Case C-561/07: Action brought on 18 December 2007 — Commission of the European Communities v Italian Republic
Date: 2007-12-18
Institutions: Court of Justice
Subjects: European Commission, Italy, action for annulment (EU), labour law, offshoring

8.3.2008

EN

Official Journal of the European Union

C 64/21

Questions referred

1. Does

the

law of

the European Union,

in particular
Article 6(1) of Commission Regulation (EC) No 60/2004 (1),
in conjunction with recital 3 in the preamble to Commission
Regulation (EC) No 832/2005 (2), and Article 4(1) and (2) of
Commission Regulation (EC) No 1972/2003 (3), preclude the
ascertainment of the amount of an operator's surplus stock
by automatically deducting from the surplus stock (regarded
as transitional stock) the average stock as at 1 May of the
operator's years of activity preceding 1 May 2004, but not
more than four years of activity, multiplied by 1.2?

If the answer is in the affirmative, would the answer be
different if in determining the transitional stock and surplus
stock it were possible also to take into account the growth of
the operator's production, processing or sales volume, the
maturation period of the agricultural product, the time when
the stocks were built up, and other circumstances indepen-
dent of the operator?

2. It is compatible with the law of the European Union, in par-
ticular
the objective of Commission Regulation (EC)
No 1972/2003, to regard the entire stock of an agricultural
product in the operator's possession as at 1 May 2004 as the
operator's surplus stock?

3. If the operator started to deal

in the corresponding agri-
cultural product less than one year before 1 May 2004, does
the law of the European Union, in particular Article 4 of
Commission Regulation (EC) No 1972/2003 and Article 6
of Commission Regulation (EC) No 60/2004, preclude that
operator himself having to prove that the amount of the
stock of the agricultural product in his possession on 1 May
2004 is equivalent to the amount of the stock of the agri-
cultural product customarily produced, sold, otherwise trans-
ferred for payment or without payment or acquired by him?

If the answer is in the affirmative, would the answer be
different if, regardless of the operator's obligation to provide
proof, the administrative body had an obligation to take into
account, on the basis of the declaration of the agricultural
product submitted by the operator, in assessing the opera-
tor's transitional stock and surplus stock, the growth of the
operator's production, processing or sales volume and stock
after 1 May 2004?

inter alia of

determining surplus quantities of sugar, isoglucose or fruc-
tose,
storage capacities, be interpreted as
meaning that in a situation in which the operator's storage
capacities have increased during the year preceding accession
that is a basis for reducing the surplus stock of the agri-
cultural product in the possession of the operator as at 1 May
2004, regardless of
the
volume of
the agricultural product processed and the
amount of stocks of the agricultural product in the years of
activity preceding 1 May 2004 and during the two years
following 1 May 2004?

the operator's economic activity,

6. Does Article

of

10

Regulation

Commission

(EC)
No 1972/2003 preclude the demanding of a surplus stock
charge from an operator by a tax notice in a situation in
which the tax notice was indeed drawn up while the regu-
lation was applicable, on 30 April 2007, but according to
national law became enforceable against the operator after
the final date of application of the Commission regulation,
and national
for
demanding the stock charge?

law does not establish a time-limit

(1) Commission Regulation (EC) No 60/2004 of 14 January 2004 laying
down transitional measures in the sugar sector by reason of the
accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania,
Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 9, p. 8).
(2) Commission Regulation (EC) No 832/2005 of 31 May 2005 on the
determination of surplus quantities of sugar, isoglucose and fructose
for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary,
Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3).

(3) Commission Regulation (EC) No 1972/2003 of 10 November 2003
on transitional measures to be adopted in respect of trade in agri-
cultural products on account of the accession of the Czech Republic,
Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia
and Slovakia (OJ 2003 L 293, p. 3).

