CELEX: C1996/269/40
Language: en
Date: 1996-09-14 00:00:00
Title: Reference for a preliminary ruling from the Sozialgericht Aachen - 13th Chamber - by order of that court of 24 July 1996 in the case of Sema Sürül v. Bundesanstalt für Arbeit, Nürnberg (Case C-262/96)

14. 9 . 96         I EN 1                Official Journal of the European Communities                                  No C 269/ 19
and C. Impens and the Council of the European Union was             — Absence of the conditions necessary in law for liability to
brought before the Court of Justice of the European                      arise and, in the alternative, breach of the principle of
Communities on 23 July 1996 by the Council of the                        proportionality.
European Union , represented by Jean-Paul Jacqué, Diego
Canga Fano and Therese Blanchet, with an address for                (') Case C-412/92 P Parliament v . Meskens [ 1994 ] ECR I ,
service in Luxembourg at the offices of B. Eynard, European              p . 3757 .
Investment Bank .
The appellant claims that the Court should :
— annul the judgment given by the Court of First Instance           Reference for a preliminary ruling by the Corte d'Appello
                                                                    ( Sezione Prima Civile ), Venice, by order of that court of
    on 26 June 1996 in Case T-91 /95 de Nil and Impens v.
                                                                    9 May 1996, in the case of Conserchimica SRL v.
    Council of the European Union,                                             Amministrazione delle Finanze dello Stato
— give judgment upholding the claims put forward by the                                       Case C-261 /96 )
    Council at first instance, that is to say :                                                ( 96/C 269/39 )
    — dismiss the application and the claims for                    Reference has been made to the Court of Justice of the
        compensation therein ,                                      European Communities by order of the Corte d'Appello
                                                                    ( Sezione Prima Civile ) ( Court of Appeal, first Civil
    — order the applicants before the Court of First                Division ), Venice, of 9 May 1 996, which was received at the
        Instance to pay the costs of those proceedings,             Court Registry on 24 July 1996 , for a preliminary ruling in
                                                                    the case of Conserchimica SRL v. Amministrazione delle
— make an appropriate order as regards the costs before             Finanze dello Stato on the following question :
    the Court of Justice.
                                                                    Does Article 2 of Council Regulation ( EEC ) No 1 697/79 ( 1 )
                                                                    of 24 July 1 979 , which prescribes a three-year period for the
Pleas in law and main arguments adduced in support:                 recovery of duties not collected , also apply to situations
                                                                    where the conditions were satisfied before 1 July 1980, the
— Infringement of Article 176 of the EC Treaty : the                date on which that Regulation entered into force pursuant
    approach adopted by the Court of First Instance,                to Article 11 thereof ?
    consisting, on the one hand, in noting that the
    Community judicature may not determine the measures             (M OJ No L 197, 3 . 8 . 1979 , p . 1 .
    required to comply with a judgment and, on the other
    hand , in specifying after the event the measures that it
    considers the Council could have provided for, is
    contradictory in law . That approach affectively negates
    the case-law on the institutions ' discretion to determine
    the measures necessary to comply with a judgment.               Reference for a preliminary ruling from the Sozialgericht
                                                                    Aachen — 13th Chamber — by order of that court of
                                                                    24 July 1996 in the case of Sema Sürül v. Bundesanstalt für
— Infringement of Article 30 of the Staff Regulations : the
    Council organized a new competition, B/228a , in                                         Arbeit, Nürnberg
    accordance with the solution suggested in the judgment                                   ( Case C-262/96 )
    in Parliament v. Meskens ('), and the Court of First                                        ( 96/C 269/40 )
    Instance commits an error of law when it regards
    Competition B/228a as re-opening Competition                     Reference has been made to the Court of Justice of the
    B/228 .
                                                                     European Communities by order of the Thirteenth
                                                                     Chamber of the Sozialgericht ( Social Court ) Aachen of
— Breach of the principle of equal treatment: reclassifying          24 July 1996 , which was received at the Court Registry on
    the successful candidates in Competition B/228a with             26 July 1996 , for a preliminary ruling in the case of Sema
    effect from the same date as those in Competition B/228 ,        Sürül v. Bundesanstalt für Arbeit Nürnberg ( Federal
    as required by the contested judgment, would amount to           Employment Office, Nuremberg ) on the following
    treating different situations in an identical manner .           questions :
— Infringement       of   Article  45     (2)   of   the  Staff      1 . Does a Turkish national living in Germany who comes
    Regulations .                                                         within the personal scope of Article 2 of Decision
                                                                          No 3/80 of 19 September 1980 of the Association
— Infringement of Article 48 ( 2 ) of the Rules of Procedure :            Council set up pursuant to the Agreement establishing
    the Court of First Instance committed an error of law as              an Association between the European Economic
    regards the subsequent promotions of the successful                   Community and Turkey (' Decision No 3/80 '), and who
    candidates in Competiton B/228 , in that it based its                 possesses merely an Aufenthaltsbewilligung, have the
    judgment on the factual position on the date when the                 right, deriving directly from Article 3 in conjunction
    judgment was given instead of the date when the                       with Article 4 ( 1 ) ( h ) of Decision No 3/80 , to German
    application was made .                                                child benefit, in such a way that that right is conditional
 ---pagebreak--- No C 269/20           EN                   Official Journal of the European Communities                                        14 . 9 . 96
    solely on fulfilment of the conditions applying with                  administrative provisions of the Member States relating
    regard to German nationals and not on fulfilment of the               to construction projects ( 1 ), the Kingdom of Belgium has
    further conditions applying to aliens which are laid                  failed to fulfil its obligations under that Directive;
    down in the first sentence of paragraph 1 ( 3 ) of the
    Bundeskindergeldgesetz ('BKGG') in the version thereof            2 . order the Kingdom of Belgium to pay the costs .
