Case C-44/08: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 8 February 2008 — Akavan Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens Computers Oy
Date: 2008-02-08
Institutions: Court of Justice
Subjects: collective dismissal, interpretation of the law, parent company, subsidiary, worker consultation, worker information

26.4.2008

EN

Official Journal of the European Union

C 107/13

3. If the answer is ‘yes’, is the national court required to take
account of
the prohibition of discrimination having the
effect of distorting competition when interpreting and
applying Article 3 of Directive 89/104 if it has established
discrimination of that nature?

4. If Questions 1 to 3 are answered in the negative, in order to
prevent distortion of competition, must it be possible under
national legislation for the national authority to be placed
under an obligation to initiate, of its own motion, an action
for the annulment of trade marks which have previously
been wrongly registered?

(1) OJ 1989 L 40, p. 1.

Reference for a preliminary ruling from the Korkein
oikeus (Finland) lodged on 8 February 2008 — Akavan
Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens
Computers Oy

(Case C-44/08)

(2008/C 107/20)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicants: Akavan Erityisalojen Keskusliitto AEK ry, Erityisalojen
Toimihenkilöliitto ERTO ry, Uusi Insinööriliitto UIL ry (formerly
Insinööriliitto IL ry), Metallityöväen Liitto ry, Palvelualojen
Ammattiliitto PAM ry, Suomen Ekonomiliitto — Finlands
Ekonomförbund SEFE ry, Ammattiliitto SUORA ry Suomen
Valtiotieteilijöitten Liitto SVAL ry — Statsvetarnas Förbund i
Finland rf, Sähköalojen Ammattiliitto ry, Tekniikan Akatee-
misten Liitto TEK ry, Toimihenkilöunioni TU ry

Defendant: Fujitsu Siemens Computers Oy

cies’ of employees and ‘in good time’ requires consultations
to be started when it is established from strategic decisions
or changes that have been made relating to the activity that a
need for collective redundancies of employees follows? Or is
the provision in question to be interpreted as meaning that
the obligation to start consultations already arises on the
basis of the employer contemplating measures or changes
affecting the activity, such as a change in production capacity
or a concentration of production, as a consequence of which
a need for collective redundancies is to be expected?

2. Having regard to the fact that

the first subparagraph of
Article 2(3) of the directive refers to the supply of informa-
tion in good time during the course of the consultations, is
Article 2(1) of the directive to be interpreted as meaning that
the obligation under that provision to start consultations
when ‘contemplating’ collective redundancies and ‘in good
time’ requires consultations to be started already before the
employer's intentions have reached the stage at which the
employer is required to identify and supply to the employees
the information specified in Article 2(3)(b)?

3. Is Article 2(1) in conjunction with Article 2(4) of the direc-
tive to be interpreted as meaning that,
in a situation in
which the employer is controlled by another undertaking,
the employer's obligation to start consultations with the
representatives of the employees originates when either the
employer or the parent company controlling the employer
contemplates action for collective redundancies of employees
in the employer's service?

4. In the case of consultations to be carried on in a subsidiary
belonging to a group, and in assessing in the light of the
provisions of Article 2(4) of
the directive the obligation
under Article 2(1) to enter into consultations when ‘contem-
plating’ collective redundancies and ‘in good time’, does the
obligation to start consultations already arise when the
management of the group or the parent company contem-
plates collective redundancies but that intention has not yet
taken concrete form as concerning the employees in the
service of a particular subsidiary under its control, or does
the obligation to embark on consultations within the
subsidiary arise only at the stage when the management of
the group or the parent company contemplates collective
redundancies specifically in that subsidiary company?

Questions referred

1. Is Article 2(1) of Directive 98/59/EC (1) to be interpreted as
meaning that the obligation under that provision to embark
on consultations when ‘contemplating collective redundan-

5. If the employer is an undertaking (a subsidiary belonging to
a group) controlled within the meaning of Article 2(4) of the
directive by another undertaking (parent company or group
management), is Article 2 of the directive to be interpreted
as meaning that the consultation procedure referred to there
must be concluded before the decision on collective redun-
dancies to be implemented in the subsidiary company is
taken within the parent company or the group management?

C 107/14

EN

Official Journal of the European Union

26.4.2008

6. If the directive is to be interpreted in such a way that the
consultation procedure to be carried on within the subsidiary
company must be concluded before the decision giving rise
to collective redundancies of employees is taken within the
parent company or group management, is it only a decision
whose direct consequence is the implementation of collective
redundancies in the subsidiary company that is relevant in
that connection, or must
the consultation procedure be
brought to a conclusion already before a commercial or stra-
tegic decision is taken within the parent company or the
group management on the basis of which collective redun-
dancies in the subsidiary company are probable but not yet
finally certain?

Member States to interpret measures as they wish, or do
they, in their entirety, concern a minimum of harmonisation?

the mere fact

2. Should Article 2(1) of the Market Abuse Directive be inter-
preted as meaning that
that a person as
referred to in Article 2(1) of that directive possesses inside
information and acquires or disposes of, or tries to acquire
or dispose of, for his own account or for the account of a
third party, financial instruments to which that inside infor-
mation relates, signifies in itself that he makes use of his
inside information?

(1) Council directive 98/59/EC of 20 July 1998 on the approximation of
the laws of the Member States relating to collective redundancies
(OJ 1998 L 225, p. 16).

3. If the answer to the second question is negative, must it then
be assumed that the application of Article 2 of the Market
Abuse Directive presupposes that a deliberate decision has
been taken to use inside information?

If such a decision may also be unwritten, is it then required
that the decision to use inside information is evident from
circumstances susceptible to no other interpretation, or is it
sufficient that those circumstances could be so interpreted?

4. If in the determination of the proportionate nature of an
administrative sanction, as referred to in Article 14 of the
Market Abuse Directive, account must be taken of the gains
realised, should it be assumed that the publication of infor-
mation to be designated as inside information has indeed
had a significant effect on the price of the financial instru-
ment?

If so, what minimum level of price movement must have
occurred for it to be possible to regard it as significant?

5. Whether or not the price movement after the publication of
information must be significant, what period should be
taken into account after the publication of the information
for the determination of the scale of the price movement,
and what date should be taken as the basis for gauging the
financial advantage gained in the determination of the appro-
priate sanction?

the sanction, should Article 14 of

6. In the light of the determination of the proportionate nature
of
the Market Abuse
Directive be interpreted as meaning that, if a Member State
has introduced the option of a criminal sanction, combined
with an administrative sanction, account must be taken of
the option and level of a criminal financial penalty in the
consideration of its proportionality?

(1) Directive 2003/6/EC of the European Parliament and of the Council
of 28 January 2003 on insider dealing and market manipulation
(market abuse) (OJ 2003 L 96, p. 16).

Reference for a preliminary ruling from the Hof van
beroep te Brussel, Belgium lodged on 8 February 2008 —
Spector Photo Group NV and Chris Van Raemdonck v
Commissie voor het Bank-, Financie- en Assurantiewezen
(CBFA)

(Case C-45/08)

(2008/C 107/21)

Language of the case: Dutch

Referring court

Hof van beroep te Brussel, Belgium

Parties to the main proceedings

Applicants: Spector Photo Group NV and Chris Van Raemdonck

Defendant: Commissie voor het Bank-, Financie- en Assurantie-
wezen (CBFA)

Questions referred

1. Do the provisions of the Market Abuse Directive (1), and
especially Article 2 thereof, call for full harmonisation, with
the exception of those provisions which explicitly permit the