Case C-416/07: Action brought on 11 September 2007 — Commission of the European Communities v Hellenic Republic
Date: 2007-11-24
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, animal welfare, approval, protection of animals, slaughter of animals, transport of animals

C 283/16

EN

Official Journal of the European Union

24.11.2007

2. Must Article 19(2)(a) be interpreted as meaning that — at
least in a situation in which the ship that is to be considered
as the place of work is not used exclusively or predominantly
in the territorial waters of any one country, but for interna-
tional transport services, such as,
in the present case, for
regular passenger services between Germany and Finland —
the court for the home port or for the port of registry in the
country under whose flag the ship sails is to be considered
as the court for the habitual place of work?

3. Must it be assumed that an employee who works exclusively
on a particular ship used for international transport services
does not habitually carry out his work in any one
country and that,
than
Article 19(2)(a) has to be applied for the purposes of deter-
mining which court — in a country other than the country
where the employee is domiciled — has jurisdiction?

therefore, Article 19(2)(b) rather

4. If so, must Article 19(2)(b) be interpreted as meaning that
the place where the business which engaged the employee is
situated can also be an office located in one of the ports
regularly visited by the ship, even though it is not operated
by the employer itself but by another company entrusted by
the employer — by way of a management contract — with
organising in its capacity as ‘operator’ the commercial and
technical running of its ships, and that company employs, in
that office, a ‘crew manager’ who is responsible, inter alia, for
even though
coordinating the personnel's assignments,
employment contracts were not concluded in that office but
on the ship by the ship's captain, but where the office was
used to issue duty rosters and to receive certificates of inca-
pacity to work and by the ‘crew manager’ working there to
give notices of termination of employment ?

5. If question 4 is to be answered in the affirmative:

a) Can the purchaser of the ship whose crew members were
able, pursuant to Article 19(2)(b), to sue their former
employer in the court for the place in which the business
which engaged the employee was situated be sued in the
same court simply on the basis that the employees who
were given notice claim that their contracts of employ-
ment were transferred to the purchaser in accordance
with provisions on the transfer of undertakings in the
national law they claim ought to be applied?

b) If an action is also brought against the ‘operator’ — iden-
tified in question 4 — who gave the notice, can this
action be brought in the same court as the action against
the former employer?

Reference for a preliminary ruling from the Tribunale
ordinario
on
10 September 2007 — Lodato Gennaro & C. SpA v Istituto
nazionale della previdenza sociale (INPS), SCCI

di Nocera

Inferiore

lodged

(Italy),

(Case C-415/07)

(2007/C 283/30)

Language of the case: Italian

Referring court

Il Tribunale ordinario di Nocera Inferiore

Parties to the main proceedings

Applicant: Lodato Gennaro & C. SpA

Defendants:
SCCI

Istituto nazionale della previdenza sociale (INPS),

Question referred

the Guidelines on national

Is the Community law laid down in the Guidelines on aid to
employment,
regional aid and
Commission Regulation (EC) No 2204/2002 of 5 December
2002 (1) to be interpreted as meaning that, in order to deter-
mine whether there has been an increase in employment, a
comparison must be made between the average AWU [annual
working units] for the year preceding the recruitment of new
workers and the average AWU for the year following their
recruitment, or are those provisions to be interpreted instead as
meaning that a comparison must — or may — be made
between the average AWU for the year preceding the recruit-
ment of new workers and the exact number of workers present
on the specific day on which those new workers were recruited?

(1) OJ 2002 L 337, p. 3.

Action brought on 11 September 2007 — Commission of
the European Communities v Hellenic Republic

(Case C-416/07)

(2007/C 283/31)

Language of the case: Greek

(1) OJ L 12, 16.1.2001, p. 1.

Parties

Applicant: Commission of the European Communities (repre-
sented by: Eleni Tserepa-Lacombe and Friedrich Erlbacher)

Defendant: Hellenic Republic

24.11.2007

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Official Journal of the European Union

C 283/17

Form of order sought

Pleas in law and main arguments

1. declare that, by failing to adopt the necessary measures:

— so that any transporter of animals is covered by an
authorisation from the competent authority and is regis-
tered in a manner enabling the competent authority to
identify him rapidly, in particular in the event of failure
to comply with the rules governing the proper treatment
of animals during transport;

— so that the competent authorities carry out obligatory

checks of the route plan/journey log;

— so that animal rest facilities are provided for following

unloading from vessels, in or near ferry ports;

— so as to ensure that the inspections of the means of

transport and the animals are actually carried out;

— so that effective, proportionate and dissuasive penalties
are imposed in the event of repeated or serious infringe-
ments of
the provisions relating to the protection of
animals during transport,

the Hellenic Republic has failed to fulfil its obligations under
Article 5(A)(1)(a)(i) and (ii), Article 5(A)(2)(b), the first indent
of Article 5(A)(2)(d)(i) and Articles 8, 9 and 18(2) of Council
Directive 91/628/EEC (1) of 19 November 1991 on the
protection of animals during transport and amending Direc-
tives 90/425/EEC and 91/496/EEC, under point 7(b) of
Chapter VII of the annex to that directive and, from 5 January
2007, under Articles 5(4), 6(1), 13(3) and (4), 15(1), 25, 26
and 27(1) of Council Regulation (EC) No 1/2005 (2) of
22 December 2004 on the protection of animals during
transport and related operations and amending Directives
(EC)
64/432/EEC
No 1255/97;

93/119/EC

Regulation

and

and

2. declare that, by failing to adopt the necessary measures:

— to ensure observance of the rules governing the stunning

of animals at the time of slaughter; and

— to ensure appropriate inspections and controls in slaugh-

terhouses,

the Hellenic Republic has failed to fulfil its obligations under
Articles 3, 5(1)(d), 6(1)
and 8 of Council Directive
93/119/EC (3) of 22 December 1993 on the protection of
animals at the time of slaughter or killing;

