Case C-467/07: Reference for a preliminary ruling from the Monomeles Protodikio Livadias (Livadia Court of First Instance) lodged on 22 October 2007 — Panagiotis Koskovolis and Ekaterini Pappa v Municipality of Kiriaki, Beotia
Date: 2007-12-22
Institutions: Court of Justice
Subjects: EU law - national law, contract, framework agreement, interpretation of the law, labour law, temporary employment

22.12.2007

EN

Official Journal of the European Union

C 315/27

2. Does national legislation implementing the Sixth Directive,
in particular Article 17 thereof,
infringe Article 87 EC
because, while the legislation does allow persons liable to
pay VAT who carry out taxable transactions the advantage
referred to in Question 1 in respect of properties which they
use for private residential purposes, that advantage is not
available to taxable persons whose transactions are exempt?

3. Does Article 17(6) of

the Sixth Directive continue to
the national
legislature amends a national
have effect
if
the exclusion of deductions (in this case,
provision for
the Austrian Umsatzsteuergesetz
Paragraph 12(2)(1) of
(Law on Turnover Tax) 1994), which is based on
(UStG)
Article 17(6) of the Sixth Directive, with the express inten-
tion of retaining that exclusion of deductions, and the
Austrian UStG would indeed result in the retention of an
exclusion of deductions, but — owing to an error in the
interpretation of Community law (in this case Article 13B(b)
of the Sixth Directive) which was only subsequently identi-
fied — the national legislature introduced a provision which,
viewed in isolation, would, according to Community law
(Article 13B(b) of the Sixth Directive as interpreted in Case
C-269/00 Seeling [2003] ECR I-4101), allow a deduction to
be made?

4. If the answer to Question 3 is in the negative:

of

of

an

the

effect

exclusion

Could
deductions
(Paragraph 12(2)(2)(a) of the UStG 1994) which is based on
the ‘standstill clause’ (Article 17(6) of the Sixth Directive) be
two
restricted if
overlapping national provisions excluding deductions (Para-
graph 12(2)(2)(a) of the UStG 1994 and Paragraph 12(2)(1)
of
the UStG 1994) and subsequently does not proceed
further because it finds that it has erred in law?

legislature amends one of

the national

(1) OJ 1977 L 145, p. 1.

Reference for a preliminary ruling from the Monomeles
Protodikio Livadias (Livadia Court of First Instance) lodged
on 22 October 2007 — Panagiotis Koskovolis and Ekaterini
Pappa v Municipality of Kiriaki, Beotia

(Case C-467/07)

(2007/C 315/47)

Language of the case: Greek

Referring court

Livadia Court of First Instance

Parties to the main proceedings

Claimants: Panagiotis Koskovolis and Ekaterini Pappa

Defendant: Municipality of Kiriaki

Questions referred

1. Do clause 5 and clause 8(1) and (3) of the Framework Agree-
ment on fixed-term work concluded by ETUC, UNICE and
CEEP, which forms an integral part of Council Directive
1999/70/EC (OJ 1999 L 175 p. 43), mean that Community
law (by reason of the application of the said Framework
Agreement) does not allow a Member State to adopt
measures

(a) where an equivalent legal measure within the meaning of
clause 5(1) of the Framework Agreement already existed
under national law before the directive entered into force
and

(b) where the measures adopted in order to apply the Frame-
work Agreement reduce the general level of protection
afforded to fixed-term workers under national law?

legal measure under national

2. If question 1 is answered in the affirmative, where there is an
law, within the
equivalent
meaning of clause 5(1) of the Framework Agreement, which
existed before Directive 1999/70/EC entered into force, such
as Article 8(3) of Law 2112/1920 at issue in the main
proceedings, is the adoption of a legal measure by reason of
the application of the Framework Agreement, such as Article
11 of Presidential Decree 164/2004 at issue in the main
proceedings, an unacceptable reduction in the general level
[of protection] afforded to fixed-term workers under national
law within the meaning of clause 8(1) and (3) of the Frame-
work Agreement:

contracts

(a) when the legal measure in question applying the Frame-
work Agreement was adopted after the time-limit for
transposing Directive 1999/70/EC had elapsed, but only
fixed-term employment
and relationships
which were in effect before its entry into force or had
expired within a certain period before its entry into force
but after the time-limit for transposing the Directive had
elapsed fall within its chronological scope, although the
equivalent legal measure which already existed does not
have a chronologically restricted scope of application and
covers all fixed-term employment contracts which had
been concluded, were in effect or had expired when
Directive 1999/70/EC came into force and the time-limit
for its transposition had elapsed;

C 315/28

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Official Journal of the European Union

22.12.2007

(b) when fixed-term employment contracts or relationships
only fall within the scope of application of the legal
measure in question applying the Framework Agreement
if they can be regarded as successive within the meaning
of that measure, satisfying the cumulative requirements:

tionships and is not
intended specifically to prevent
abuse within the meaning of the Framework Agreement,
and

(i) that there is a maximum period of three months

between them;

(b) that

the legal consequence of

the
earlier equivalent legal measure is that successive fixed-
term contracts of employment are recognised as a
contract of indefinite duration?

the application of

(ii) that they extend for a total of at least 24 months
before the measure in question enters into force, irre-
spective of the number of contract renewals or that,
on the basis of those renewals, there has been a
minimum total period of work of 18 months over
an overall period of 24 months from the original
contract, provided that
three
renewals since the original contract, whereas the
existing equivalent legal measure does not lay down
such conditions but
fixed-term
all
the
(successive) employment contracts,
irrespective of a
minimum total period of work and a minimum
number of contract renewals;

there are at

covers

least

(c) when the legal measure in question applying the Frame-
work Agreement provides as a legal consequence for the
protection of fixed-term workers and the prevention of
abuse, within the meaning of the Framework Agreement
on fixed-term work, for the qualification thereafter (ex
nunc) of fixed-term employment contracts as contracts of
legal
indefinite duration, whereas
measure provides for
fixed-term
contracts as contracts of indefinite duration from the
time they were originally concluded (ex tunc)?

