Source: EURLEX
Language: en
Format: md

24.11.2001 EN Official Journal of the European Communities C 331/7

**Reference for a preliminary ruling by the Oberster** (Regional Court) Korneuburg of 4 September 2001, which was
**Gerichtshof, Republic of Austria, by order of that court** received at the Court Registry on 11 September 2001, for a
**on 25 June 2001, in the case of Carlito Abler and** preliminary ruling in the case of Pato Plastik Robert Frank
**21 others, intervener: Sanrest Großküchen-Betriebsge-** GmbH v CAROPACK Handelsgesellschaft mbH on the follow**sellschaft mbH against Sodexho MM Catering Gesellschaft** ing questions:

**(Case C-340/01)**
1.1. Are plastic carrier bags ‘packaging’ within the meaning
of European Parliament and the Council Directive
(2001/C 331/10) 94/62/EC 20 December 1994( [1] ), particularly Article 3(1)
thereof,

Reference has been made to the Court of Justice of the (a) if a retailer offers them as an article in the cashEuropean Communities by order of the Oberster Gerichtshof, desk area and hands them over to customers upon
Republic of Austria (Supreme Court) of 25 June 2001, received request against payment so that the purchased
at the Court Registry on 10 September 2001, for a preliminary goods can be taken away, or
ruling in the case of Carlito Abler and 21 others, intervener:
Sanrest Großküchen-Betriebsgesellschaft mbH against Sodexho MM Catering Gesellschaft, on the following question:
(b) if a retailer hands them over to customers for the
same purpose after the price has been paid for the
Is there a transfer of part of a business within the meaning of
purchased goods, regardless whether customers ask
Article 1 of Council Directive 77/187/EEC of 14 February
for them and without obligatory payment of any
1977( [1] ) on the approximation of the laws of the Member
extra charge, and they are then filled with the
States relating to the safeguarding of employees’ rights in the
purchased goods?
event of transfers of undertakings, businesses or parts of
businesses where a hospital authority, which has previously
employed a catering undertaking to supply meals and beverages to patients and hospital staff at a price based on a day of 1.2.1. First additional question, in the event that one of the
catering per person, and to that end has made available to that above questions is answered in the affirmative on the
undertaking water and energy as well as its service premises basis of the German version:
(hospital kitchen) together with the necessary equipment,
transfers, after giving notice of termination of that contract,
those operations and the assets previously made available to Is the result different if, for the definition of the word
that first catering undertaking to a second catering undertaking ‘packaging’ in Article 3(1) of the Directive, not the
which does not take over the assets (staff, stock, accounting German text, which only has the words ‘von Waren’,
material and menu, diet, recipe or general records) brought in but the French or Italian text [Or. 2] is deemed decisive,
by the first catering undertaking itself? which both refer to specific goods (‘marchandises
données’ and ‘determinate merci’), and are the plastic
carrier bags made by the plaintiff in this case not
( [1] ) OJ 1997 L 61, p. 26. packaging for the purposes of the Directive because
they are filled with any goods at all (rather than with
predetermined goods), and in this case which text
applies?

1.2.2. Second additional question, in the event that one of
the above questions is answered in the negative:
**Reference for a preliminary ruling, by order of the**
**Landesgericht Korneuburg of 4 September 2001 in the**
**case of Pato Plastik Robert Frank GmbH v CAROPACK** May the Austrian legislature or the Commission make
**Handelsgesellschaft mbH** products which are not packaging under the Directive
subject to the rules governing packaging laid down in
the Directive or to similar rules?
**(Case C-341/01)**

(2001/C 331/11) 2. Is it in conformity with Community law for the operator
of the collection and recovery system set up in Austria to
charge a fee (Lizengebühr) even for carrier bags not
covered by Directive 94/62/EC solely on the ground that
Reference has been made to the Court of Justice of the the bags bear a mark (‘der Grüne Punkt’) over which the
European Communities by order of the Landesgericht operator disposes?

