CELEX: C1995/189/12
Language: en
Date: 1995-07-22 00:00:00
Title: Reference for a preliminary ruling from the Østre Landsret by decision of that court of 10 April 1995 in the case of Bent Jensen and Korn- og Foderstofkompagniet A/S v. Ministry of Agriculture EC-Directorate (Case C-132/95)

No C 189/6                EN                  Official Journal of the European Communities                                      22 . 7 . 95
Appeal brought on 24 March 1995 by 1 . Roger Tremblay,                   Reference for a preliminary ruling from the 0stre Landsret
2 . Harry Kestenberg and 3 . Syndicat des Exploitants de                 by decision of that court of 10 April 1995 in the case of Bent
Lieux de Loisirs ( SELL ) against the judgment delivered on              Jensen and Korn- og Foderstofkompagniet A/S v. Ministry
24 January 1995 by the Second Chamber of the Court of                                     of Agriculture EC-Directorate
First Instance of the European Communities in Case T-5/93                                         (Case C- 1 3 2/95 )
between Roger Tremblay, François Lucazeau and Harry
                                                                                                    ( 95/C 189/12 )
Kestenberg, supported by Syndicat des Exploitants de Lieux
de Loisirs ( SELL), and Commission of the European
                               Communities
                                                                         Reference has been made to the Court of Justice of the
                           ( Case C-91/95 P)                             European Communities by a decision of the 0stre Landsret
                              ( 95/C 189/11 )                            ( Eastern Regional Court) of 10 April 1995 , which was
                                                                         received at the Court Registry on 24 April 1995 , for a
                                                                         preliminary ruling in the case of Bent Jensen and Korn­
An appeal against the judgment delivered on 24 January
                                                                         og Foderstofkompagniet A/S v. Ministry of Agriculture
1995 by the Second Chamber of the Court of First Instance
                                                                         EC-Directorate on the following questions :
of the European Communities in Case T-5/93 between
Roger Tremblay, François Lucazeau and Harry Kestenberg,
supported by Syndicat des Exploitants de Lieux de Loisirs                — Question 1 :
( SELL ), and Commission of the European Communities
was brought before the Court of Justice on 24 March 1995
by 1 . Roger Tremblay, 2 . Harry Kestenberg and 3 . Syndicat                 Does Community law in general preclude a Member
                                                                             State from setting off of an amount due to the
des Exploitants de Lieux de Loisirs ( SELL), represented by
Claude Fourgoux, of the Paris and Brussels Bar, with an                      beneficiary of aid under a Community measure against
                                                                             outstanding debts to a Member State ?
address for service in Luxembourg at the Chambers of
Pierrot Schiltz, 4 Rue Béatrix de Bourbon.
                                                                         — Question 2a :
The appellant claims that the Court should :
                                                                             Is it of any significance for the answer to question 1
 1 , annul the part of the judgment of the Court of First                    whether the amount of aid under Community law is
       Instance of 24 January 1995 which dismissed the                       attached in advance by the Member State which has only
       application for the annulment of the Commission                       a claim to be reimbursed for the aid paid out, provided
       decision of 12 November 1992, which referred the
                                                                             that the rules of Community law on payment are
       matter back to the national courts f 1 );
                                                                             satisfied, and which must itself defray the expenditure
                                                                             involved in the administration of the support system ?
2 , pursuant to Article 54 of the Statute of the Court of
       Justice ,
                                                                          — Question 2b :
       — annul the Commission decision of 12 December
           1994 in so far as it rejects the complaint and refers             Is it of any significance for the answer to question 1 that
           the matter to the national courts ,                                under the Member State's rules on set-off it is a
                                                                             condition for effecting set-off that there be reciprocity
       — hold :                                                               between the debtor under the principal claim and the
                                                                             creditor under the counterclaim ?
           — that the Commission must notify to Sacem the
                 objections which are inexorably to be inferred           — Question 2c :
                 from the conclusions of the report of
                 7 November 1991 ,
                                                                              Is it of any significance for the answer to question 1 that
                                                                              the Member State's practice with regard to certain trade
           — in the alternative, that the Commission must                     and environmental subsidies is established in such a way
                 resume the procedure at the point at which it                as to permit set-off in an amount not exceeding 20 % of
                 discontinued it, with a view to issuing a                    the said State subsidies ?
                 statement of objections at the same time as
                 considering the restrictive agremeent;
                                                                          — Question 2d :
 3 , order the Commission to pay the costs .
                                                                              Is it of any significance for the answer to question 1 what
 Pleas in law and main arguments adduced in support:                          legal basis exists for the outstanding debt to the State
                                                                              against which set-off is to be effected ?
 Breach of Community law.
                                                                              An answer is desired in particular to the question
 i 1 ) Case T-5/93 ( OJ No C 74 , 25 . 3 . 199 5 , p . 10 ).                  whether the Member States have a further facility to
                                                                              effect set-off if all or part of the sum to be set off
                                                                              constitutes part of the Community's own income ?