Action brought on 18 December 2007 — Commission of
the European Communities v Italian Republic

(Case C-561/07)

(2008/C 64/32)

Language of the case: Italian

4. Is it compatible with the objective of Commission Regulation
(EC) No 1972/2003 and Commission Regulation (EC)
No 60/2004 to levy the surplus stock charge where the
operator is found to have a surplus stock as at 1 May 2004
but the operator shows that he has not obtained a real
advantage in terms of a price difference from marketing the
surplus stock after 1 May 2004?

Parties

5. Must the provisions of Article 6(3) of Commission Regu-
lation (EC) No 60/2004, under which account is taken, in

Applicant: Commission of the European Communities (repre-
sented by: J. Enegren and L. Pignataro, Agents)

C 64/22

EN

Official Journal of the European Union

8.3.2008

Defendant: Italian Republic

government has none the less maintained that in the present
case Article 5(3) of the directive applies.

Form of order sought

— declare that, by maintaining in force the provisions of
Article 47(5) and (6) of Law No 428 of 29 December 1990
in the event of corporate crisis according to (c) of the fifth
paragraph of Article 2 of Law No 675 of 12 August 1977
so that the rights of employees set out in Articles 3 and 4 of
Directive 2001/23/EC are not safeguarded in the event of
transfers of undertakings in which a ‘situation of crisis’ has
been ascertained, the Italian Republic has failed to fulfil its
obligations under that directive;

— order the Italian Republic to pay the costs.

The Commission has noted in the application that that provi-
sion does allow, in the event of a transfer of an undertaking in
which the transferor is in a situation of serious economic crisis,
to amend the employment conditions of the employees in order
to safeguard employment opportunities, ensuring the survival of
the undertaking, the business or parts of the undertaking or
business. However,
that provision entitles the Member State
only to allow the transferor and the employees' representatives
to agree to amend the employment conditions in certain
circumstances and not to exclude, as Article 47(5) and (6) of
Law No 428/90 do, the application of Articles 3 and 4 of the
directive.

(1) OJ 2001 L 82, p. 16.

Pleas in law and main arguments

Action brought on 19 December 2007 — Commission of
the European Communities v Kingdom of Spain

that

and (6))

the provisions of Law
The Commission considers
No 428/1990 (Article 47(5)
infringe Directive
2001/23/EC of 12 March 2001 on the approximation of the
laws of
the Member States relating to the safeguarding of
employees' rights in the event of transfers of undertakings, busi-
nesses or parts of undertakings or businesses (1), since the
employees of the undertaking admitted to the system of the
extraordinary redundancy fund transferred to the acquiror lose
the rights provided for by Article 2112 of the Civil Code, except
for any guarantees provided for by the union agreement (‘the
most favoured treatment’ set out in Article 47(5)).

(Case C-562/07)

(2008/C 64/33)

Language of the case: Spanish

That means that the employees of an undertaking admitted to
the redundancy fund system (CIGS) for a situation of crisis do
not receive, in the event of a transfer of the undertaking, the
safeguards provided for in Articles 3 and 4 of the Directive.

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and I. Martinez del Peral Cagigal, agents)

that

that provides

So far as concerns Article 47(6),
the
employees who do not become employees of the acquiror, the
lessee or the new employer are entitled to priority in the recruit-
ment carried out by the latter for a year from the date of the
transfer, or for a longer period laid down by collective agree-
ments. Article 2112 of the Civil Code does not apply to those
workers who are recruited by the acquiror,
lessee or new
employer after the transfer of the undertaking.

Defendant: Kingdom of Spain

Form of order sought

The Italian Government has not challenged the Commission's
analysis on the basis of which the employees of the undertaking
admitted to the CIGS system for situation of crisis do not
receive, in the event of a transfer of the undertaking, the safe-
guards laid down in Articles 3 and 4 of the directive. That

— Declare that by treating differently capital gains obtained in
Spain by non-residents from those obtained by residents
until 31 December 2006, the Kingdom of Spain failed to
fulfil its obligations under Articles 39 and 56 EC and Arti-
cles 28 and 40 of the EEA Agreement;

— Order the Kingdom of Spain to pay the costs.