Case C-396/07: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 27 August 2007 — Mirja Juuri v Fazer Amica Oy
Date: 2007-11-10
Institutions: Court of Justice
Subjects: dismissal, indemnification, interpretation of the law, labour law, transfer of businesses, work contract, working conditions

C 269/30

EN

Official Journal of the European Union

10.11.2007

By its first ground of appeal the appellant claims that the Court
of First Instance infringed its duty to give reasons and thus also
Article 82 EC with its contradictory finding of the conduct
leading to an abuse. In one instance the Court found that there
had been an abuse on the basis that the appellant requires
undertakings, which do not use its system or use it only in
respect of certain packaging carrying its logo, to pay the full
licence fee. In another instance the Court states that it only
‘could be the case’ under the provisions in dispute of the Trade
Mark Agreement that the appellant charges the price of the
collection and recovery service for sales packaging which is not
part of its system.

it is argued,

The second, fifth and sixth grounds of appeal relate to the
assessment of the scope of the licence offered by the appellant,
is inadequate, manifestly misleading and
which,
wrong in law as being at variance with the documents and
evidence submitted. Had the Court carried out its assessment of
the facts correctly it would have had to recognise that the appel-
lant does not grant licences in isolation in such a way that the
contested decision would have to be understood as a finding
that the refusal to grant such a licence is abusive and that the
order to cease charging any licence fee for partial quantities of
sales packaging in Article 3 of the contested decision is tanta-
mount to an order to charge a compulsory licence fee. However,
the Court wrongly failed to respect the requirements resulting
from the case-law to give reasons and failed to have regard to
the fact that a compulsory licence is not possible from the point
of view of trade mark and packaging law. The appellant claims
in that regard that the duty to give reasons, the fundamental
principle of proportionality and Article 82 EC and Article 3 of
Council Regulation No 17 were infringed.

Reference for a preliminary ruling from the Finanzgericht
Hamburg lodged on 20 August 2007 — Glencore Grain
Rotterdam BV v Hauptzollamt Hamburg-Jonas

(Case C-391/07)

(2007/C 269/52)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Glencore Grain Rotterdam BV

Defendant: Hauptzollamt Hamburg-Jonas

Questions referred:

Must Article 13 of Regulation (EC) No 1501/95 be interpreted
as meaning that production of
the proof described in the
second paragraph thereof results in waiver of the need not only
for proof of completion of customs formalities for release for
consumption but also for production of the transport docu-
ments (Article 18(3) of Regulation (EEC) No 3665/87, now
Article 16(3) of Regulation (EC) No 800/99)?

from the ‘exclusivity claimed’, which,

By its third and fourth pleas in law the appellant claims that the
Court
infringed its duty to give reasons and thus also
Article 82 EC by its finding that the mark ‘Der Grüne Punkt’
could not benefit
is
argued, is inadequate, misleading and wrong as regards German
packaging and trade mark law. With that
finding it even
infringed the fundamental principle of Community trade mark
law under which a registered mark grants its proprietor an
exclusive right, in particular, in relation to the use of the mark
for goods and services which are identical or similar to those
for which the mark was registered.

it

By its seventh and eighth pleas in law the appellant alleges two
procedural errors. First, the Court introduced new findings or
made findings of
its own motion even though the subject-
matter of those findings was not part of the contested decisions
or introduced by the parties in the proceedings before the
Court. Second, the Court committed a procedural error to the
detriment of the appellant in that it infringed the basic right of
the Union that a case is to be dealt with within a reasonable
period of time.

(1) OJ 2001 L 166, p. 1.

Reference for a preliminary ruling from the Korkein oikeus
(Finland) lodged on 27 August 2007 — Mirja Juuri v Fazer
Amica Oy

(Case C-396/07)

(2007/C 269/53)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: Mirja Juuri

Defendant: Fazer Amica Oy

10.11.2007

EN

Official Journal of the European Union

C 269/31

Questions referred

1. Is Article 4(2) of Council Directive 2001/23/EC (1) to be
interpreted as meaning that a Member State must, in a situa-
tion in which an employee has himself given notice to termi-
nate his contract of employment after his working conditions
have become substantially worse following the transfer of a
in its law guarantee the employee the right to
business,
obtain financial compensation from the employer in the
same way as in the case where the employer has unlawfully
terminated the employment contract, having regard to the
fact that the employer has, as permitted by Article 3(3) of
the directive, observed a collective agreement, binding on the
transferor and guaranteeing the employee better working
conditions, only until its expiry and the worsening of the
working conditions arises from that?

2. If the employer's responsibility in accordance with the direc-
tive is not as extensive as described in Question 1, must the
responsibility of the employer nevertheless be implemented
by providing compensation, for example, for pay and other
the notice period to be observed by the
benefits
employer?

for

(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, 22 March 2001,
p. 16.

Action brought on 27 August 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-397/07)

(2007/C 269/54)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by E. Gippini Fournier and M. Afonso, acting as Agents)

Defendant: The Kingdom of Spain

Forms of order sought by the applicant

— Declare that:

— by subjecting the application of obligatory exemptions

from capital duty to certain conditions;

— by imposing an indirect tax on the transfer of the effec-
tive centre of management or the registered office of a
company to Spain, for those companies which have not
been subject to a similar tax in their country of origin;

— by subjecting, to an indirect tax, capital used to carry out
business transactions through a subsidiary or fixed place
of business for companies established in a Member State
which does not apply a similar
to the
Spanish tax,

tax similar

The Kingdom of Spain has failed to fulfil
under Directive 69/335/EEC (1), of 17 July 1969.

its obligations

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

— Directive 69/335 maintains the status quo regarding the
freedom of Member States to re-introduce a capital duty or
once again to subject transactions, currently exempt, to that
tax. Consequently, Spain cannot abolish its exemptions and
tax all transactions to which the special scheme of Royal
Decree No 4/2004 is applicable, but which are excluded
from the scope of former Article 7(1)(b) and (b)a. Spain
must apply the exemption of Article 45(1)(B)10 to all trans-
actions within the scope of the special scheme of Royal
Decree No 4/2004, whether in fact that scheme applies or
not.

— Article 4 of Directive 69/335 lays down an exhaustive list of
transactions subject
In accordance with
to capital duty.
Article 4(1)(g) the transfer of the effective centre of manage-
ment of a company, firm, association or legal person which
is considered in the host Member State, for the purposes of
charging capital duty, as a capital company, although it is
not so considered in the Member State of origin, is subject
to capital duty. Consequently Spain cannot tax the transfer
of
the effective centre of management or the registered
office of a capital company which is not subject to a similar
tax in its country of origin. The transfer, by a capital
company, of its seat to another Member State is not such as
to generate capital duty, even where the Member State in
which the company was formed did not claim that tax. In
addition, nothing in the Spanish legislation indicates that it
applies solely in cases of tax evasion or fraud.

— Spain cannot subject to capital duty that part of the capital
used to carry out business transactions in Spain through
subsidiaries or fixed places of business. As is clear from
Article 2(1) of Directive 69/335 Spain cannot subject to
capital tax companies whose effective centre of management
in Spain.
is situated in another Member State, and not
Article 2(3) of Directive 69/335 reserves measures, such as
that
to the specific case of a
company whose registered office and effective centre of

to be applied by Spain,