Case C-549/07: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 11 December 2007 — Friederike Wallentin-Hermann v Alitalia — Linee Aeree Italiane SpA
Date: 2007-12-11
Institutions: Court of Justice
Subjects: Germany, Italy, air transport, civil aviation, consumer protection, interpretation of the law, traveller

C 64/18

EN

Official Journal of the European Union

8.3.2008

(b) with the so-called ‘Arbeitsmarktschutzklausel’ (the clause
protecting the labour market) it widened the regional
restrictions for access of workers after 16 April 2003,
namely the date the EU Act of Accession: Poland was
signed;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

A. The posting of polish workers to carry out works contracts
in Germany takes place pursuant
to an agreement of
31 January 1990 between the Government of the Federal
Republic of Germany and the Polish Government on the
posting of workers from Polish undertakings to carry out
works contracts. Under German administrative practice, the
term ‘Unternehmen der anderen Seite’ in Paragraph 1(1) of
that agreement is interpreted as meaning ‘German undertak-
ings’.

B. The result is that only German undertakings can conclude
works contracts under the Agreement. The only alternative
for undertakings from other Member States which wish to
carry out work in Germany is to establish a subsidiary
company in that Member State. Undertakings from other
Member States are thus prevented from taking advantage of
the freedom to provide services granted to them under
Article 49 EC to conclude works contracts, for work to be
carried out in the Federal Republic of Germany, with Polish
undertakings under the Agreement between Germany and
Poland. There is thus direct discrimination of undertakings
from Member States other than Germany which is based on
the nationality or the location of the registered office of
undertakings.

C. Under Article 46 EC in conjunction with Article 55 EC,
discriminatory special
rules may only be justified on
grounds of public policy, public security or public health.
Pursuant to settled case-law, reliance on the justification of
public policy, laid down in Article 46 EC, presupposes that
the maintaining in force of the discriminatory measure must
be necessary to counter a genuine and sufficiently serious
threat to one of the fundamental interests of society.

D. Those conditions are not met in the present case. In order
to properly supervise the implementation of the Agreement
it is not necessary to impose a requirement that undertak-
ings must have their registered office in Germany since all
applications have to be made to the German authorities in
any case. As regards the enforcement of the liability of the
applicant for payment of social security contributions and
penalties for infringements of law, such questions are not
specifically related to the agreement on works contracts, but
are related to the general provision of services in Germany
by undertakings from other Member States. There also

to undertakings

appears to be no reason why the opening of the bilateral
agreement
from other Member States
should lead to an incorrect application or circumvention of
the transitional provisions in the Accession Agreement.
Concerns about the incorrect use of the transitional provi-
sions in no way amount to a sufficiently serious threat to
public policy or security capable of justifying a discrimina-
tory restriction on the freedom to provide services.

E. It is apparent from the wording of the standstill clause in
Chapter 2, Paragraph 13 of Annex XII (List referred to in
Article 24 of the Act of Accession of 16 April 2003) that
the standstill obligation is absolute and any restriction on
the access of Polish workers with works contracts to the
German labour market which places them in a situation
which is worse than the one they were in on 16 April 2003
is prohibited. Pursuant to the so-called ‘Arbeitsmarktschutzk-
lausel’ (the clause protecting the labour market), which is
continuously applied in the administrative practice of the
Federal Employment Agency, works contracts are not
permitted in principle if they are to be concluded in an
agency district in which the average unemployment rate over
the last 6 months has been at least 30 % above the unem-
ployment rate of the Federal Republic of Germany. The list
of the agency districts falling within that rule are updated
quarterly. Consequently,
the Arbeitsmarktschutzklausel
infringes the standstill clause of the Act of Accession since
new agency districts have been added to the list of ‘blocked’
districts after 16 April 2003.

