Case C-313/07: 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.
Date: 2007-09-08
Institutions: Court of Justice
Subjects: debt, financial solvency, interpretation of the law, job preservation, labour law, transfer of businesses, work contract

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.

C 211/26

EN

Official Journal of the European Union

8.9.2007

Question(s) referred

1. Should the guarantee, that the transferee who acquires a
business in insolvency or a production unit of that business
does not take on liability for debts arising out of employ-
ment contracts or other employment relationships provided
that the insolvency proceedings give rise to protection at
least equivalent to that provided for in Community directives,
be considered to relate uniquely and exclusively to debts
which are directly linked to employment contracts or other
employment relationships, or, in the framework of an overall
protection of the rights of employees and the safeguarding of
employment, should that guarantee be extended to other
contracts which are not strictly related to employment, but
nonetheless affect the premises in which the business of the
undertaking is carried out, or affect specific methods or
instruments of production which are essential to the conti-
nuation of the business activity?

2. In the same context of guaranteeing the rights of

the
employees, can the purchaser of the productive unit obtain
from the court which has charge of
the insolvency and
which authorises the award a guarantee not only in relation
to rights which arise from the employment contracts but
also in relation to other contracts and obligations of the
insolvent party which are essential to guarantee the continua-
tion of the business?

3. If a party acquires an insolvent business or a productive unit
and gives an undertaking to safeguard all or some of the
employment contracts, and accepts liability for them by
subrogation, does that party obtain the guarantee that there
will not be asserted against him or transferred to him either
other debts of the transferor connected to the contracts or
relationships where he accepts liability by subrogation, parti-
cularly tax contingencies or social security debts, or rights
which may be exercised by the holders of rights and obliga-
tions arising from contracts entered into by the insolvent
party and which are transferred to the acquirer as a package
or as part of a productive unit?

4. In brief, can Directive 23/2001 (1) be interpreted to mean
that, as regards the transfer of productive units or businesses
which have been judicially or administratively declared insol-
vent and in liquidation, not only are contracts of employ-
ment given protection, but so also are other contracts which
have a direct and immediate effect on the safeguarding of
those contracts?

5. The final question is whether the wording of Article 149(2)
of the Ley Concursal (Spanish Law on Insolvency), when it
refers to the transfer of an undertaking, is inconsistent with
Article 5(2)(a) of Directive 23/2001 as cited above, to the
extent that subrogation transfers to the transferee the obliga-
tions of the bankrupt or insolvent party relating to or asso-
ciated with employment, notably the social security debts
which might be unpaid by the insolvent company?

(1) Council Directive 2001/23/EC of 12 March 2001 on the approxima-
tion of the laws of the Member States relating to the safeguarding of
employees' rights in the event of transfers of undertakings, businesses
or parts of undertakings or businesses (OJ L 82, p. 16).

Reference for a preliminary ruling from the Korkein
hallinto-oikeus (Finland) lodged on 10 July 2007 — Lahti
Energia Oy

(Case C-317/07)

(2007/C 211/48)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Lahti Energia Oy

Other parties: Lahden ympäristölautakunta, Hämeen ympäristö-
keskus, Salpausselän luonnonystävät ry

Questions referred

1. Is Article 3(1) of Directive 2000/76/EC (1) to be interpreted
as meaning that the directive does not apply to the incinera-
tion of gaseous waste?

2. Is a gas plant where gas is generated from waste by means of
pyrolysis to be regarded as an incineration plant within the
meaning of Article 3(4) of Directive 2000/76/EC even if it
has no incineration line?

3. Is combustion in the boiler of the power plant of producer
gas which is generated in the gas plant and purified after the
gasification process to be regarded as an operation within
the meaning of Article 3 of Directive 2000/76/EC? Does it
have any bearing that the purified producer gas replaces the
use of fossil fuels and that the emissions per unit of energy
generated by the power plant would be lower when using
purified producer gas generated from waste than when using
other fuels? Is it of any relevance to the interpretation of the
scope of Directive 2000/76/EC, first, whether the gas plant
and the power plant form one plant having regard to the
technical production aspects and the distance between them
or, second, whether the purified producer gas generated at
the gas plant is portable and may be used elsewhere, for
example for energy production, as a fuel or for another
purpose?

4. Under what conditions may the purified producer gas
generated at the gas plant be regarded as a product, so that
the regulations on waste no longer apply to it?

(1) Directive 2000/76/EC of

the
Council of 4 December 2000 on the incineration of waste, OJ L 332,
28.12.2000, p. 91.

the European Parliament and of