3. order the Hellenic Republic to pay the costs.

the Commission submits that

the Hellenic
In this action,
Republic is not
implementing correctly certain provisions
relating to the protection of animals during transport and at the
time of slaughter.

during

animals

transport

The Commission requests the Court to declare that, by having
failed to adopt the legal measures and the necessary administra-
tive measures to comply with the obligations laid down in
Article 5(A)(1)(a)(i) and (ii), Article 5(A)(2)(b), the first indent of
Article 5(A)(2)(d)(i) and Articles 8, 9 and 18(2) of Council
Directive 91/628/EEC of 19 November 1991 on the protection
of
amending Directives
90/425/EEC and 91/496/EEC, in point 7(b) of Chapter VII of
the annex to that directive and, from 5 January 2007, in Arti-
cles 5(4), 6(1), 13(3) and (4), 15(1), 25, 26 and 27(1) of
Council Regulation (EC) No 1/2005 of 22 December 2004 on
the protection of animals during transport and related opera-
tions and amending Directives 64/432/EEC and 93/119/EC and
Regulation (EC) No 1255/97 on the protection of animals
during transport, the Hellenic Republic has failed to fulfil
its
obligations under that legislation.

and

The Commission also requests the Court to declare that, by
having failed to adopt the legal measures and the necessary
administrative measures to comply with the obligations laid
down in Articles 3, 5(1)(d), 6(1) and 8 of Council Directive
93/119/EC of 22 December 1993 on the protection of animals
at the time of slaughter or killing, the Hellenic Republic has
failed to fulfil its obligations under that legislation.

The Commission points out that, in accordance with the Court
of Justice's case-law, a failure to fulfil obligations may result
from an administrative practice that infringes Community law.
In the present action, the Commission relies not on an isolated
finding of fact but on a significant number of cases which were
discovered by its Food and Veterinary Office (FVO) and consti-
tute a structured and general infringement of the obligations of
the Hellenic Republic under the abovementioned provisions.

that

the Commission submits

In particular,
the Hellenic
Republic has not adopted all the necessary measures so that any
transporter of animals is covered by an authorisation from the
competent authority and is registered in a manner enabling the
competent authority to identify him rapidly, in particular in the
event of failure to comply with the rules governing the proper
treatment of animals during transport, so that the competent
authorities carry out obligatory checks of the route plan/journey
log, so that animal rest facilities are provided for following
in or near ferry ports, and so as to
unloading from vessels,
ensure that
transport and the
animals are carried out.

inspections of

the means of

C 283/18

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Official Journal of the European Union

24.11.2007

The Commission further submits that the Hellenic Republic has
not adopted all the necessary measures to ensure observance of
the rules governing the stunning of animals at the time of
slaughter and to ensure appropriate inspections and controls in
slaughterhouses.

The Commission states that both on expiry of the period set in
the reasoned opinion and after that date, and notwithstanding
certain efforts on the part of the Greek authorities, the Hellenic
Republic had not adopted all the measures necessary to make
good the deficiencies alleged against it. The majority of the
recommendations addressed to the Greek authorities were not
implemented or were implemented inadequately. On the other
hand, mission reports paint a very worrying picture regarding
implementation of the abovementioned measures.

(1) OJ L 340, 11.12.1991, p. 17.
(2) OJ L 3, 5.1.2005, p. 1.
(3) OJ L 340, 31.12.1993, p. 21.

the parent company, when it

Article 223 A et seq. of the code général des impôts — of
including within the membership of a tax-integrated group a
sub-subsidiary of
is held
through a subsidiary which, being established in another
Member State of the European Community and not carrying
on business in France, is not subject to French corporation
tax and thus cannot itself form part of the group, constitute
a restriction on freedom of establishment by reason of the
the parent
tax consequences arising from the choice of
company as to whether to hold a sub-subsidiary through a
French subsidiary or, instead, through a subsidiary established
in another Member State?

2. If the answer is in the affirmative, can such a restriction be
justified either by the need to maintain the coherence of the
‘tax integration’ system — in particular the arrangements for
the tax neutrality of transactions within the group, having
regard to the consequences of a system which consists of
treating a subsidiary established in another Member State as
belonging to the group solely for the purposes of the condi-
tion as to the indirect holding of the sub-subsidiary, while
remaining automatically excluded from the application of the
group scheme since it is not subject to French tax — or by
any other overriding reason of public interest?

Reference for a preliminary ruling from the Conseil d'Etat
(France) lodged on 12 September 2007 — Société Papillon
v Ministère du budget, des comptes publics et de la
function publique

(Case C-418/07)

(2007/C 283/32)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicant: Société Papillon

Action brought on 12 September 2007 — Commission of
the European Communities v Kingdom of Sweden

(Case C-419/07)

(2007/C 283/33)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Mojzesowicz and V. Bottka, acting as Agents)

Defendant: Ministère du budget, des comptes publics et de la
function publique

Defendant: Kingdom of Sweden

Form of order sought

Questions referred

1. Inasmuch as the tax benefit arising under the ‘tax integration’
scheme affects the liability to tax of the parent company of
the group, which can offset the profits and losses of all the
companies of the integrated group, and benefit from the tax
neutrality of the internal transactions of that group, does the
impossibility — resulting from the scheme laid down under

— Declare that, by failing correctly to implement Article 2 of
Directive 2002/77/EC of 16 September 2002 on competi-
tion in the markets for electronic communications networks
and services (1) (the Competition Directive), the Kingdom of
Sweden has failed to fulfil its obligations thereunder;

— order the Kingdom of Sweden to pay the costs.