Reference for a preliminary ruling from the Handelsgericht
Wien (Austria) lodged on 11 December 2007 — Friederike
Wallentin-Hermann v Alitalia — Linee Aeree Italiane SpA

(Case C-549/07)

(2008/C 64/27)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Friederike Wallentin-Hermann

Defendant: Alitalia — Linee Aeree Italiane SpA

8.3.2008

EN

Official Journal of the European Union

C 64/19

Questions referred

Defendant: Bundesminister für Inneres

1. Are there extraordinary circumstances within the meaning of
Article 5(3) of Regulation (EC) No 261/2004 of the Euro-
pean Parliament and of the Council of 11 February 2004
establishing common rules on compensation and assistance
to passengers in the event of denied boarding and of cancel-
lation or long delay of flights, and repealing Regulation (EEC)
No 295/91 (1), having regard to the 14th recital
in the
preamble to the regulation, if a technical defect in the aero-
plane,
in particular damage to the engine, results in the
cancellation of the flight, and must the grounds of excuse
under Article 5(3) of the regulation be interpreted in accord-
ance with the provisions of Article 19 of
the Montreal
Convention?

2. If the answer to the first question is in the affirmative, are
there extraordinary circumstances within the meaning of
Article 5(3) of Regulation No 261/2004 where air carriers
cite technical defects as a reason for flight cancellations with
above average frequency,
their
frequency?

solely on the basis of

3. If the answer to the first question is in the affirmative, has
an air carrier taken all ‘reasonable measures’ in accordance
with Article 5(3) of Regulation No 261/2004 if it establishes
that the minimum legal requirements with regard to mainte-
nance work on the aeroplane have been met and is that suffi-
cient
the obligation to pay
compensation in accordance with Article 5 in conjunction
with Article 7 of the regulation?

to relieve the air carrier of

4. If the answer to the first question is in the negative, are
of
extraordinary
circumstances within
Article 5(3) of Regulation No 261/2004 cases of
force
majeure or natural disasters, which were not due to a tech-
nical defect and are thus unconnected with the air carrier?

the meaning

(1) OJ 2004 L 46, p. 1.

for

Reference
from the
preliminary
Verwaltungsgerichtshof (Austria) lodged on 11 December
2007 — Deniz Sahin v Bundesminister für Inneres

ruling

a

(Case C-551/07)

(2008/C 64/28)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Deniz Sahin

Questions referred

1.

64/221/EEC,

the European Parliament and of

(a) Must Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive
2004/38/EC of
the
Council of 29 April 2004 on the right of citizens of the
Union and their family members to move and reside
freely within the
the Member States
territory of
amending Regulation (EEC) No 1612/68 and repealing
72/194/EEC,
Directives
73/148/EEC,
90/364/EEC,
90/365/EEC and 93/96/EEC (1) — ‘the Directive’ — be
interpreted as meaning that they also apply to family
members within the meaning of Article 2(2) of
the
Directive who arrived in the host Member State (Article
2(3) of the Directive) independently of the citizen of the
Union and only became a family member or took up
family life with the citizen of the Union in that Member
State?

68/360/EEC,
75/35/EEC,

75/34/EEC,

(b) If this is so, does it also depend on whether the family
member was lawfully resident in the host Member State
at the moment he became a family member or took up
family life? If the answer is in the affirmative, can resi-
dence be considered lawful
the family member is
entitled to stay solely on the basis of his status as an
asylum seeker?

if

(c) If the answer to Questions 1(a) and (b) is that a family
member who arrived in the host Member State indepen-
dently of the citizen of the Union and became a family
member or took up family life with the citizen of the
Union only in that Member State does not have a right
of residence under the Directive if he is entitled to stay
‘merely’ on the basis of his status as an asylum seeker:
irrespective of the above, do Articles 18 EC and 39 EC,
respectively, read in the light of the fundamental right to
respect for family life, give rise to a right to residence in
circumstances in which the family member has been
staying in the host Member State for nearly four years
and has been married for a year to a citizen of the Union
with whom he has been living for approximately three
and a half years and with whom he has a 20-month-old
child?

2. Do Articles 9(1) and 10(1) of

the Directive preclude a
national provision under which family members of a citizen
of the Union who are not nationals of a Member State and
who, in accordance with Community law, and in particular
Article 7(2) of
the Directive, have a right of residence,
cannot be issued with a residence card (‘Residence card of a
family member of a Union citizen’) only because they are
entitled (temporarily) to reside in the host Member State
under that State's asylum laws?

(1) OJ L 158, p. 77.