 ---pagebreak---  22 . 7. 95                EN                 Official Journal of the European Communities                                     No C 189/7
— Question 3 :                                                           Appeal brought on 27 April 1995 by Vereniging
                                                                         van Samenwerkende Prijsregelende Organisaties in de
       If questions 1 and 2a to 2d are answered to the effect that       Bouwnijverheid ( SPO ) and 28 others against the judgment
       set-off is in general possible, or possible subject to            delivered on 21 February 1995 by the Court of First Instance
       certain conditions , is Article 15 ( 3 ) of Council               of the European Communities in Case T-29/92 between
       Regulation ( EEC ) No 1765/92 of 30 June 1992                     Vereniging van Samenwerkende Prijsregelende Organisaties
       establishing a support system for producers of certain            in de Bouwnijverheid ( SPO ) and 28 others and the
       arable crops (*) to be interpreted as meaning that a                        Commission of the European Communities
       Member State is precluded from requiring a national                                        Case C-137/95 P )
       intervention agency to effect set-off in the case of a
       beneficiary of compensatory payments with outstanding                                        ( 95/C 189/14
       debts to the State which could otherwise be involved in
       set-off ?                                                         An appeal against the judgment delivered on 21 February
                                                                         1 995 by the Court of First Instance of the European
                                                                         Communities in Case T-29/92 between Vereniging van
— Question 4 :
                                                                         Samenwerkende Prijsregelende Organisaties in de
       Is Article 10 ( 1 ) of Regulation ( EEC ) No 1765/92 to be        Bouwnijverheid ( SPO ) and 28 others and the Commission
       interpreted as meaning that the sums of compensation              of the European Communities was brought before the
       in question are to be paid over immediately the                   Court of Justice of the European Communities on 27 April
       intervention agency has concluded the procedure                   1995 by Vereniging van Samenwerkende Prijsregelende
       with regard to the beneficiary's application, or is it            Organisaties in de Bouwnijverheid ( SPO ) and 28 others ,
       permissible to delay the payment for an investigation as          represented by L. H. van Lennep, of The Hague Bar, and
       to whether the State has outstanding claims against the           E. H. Pijnacker Hordijk, of the Amsterdam Bar, with an
       beneficiary in respect of which it wishes to effect a             address for service in Luxembourg at the Chambers of L.
       set-off, provided always that the payment is effected at          Frieden, 62 Avenue Guillaume .
       the latest by 31 December of the relevant support                 The appellants claim that the Court should :
       year ?
                                                                         — set aside the judgment of the Court of First Instance of
 f 1 ) OJ No L 181 , 1 . 7 . 1992 , p . 12 .                                 the European Communities of 21 February 1995 in Case
                                                                             T-29/92 ( l ),
                                                                         — annul, wholly or at least in part, Commission Decision
                                                                             92/204/EEC of 5 February 1992 relating to a proceeding
                                                                             pursuant to Article 85 of the EC Treaty ( IV/31.572 and
Reference for a preliminary ruling from the Cour de                          32.571 — Building and construction industry in the
Cassation Française ( Chambre Sociale ) by judgment of                       Netherlands ),
28 March 1995 in the case of Caisse Nationale d'Assurance
Vieillesse des Travailleurs Salariés ( CNAVTS ) v. Evelyne              — order the Commission to pay the costs of the
                                 Thibault                                    proceedings before the Court of First Instance and of
                            ( Case C-136/95 )
                                                                             the appeal .
                               95/C 189/ 13 )                            Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
                                                                        — Infringement and/or misapplication of Articles 85 ( 3 ),
                                                                             173 and/or 190 of the EC Treaty and/or of Article 9 ( 1 )
European Communities by a judgment of the Cour de
                                                                             of Regulation No 17/62 , and in any event of the general
Cassation Française ( Chambre Sociale ) ( French Court of
                                                                             principles of Community law requiring reasons to be
Cassation, Social Affairs Chamber ) of 28 March 1995 ,
                                                                             given for (judicial ) decisions, alternatively of the right to
which was received at the Court Registry on 28 April 1995 ,
                                                                             a fair hearing, in that the Court of First Instance wrongly
for a preliminary ruling in the case of Caisse Nationale                     considered and decided the matters stated and set forth
d'Assurance Vieillesse des Travailleurs Salariés ( CNAVTS )
                                                                             in paragraphs 266 , 267, 286 to 300 inclusive and 310 to
v. Evelyne Thibault on the following question:
                                                                             314 inclusive of its contested judgment, since, in thus
                                                                             considering and ruling on the case in the course of its
Must Articles 1 ( 1 ), 2 ( 1 ), 5 ( 1 ) and, if relevant, 2 (4 ) of          review of the evaluation by the Commission of the
Council Directive 76/207/EEC of 9 February 1976 on the                       appellants ' application for exemption, the Court of First
implementation of the principle of equal treatment for men                   Instance :
and women as regards access to employment, vocational
training and promotion, and working conditions ( ! ) be                      ( a ) limited its review of the legality of the decision of the
interpreted as meaning that a woman may not be deprived                            Commission to the Commission's appraisal of the
of the right to an assessment of performance, and                                  rules in the light of the second and third conditions
consequently to the possibility of an advancement in career,                       of exemption contained in Article 85 ( 3 ) of the EC
on the ground that she was absent from work by reason of                           Treaty, without establishing the benefits and
maternity leave ?                                                                  objectives of those rules, and consequently without
                                                                                   determining the relevant facts needing to be
H OJ No L 39 , 14 . 2 . 1976 , p . 40 .                                            established for the purposes of an assessment in the
                                                                                   light of the second and third conditions contained in
                                                                                   Article 85 ( 3 ) of the EC Treaty;