C 331/8 EN Official Journal of the European Communities 24.11.2001

3.1. Is a ‘producer’, within the meaning of Article 3(1) of the Directive, is ‘essential’, because everything marked with
Directive, only someone who brings goods into contact the ‘Grüner Punkt’ symbol is mixed together and, above
with the product used as packaging or has them brought all, takes away from consumers the right, granted and
into contact, and not also an undertaking which makes guaranteed to consumers by the Sixth VAT Directive, to
a product intended for use as packaging, and is this a VAT rate reduced by half or a lower rate for the disposal
product then to be regarded as packaging material? of their household waste?

7. May the Austrian Packaging Regulation arrange the
collection and recovery systems required by Article 7(1)of
3.2. Additional question, in the event that the preceding the Directive in such a way that a monopolist or an
oligopolist can have power of disposal over all packaging
question is answered in the affirmative: May the Austrian
waste to be recycled into raw materials and so, by
legislature or the Commission compel traders who
providing subsidies to particular businesses, to particular
merely make packaging material, that is to say a product
branches of industry (for example the cement industry)
which is intended to be filled with goods, to participate
or to certain local authorities (for example, the City of
in a collection and recovery system set up pursuant to
Vienna), can control and subsidise the recycling of
Article 7(1) of Directive 94/62/EC?
waste as it wishes, thereby producing distortions of
competition, or is such a system contrary to Community
law, in particular Article 30 et. seq. and especially
Article 37 EC?
4. Is it contrary to the ‘polluter pays’ principle referred to in
the preamble to Directive 94/62/EC for a law to provide,
as does the first sentence of Paragraph 3(1) of the ( [1] ) OJ 1994 L 365, p. 10.
Austrian Verpackungsverordnung (Austrian Packaging
Regulation), that producers, in particular producers of
packaging material (see paragraph 3(1) in conjunction
with paragraph 1(1) of the Austrian Packaging Regulation), importers, packagers and distributors must take
back free of charge sales and transport packaging after
they have been used, in that the group of persons affected
by this obligation is defined too narrowly and does not **Action brought on 13 September 2001 by the Com-**
include consumers, and/or does such a regulation conflict **mission of the European Communities against the Repub-**
with Article 1(1) of the Directive in so far as it is stated **lic of Austria**
there that the Directive’s aim is to avoid obstacles to
trade, whereas an obligation for a producer to take back
**(Case C-345/01)**
packaging materials is the greatest imaginable obstacle to
trade?
(2001/C 331/12)

5. Does a collection and recovery system such as that
An action against the Republic of Austria was brought
operated in Austria by Altstoff Recycling Austria Aktienbefore the Court of Justice of the European Communities on
gesellschaft pursuant to paragraph 11 of the Austrian
13 September 2001 by the Commission of the European
Packaging Regulation [Or. 3] conflict with the principle
Communities represented by Götz zur Hausen, a legal adviser
of proportionality if it is disproportionate to the needs of
in the legal Service of the Commission of the European
effective environmetal protection?
Communities, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, a member of the Legal
Service of the European Commission, Wagner Centre C 254,
Kirchberg, Luxembourg.
6. Is it contrary to the principles laid down in Article 30 et
seq., in particular Article 37 EC, for a Member State to set
The applicant claims that the Court should:
up, in implementation of Article 7 of the Directive, as has
happened in Austria pursuant to paragraph 11 of the
Austrian Packaging Regulation, a collection and recovery 1. Declare that, by failing to adopt the laws, regulations
system occupying a monopoly position (in Austria, and administrative provisions necessary to comply with
Altstoffrecycling Austria Aktiengesellschaft) so that com- Council Directive 98/81/EC of 26 October 1998( [1] )
petition and the fundamental freedoms are dispro- amending Directive 90/219/EEC( [2] ) on the contained use
portionately and excessively restricted, this interference is of genetically modified micro-organisms, or at least by
out of proportion to any effective contribution towards failing to communicate them to the Commission, the
increasing the level of environmental protection and Republic of Austria has failed to fulfil its obligations
moreover this system, set up in parallel with the munici- under Article 2(1) of that Directive.
pal system, is not compatible with the objective of sorting
waste at source, which, according to the preamble to the 2. Order the Republic of Austria to pay the costs.