    published in the Official Notice of 31 January 1994
    ( BGB1 . I, p. 168 )?                                             The time limit for transposition expired on 27 June
                                                                      1991 .
    Or, to phrase that question in more general terms :
                                                                      (>) OJ No L 40 , 11 . 2 . 1989 , p . 12 .
    Is a Member State prohibited from refusing a Turkish
    national who comes within the personal scope of
    Article 2 of Decision No 3/80 family benefits provided
    for under its law on the ground that that person does
    not possess an Aufenthaltsberecbtigung or an                      Reference for a preliminary ruling by the House of Lords, by
    Aufenthaltserlaubnis ?                                            order of that court of 24 July 1996 , in the case of Imperial
                                                                      Chemical Industries pic against Colmer ( Her Majesty's
2 . Is a Turkish national residing in the territory of a                                       Inspector of Taxes )
    Member State a worker within the meaning of Article 2                                        ( Case C-264/96 )
    in conjunction with Article 1 ( b ) of Decision No 3/80                                        ( 96/C 269/42 )
    during periods when, pursuant to the law of that State,
    compulsory contributions to the social security pension           Reference has been made to the Court of Justice of the
    scheme are deemed, in favour of that person , to have             European Communities by an order of the House of Lords
    been paid in respect of time spent in bringing up a               of 24 July 1996 , which was received at the Court Registry on
    child ?
                                                                      29 July 1 996 , for a preliminary ruling in the case of Imperial
                                                                      Chemical Industries pic against Colmer ( Her Majesty 's
3 . Is a Turkish national residing in the territory of a              Inspector of Taxes ), on the following questions :
    Member State who, in addition to following a course of
    studies, is employed there on the basis of a                      1.  In a situation where :
    corresponding Aufenthaltserlaubnis for up to 16 hours
    per week as an occasional worker to be regarded on that                   ( i ) a company ( company A ) is resident in a Member
    ground alone as a worker within the meaning of                                  State of the European Union;
    Article 2 in conjunction with Article 1 ( b ) of Decision
    No 3/80, or in any event because that person is insured                 ( ii ) company A is part of a consortium with another
    under a statutory accident insurance scheme against                             company ( company B ) also resident in that
    accidents at work ?                                                             Member State;
                                                                          ( iii ) companies A and B jointly own a holding company
                                                                                    ( company C ) also resident in the Member State ;
                                                                          ( iv ) company C has a number of trading subsidiaries ,
                                                                                    which are resident either in that Member State,
                                                                                    other Member States of the European Union or
Action brought on 26 July 1996 by the Commission of the                             elsewhere in the world ; and
 European Communities against the Kingdom of Belgium
                        ( Case C-263 /96                                    ( v ) company A is precluded from being entitled to
                          ( 96/C 269/41 )                                           claim against its corporation tax liability relief in
                                                                                    respect of trading losses incurred by a trading
                                                                                    subsidiary ( also resident in that Member State ) of
An action against the Kingdom of Belgium was brought                                company C because the national legislation ,
before the Court of Justice of the European Communities on                          construed as a matter of national law, required
26 July 1996 by the Commission of the European                                      that the business of company C should consist
Communities, represented by Hendrik van Lier, Legal                                 wholly or mainly in the holding of shares in
Adviser in the Commission, acting as Agent, with an address                         subsidiaries which are resident in that Member
for service in Luxembourg at the office of C. Gomez de la                           State .
Cruz, of the Legal Service of the Commission of the
European Communities, Wagner Centre, Kirchberg .                      Does the requirement identified at ( v ) constitute a restriction
                                                                      on the freedom of establishment under Article 52 of the EC
                                                                      Treaty ? If so, is such treatment nevertheless justified under
The applicant claims that the Court should :                          Community law ?
1 . declare that, by failing to adopt the laws, regulations and       2 . If the requirement under ( v ) is an unjustified restriction
    administrative measures necessary in order to comply                  under Community law, does Article 5 of the EC Treaty
    with Council Directive 89/ 106/EEC of 21 December                     require a national court to interpret the relevant
    1988 on the approximation of laws , regulations and                   national legislation, so far as is possible, so as to comply