Case C-469/08: Action brought on 30 October 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-10-30
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, fine, professional qualifications

C 6/14

EN

Official Journal of the European Union

10.1.2009

Questions referred

Action brought on 30 October 2008 — Commission of the
European Communities v French Republic

1. Is Clause 2(6) of Annex 1 to Council Directive 96/34/EC (1)
of 3 June 1996 to be interpreted as meaning that observance
of rights in the process of being acquired extends to a
pension for life on the ground of a person's total and perma-
nent incapacity to perform her usual work, arising during
the period of a year's parental leave taken in the form of a
reduction in the working day and pay, as a result of an occu-
pational disease contracted in carrying out the work she was
employed to perform for the undertaking that gave the
parental leave and revealing itself during that leave period,
having regard to the fact that Social Security covers that
benefit in subrogation to the obligations of the undertaking,
the relationship of compulsory insurance
by reason of
against
the risks of accidents at work and occupational
diseases?

2. If the reply to the first question is affirmative, is that provi-
sion to be interpreted as meaning that the guarantee of
protection which it provides is infringed by a provision of
domestic law that, with the object of fixing the amount of
pension for total permanent invalidity on account of occupa-
tional disease, takes into consideration the pay received by
the worker concerned and the contributions actually made
on the basis of that pay in the 12 months before the opera-
tive event, during the greater part of which the worker made
use of that leave with a reduction in her working day, pay
and contributions, but does not provide any correcting factor
making it possible to ensure that the object of that provision
of Community law is achieved?

3. At all events, and whatever the tenor of the answer to the
foregoing questions, are Clauses 2(8) and 4(2) of Annex I to
that directive to be interpreted as meaning that the obliga-
tions and measures that they prescribe are incompatible with
the application of a rule of calculation such as
that
described?

4. Irrespective of

the replies to the foregoing questions,

is
Article 4(1) of Council Directive 79/7/EEC of 19 December
1978 on the progressive implementation of the principle of
equal treatment for men and women in matters of social
security, in conjunction with Article 5 thereof, to be inter-
preted as meaning that it is contrary to the principle of equal
treatment to apply a calculation formula such as that referred
to, given that, according to the statistics, female workers
form the overwhelming majority of workers availing them-
selves of the form of parental leave described?

(Case C-468/08)

(2009/C 6/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and V. Peere, acting as Agents)

Defendant: French Republic

Form of order sought

— declare that, by failing to adopt, within the prescribed
period, the laws, regulations and administrative provisions
necessary to comply with Directive 2005/36/EC of the Euro-
pean Parliament and of the Council of 7 September 2005
on the recognition of professional qualifications (1) or,
in
any event, by failing to inform the Commission thereof, the
French Republic has failed to fulfil its obligations under that
Directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

the transposition of Directive 2005/36/EC
The period for
expired on 20 October 2007. At the date of bringing this
action, the defendant had not yet taken all the measures neces-
sary to transpose the Directive or,
it had not
informed the Commission of them.

in any event,

(1) OJ 2005 L 255, p. 22.

Action brought on 30 October 2008 — Commission of the
European Communities v Kingdom of Belgium

(Case C-469/08)

(2009/C 6/23)

Language of the case: French

(1) Council Directive 96/34/EC of 3 June 1996 on the framework agree-
ment on parental leave concluded by UNICE, CEEP and the ETUC,
(OJ L 145, 19.6.1996, p. 4).

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and V. Peere, acting as Agents)

Defendant: Kingdom of Belgium

10.1.2009

EN

Official Journal of the European Union

C 6/15

Form of order sought

— declare that, by failing to adopt, within the prescribed
period, the laws, regulations and administrative provisions
necessary to comply with Directive 2005/36/EC of the Euro-
pean Parliament and of the Council of 7 September 2005
on the recognition of professional qualifications (1) or,
in
any event, by failing to inform the Commission thereof, the
Kingdom of Belgium has failed to fulfil its obligations under
that Directive;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

the transposition of Directive 2005/36/EC
The period for
expired on 20 October 2007. At the date of bringing this
action, the Defendant had not yet taken all the measures neces-
sary to transpose the Directive or,
it had not
informed the Commission of them.

in any event,

2. If the answer to Question 1 is in the affirmative: do Regu-
lation No 1782/2003 and Regulation No 795/2004, or the
general principles of Community law, in particular the prin-
ciple of the prohibition of unjustified enrichment, require a
lessor, in the absence of national rules in this respect, to pay
to the lessee compensation for the payment entitlements
transferred to the lessor, and if so, should the lessor compen-
sate the lessee for the full value of those entitlements or for
only a proportion of that value, and, if the latter, for what
proportion?

3. If the answer to Question 1 is in the negative: do Regulation
No 1782/2003 and Regulation No 795/2004, or the general
principles of Community law, in particular the principle of
the prohibition of unjustified enrichment, require a lessee, in
the absence of national rules in this respect, to pay to the
lessor compensation for the payment entitlements retained
by the lessee, and if so, should the lessee compensate the
lessor for the full value of those entitlements or for only a
proportion of that value, and, if the latter, for what propor-
tion?

(1) OJ 2005 L 255, p. 22.

Reference for a preliminary ruling from the Gerechtshof te
lodged on 3 November 2008 —
Arnhem (Netherlands),

K. van Dijk v Gemeente Kampen

(Case C-470/08)

(2009/C 6/24)

Language of the case: Dutch

Referring court

Gerechtshof te Arnhem

Parties to the main proceedings

Appellant: K. van Dijk

Respondent: Gemeente Kampen

Questions referred

1. Do

and

1782/2003 (1)

Regulation No

Regulation
No 795/2004 (2), or the general principles of Community
law, in particular the principle of the prohibition of unjusti-
fied enrichment, require a lessee, in the absence of national
rules in this respect, to deliver the leased land, including the
payment
relating
thereto, to the lessor on the expiry of the lease?

accumulated thereon or

entitlements

(1) Council Regulation (EC) No 1782/2003 of 29 September 2003
establishing common rules for direct support schemes under the
common agricultural policy and establishing certain support
schemes for farmers and amending Regulations (EEC) No 2019/93,
(EC) No 1454/2001,
(EC) No 1453/2001,
(EC) No 1452/2001,
(EC) 1868/94,
(EC)
No 1673/2000,
(EEC) No 2358/71 and (EC) No 2529/2001
(OJ 2003 L 270, p. 1).

(EC) No 1251/1999,

(EC) No 1254/1999,

(2) Commission Regulation (EC) No 795/2004 of 21 April 2004 laying
down detailed rules for the implementation of the single payment
scheme provided for in Council Regulation (EC) No 1782/2003
establishing common rules for direct support schemes under the
common agricultural policy and establishing certain support
schemes for farmers (OJ 2004 L 141, p. 1).

Action brought on 12 November 2008 — Commission of
the European Communities v Kingdom of Belgium

(Case C-490/08)

(2009/C 6/25)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell, acting as Agent)

Defendant: Kingdom of Belgium