the qualification of

the pre-existing

in interpreting national

4. If all the above questions are answered in the affirmative,
should the national court,
law in
accordance with Directive 1999/70/EC, disapply the provi-
sions of the legal measure which are not compatible with it,
but which were adopted by reason of the application of the
Framework Agreement and result
in a reduction in the
general
level of protection afforded to fixed-term workers
under national law, such as Articles 7 and 11 of Presidential
Decree 164/2004, and apply instead an equivalent
legal
measure which existed before the directive entered into force,
such as Article 8(3) of Law 2112/1920?

5. If the national court finds that — in principle — a provision
legal measure within the
that constitutes an equivalent
meaning of clause 5(1) of the Framework Agreement on
fixed-term work, which is an integral part of Directive
1999/70/EC, is applicable to a dispute over fixed-term work
and, on the basis of that provision, the finding that succes-
sive contracts of employment were concluded as a fixed-term
contract for no objective reason relating to the nature, type
or features of the work offered means that the contracts
must be recognised as a contract of employment of indefinite
duration, then

3. If question 1 is answered in the affirmative, where an equiva-
lent legal measure within the meaning of clause 5(1) of the
Framework Agreement on fixed-term work, which forms an
integral part of Directive 1999/70/EC, already existed in the
national legal order before that directive entered into force,
as in the case of Article 8(3) of Law 2112/1920 at issue in
the main proceedings, is the adoption of a legal measure by
reason of the application of the Framework Agreement, such
as Article 7 of Presidential Decree 164/2004 at issue in the
main proceedings, an unacceptable reduction in the general
level of protection afforded to fixed-term workers under
national law within the meaning of clause 8(1) and (3) of the
Framework Agreement, when that provides, as the sole
means of protection of fixed-term workers from abuse, for
an obligation on the part of the employer to pay wages and
severance pay where workers have wrongfully been
employed under successive fixed-term employment contracts,
bearing in mind

(a) that the obligation to pay wages and severance pay is
provided for under national law for all employment rela-

(a) is it compatible with Community law for a national
court to interpret and apply national law to the effect
that the fact that a legal provision governing employment
under a fixed-term contract of employment in order to
meet seasonal, periodic, temporary or exceptional needs
was used as the legal basis for concluding a fixed-term
contract constitutes an objective reason in all cases for
concluding such contracts, even though the requirements
covered were in fact fixed and permanent, and

(b) is it compatible with Community law for a national
court to interpret and apply national law to the effect
that a provision prohibiting the conversion of fixed-term
contracts of employment in the public sector to contracts
of indefinite duration must be construed as a prohibition
in any circumstance to convert a fixed-term employment
to an
contract or
employment contract or relationship of indefinite dura-
tion, even if it was wrongfully concluded as a fixed-term
contract, although it could be construed to the effect that

relationship in the public sector

22.12.2007

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Official Journal of the European Union

C 315/29

the prohibition in question must be restricted solely to
fixed-term contracts of employment which were in fact
concluded in order to meet temporary, unforeseeable,
urgent or exceptional requirements and not to cases in
which they were in fact concluded in order to meet fixed
and permanent requirements?

Action brought on 24 October 2007 — Commission of the
European Communities v Hellenic Republic

(Case C-470/07)

(2007/C 315/48)

Language of the case: Greek

Action brought on 31 October 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-480/07)

(2007/C 315/49)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Simonsson and R.Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

Parties

Applicant: Commission of the European Communities (repre-
sented by: G Zabbos and N Yerrell, acting as Agents)

— to declare that, by failing to develop, approve and imple-
ment waste reception and handling plans for all its ports,
the Kingdom of Spain has failed to fulfil
its obligations
under Articles 5(1) and 16(1) of Directive 2000/59/EC (1) of
the European Parliament and of the Council of 27 November
2000 on port reception facilities for ship-generated waste
and cargo residues;

Defendant: Hellenic Republic

— to order the Kingdom of Spain to pay the costs.

Form of order sought

— Declare that the Hellenic Republic, by not adopting the laws
and administrative provisions necessary to
regulations
comply with Directive 2004/54/EC (1) of
the European
Parliament and of
the Council of 29 April 2004 on
minimum safety requirements for tunnels in the Trans-Euro-
pean Road Network, and in any event by not communi-
cating such measures to the Commission, has failed to fulfil
its obligations under that directive

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of the directive into
national law expired on 30 April 2006.

Pleas in law and main arguments

It is apparent from a combined reading of Articles 5(1) and
16(1) of Directive 2000/59 that the Kingdom of Spain was
required to adopt, before 28 December 2002, the provisions
necessary to ensure the development and implementation of a
suitable waste reception and handling plan for every Spanish
port.

It is evident from the information supplied up until that date by
the Spanish authorities that waste reception and handling plans
have been developed and implemented for all
the ports of
interest owned by the State and the ports under the
general
jurisdiction of
the Autonomous Community of Galicia. By
such
from that
contrast,
plans have not yet been developed and/or approved in respect
of all
the
remaining coastal autonomous communities, namely, Catalonia,
the Balearics, Valencia, Murcia, Andalusia, the Canaries, Asturias,
Cantabria and the Basque country.

to the jurisdiction of one of

the ports subject

information that

is apparent

it

(1) OJ L 167 of 30.4.2004, p. 39.

(1) OJ 2000 L 332, p. 81.