Case C-310/07: Reference for a preliminary ruling from the Lunds Tingsrätt (Sweden) lodged on 28 June 2007 — Svenska staten genom Tillsynsmyndigheten i konkurser v Anders Holmqvist
Date: 2007-09-08
Institutions: Court of Justice
Subjects: branch, employer, financial solvency, interpretation of the law, occupational safety, workplace

8.9.2007

EN

Official Journal of the European Union

C 211/23

Appeal brought on 5 July 2007 by Koldo Gorostiaga
Atxalandabaso against the order of
the Court of First
Instance (Second Chamber) delivered on 24 April 2007 in
Case T-132/06, Gorostiaga Atxalandabaso v European
Parliament

(Case C-308/07 P)

(2007/C 211/43)

Language of the case: French

Parties

Appellant: Koldo Gorostiaga Atxalandabaso (represented by: D.
Rouget, lawyer)

Other party to the proceedings: European Parliament

Form of order sought

— declare this appeal to be well-founded and, consequently,
annul the order of the Court of First Instance of 24 April
2007;

— give a definitive ruling on the proceedings and annul the
decision of the Secretary General of the European Parliament
of 22 March 2006, ordering the reimbursement by the
appellant of a sum of EUR 118 360,18 and proceeding to
make a deduction from various parliamentary allowances
owed to the appellant by the Parliament;

— order the defendant to pay its own costs and those incurred

by the appellant.

Pleas in law and main arguments

The appellant makes six pleas in support of his appeal.

In his third plea, the appellant claims that the Court incorrectly
interpreted the scope of the judgment of 22 December 2005.
Since the decision taken by the Secretary General of the Parlia-
ment on 24 February 2004 had been annulled as ultra vires, the
appellant in fact had no reason to lodge an appeal against that
judgment before the Court of Justice, since the effect of the
finding of ultra vires by the Court of First Instance was that the
flawed decision did not exist.

In his fourth plea, the appellant challenges the Court's automatic
refusal to take into account the arguments which he had put
forward to obtain the annulment of the decision of the Secre-
tary General of the Parliament of 22 March 2006. He submits
that that last decision is in fact a new decision, separate from
the decision of 24 February 2004, and the Court therefore had
a duty to examine all the pleas, of substance and procedure,
which he had put forward to challenge it.

In his fifth plea, the appellant criticises the Court for having
refused to consider the plea alleging force majeure, even though
no such plea had been raised in the action brought against the
decision of 24 February 2004.

Lastly,
in his sixth plea the appellant criticises the Court for
having misinterpreted the principle of sound administration by
refusing, inter alia, any reference to the Code of Good Adminis-
trative Behaviour adopted by the Parliament on 6 September
2001.

Reference for a preliminary ruling from the Lunds
Tingsrätt (Sweden) lodged on 28 June 2007 — Svenska
staten genom Tillsynsmyndigheten i konkurser v Anders
Holmqvist

(Case C-310/07)

(2007/C 211/44)

Language of the case: Swedish

In his first plea, the appellant challenges the use of Article 111
of the Rules of Procedure of the Court of First Instance, which
he claims denies him the right to a fair trial since he has neither
been given prior opportunity to express his views before the
Court of First Instance nor been able to reply to the Parliament's
arguments.

Referring court

Lunds Tingsrätt

In his second plea, the appellant submits that the principle of
impartiality has been infringed since the same judges ruled on
the substance of the two successive actions which he brought in
Cases T-146/04 and T-132/06 — which gave rise, respectively,
to the judgment of 22 December 2005 and to the order of
24 April 2007. That principle demands that a judge cannot
hear and determine, even at the same level of jurisdiction, a case
based on facts which are identical, or sufficiently connected, to
those of a case on which he has ruled previously.

Parties to the main proceedings

Applicant:
konkurser

Svenska

staten

genom Tillsynsmyndigheten

i

Defendant: Anders Holmqvist

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.