarial Vasca

Can such a provision be justified by the fact that the
employer has an interest in limiting the risks arising from
the occupational pension scheme?

Question referred

c) In the event that question 3 b) is answered in the nega-

tive:

Does
the possible prohibition of discrimination on
grounds of age have unlimited retroactive effect as regards
the law relating to occupational pension schemes or is it
limited as regards the past, and if so in what way?

(1) OJ L 303, p. 16.

Must Article 87(1) EC be construed as meaning that, by
providing for a rate of tax lower than the basic rate set in
Spanish State legislation and for deductions from the amount of
tax payable which do not exist in State tax legislation, provisions
in the field of taxation adopted by the Juntas Generales del
Territorio Histórico de Bizkaia amending Articles 29(1)(a), 37
and 39 of the Provincial Law on Company Tax, which take
effect in the jurisdiction of that infra-State autonomous body,
must be regarded as selective and as covered by the definition of
State aid enshrined in Article 87(1) EC and, accordingly, must
be notified to the Commission pursuant to Article 88(3) EC?