Case C-311/07: Action brought on 5 July 2007 — Commission of the European Communities v Republic of Austria
Date: 2007-09-08
Institutions: Court of Justice
Subjects: Austria, EU law - national law, action for failure to fulfil an obligation, fixing of prices, health care system, health expenditure, health insurance, medicinal product

C 211/24

EN

Official Journal of the European Union

8.9.2007

Questions referred

Form of order sought

the insolvency of

1. Is Article 8a of Council Directive 80/987/EEC (1) of
20 October 1980 on the approximation of the laws of the
Member States relating to the protection of employees in the
event of
their employer, most recently
amended by Directive 2002/74/EC (2) of the European Parlia-
ment and of the Council, to be interpreted as meaning that,
for an undertaking to be regarded as having activities in the
territory of a particular Member State, it is necessary for that
undertaking to have a subsidiary or a permanent place of
business in that Member State?

2. If the answer to Question 1 is negative, what conditions
must be met for an undertaking to be regarded as having
activities in several Member States?

— Declare that the Republic of Austria has failed to fulfil its
obligations under Article 6(1) of Council Directive
89/105/EEC of 21 December 1988 relating to the trans-
parency of measures regulating the pricing of medicinaI
products for human use and their inclusion in the scope of
national health insurance systems (1), by failing to lay down
a time-limit in accordance with that provision for the inclu-
sion of medicinal products in the yellow or green sections of
the ‘Erstattungskodex’ (Reimbursement Code);

— order the Republic of Austria to pay the costs.

3. If the company is to be regarded as having activities in the
territory of several Member States and an employee performs
work for the company in several of those Member States,
is usually
what
performed?

criteria determine where

the work

4. Does Article 8a of Council Directive 80/987/EEC of
20 October 1980 on the approximation of the laws of the
Member States relating to the protection of employees in the
event of
their employer, most recently
amended by Directive 2002/74/EC of the European Parlia-
ment and of the Council, have direct effect?

the insolvency of

(1) OJ 1980 L 283, p. 23.
(2) OJ 2002 L 270, p. 10.

Action brought on 5 July 2007 — Commission of the
European Communities v Republic of Austria

(Case C-311/07)

(2007/C 211/45)

Language of the case: German

Parties

Pleas in law and main arguments

includes measures to limit

Directive 89/105/EEC aims,
inter alia, to remove disparities in
national measures of an economic nature which are adopted by
the Member States in order to control public health expenditure
on medicinal products. That
the
range of products covered by national health insurance systems.
In order to prevent such disparities from hindering intra-Com-
munity trade in medicinal products, the Directive lays down
certain requirements in respect of the procedure for including
products within the list of medicinal products covered by
national health insurance systems. Accordingly, Article 6(1) of
the Directive sets a time-limit for decisions on the inclusion of
medicinal products in that ‘positive list’.

In Austria, there are three different categories of reimbursement
within the list of products covered by the health insurance
system. The ‘green section’ covers medicinal products,
the
prescription and reimbursement of which without prior
approval by the social security authority is appropriate and justi-
fied on medical and economic grounds. The costs of medicinal
products listed in the ‘yellow section’ are reimbursed only in
specific well-founded cases after prior approval by the social
security authority. Finally,
the ‘red section’ covers medicinal
products in respect of which there is an application pending for
inclusion in the yellow or green sections. The costs of medicinal
products listed in the red section are reimbursed in specific
well-founded cases after prior approval by the social security
authority, provided that there is no alternative in the yellow or
green sections. A valid application for inclusion of a medicinal
product in the yellow or green sections of the Reimbursement
Code thus necessarily means that that product is included in the
red list for a certain period of time. Under the Austrian rules,
medicinal products in the red section can remain in that section
for no more than 24 months. If the average EU price cannot be
established, the time-limit is extended to 36 months.

Applicant: Commission of the European Communities (repre-
sented by: B. Stromsky and B. Schima, acting as Agents)

Defendant: Republic of Austria

rule is

That
incompatible with Article 6(1) of Directive
89/10/EEC, because there is no guarantee that a decision on the
inclusion of a medicinal product in the yellow or green sections,
as required under that provision of the Directive, will be taken
within 90 or 180 days.

8.9.2007

EN

Official Journal of the European Union

C 211/25

As the Court of Justice held in its judgment of 12 June 2003 in
Case C-229/00 Commission v Finland, the objectives of the Direc-
tive would be compromised if a Member State were able to
introduce a dual procedure for the establishment of a list of
medicinal products qualifying for higher-rate reimbursement,
one pursuant to the obligations laid down by Article 6(1) of the
Directive, the other being exempt in part from those obligations
and, in part, not complying with the objectives laid down by
that Directive. Contrary to the Austrian Government's view, it is
not only applications for inclusion in a positive list, but also
applications for inclusion in a particular category of such a list,
that must be dealt with in accordance with the requirements of
Article 6(1) of the Directive if, as in Austria, inclusion in that
category entails more favourable conditions of reimbursement
than inclusion in another category or remaining in the current
category. Accordingly, it is necessary to ensure that decisions on
such applications are taken within the period laid down under
Article 6(1) of the Directive.

Since Austrian law does not make such provision, it is incompa-
tible with the Community legislation referred to, having regard
to the interpretation of that legislation by the Court of Justice.

(1) OJ 1989 L 40, p. 8.

Reference for a preliminary ruling from the Tribunal d'in-
stance, Paris, lodged on 6 July 2007 — JVC France SAS v
(Direction Nationale du
Administration des douanes

Renseignement et des Enquêtes douanières)

(Case C-312/07)

(2007/C 211/46)

Language of the case: French

Referring court

Tribunal d'instance de Paris

Parties to the main proceedings

Applicant: JVC France SAS

Questions referred

classified under

1. Must a camcorder, which when imported is unable to record
external video signals, be
subheading
8525 40 99, if its video interface can subsequently be recon-
figured as a video input by using software or an enabler
(widget) equipped with electronic circuitry which enables it
to record an external video sound signal, even though the
manufacturer and the seller have not mentioned this possibi-
lity and do not endorse it?

2. If so, to the extent that the subsequent amendments of the
explanatory notes entail a change in Community practice
with regard to the classification of camcorders and an excep-
tion to the principle that goods must be classified according
to their actual characteristics at the time of customs clear-
ance, was the European Commission entitled to make this
change by amending the explanatory notes, and hence with
retrospective effect, rather than by adopting a classification
regulation that was applicable only in the future?

Reference for a preliminary ruling from the Juzgado de lo
Mercantil (Commercial Court) No 3 Barcelona lodged on
5 July 2007 — Kirtruna S. L. v Cristina Delgado Fernández
de Heredia, Sergio Sabini Celio, Miguel Oliván Bascones,
Red Elite de Electrodomésticos S.A. and Electro Calvet (or
Calbet) S.A.

(Case C-313/07)

(2007/C 211/47)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil (Commercial Court) No 3 Barcelona

Parties to the main proceedings

Applicant: Kirtruna S. L.

Defendant: Administration des douanes (Direction Nationale du
Renseignement et des Enquêtes douanières)

Defendants: Cristina Delgado Fernández de Heredia, Sergio
Sabini Celio, Miguel Oliván Bascones, Red Elite de Electrodo-
mésticos S.A. and Electro Calbet (formerly Calvet) S.A.