CELEX: C2000/192/17
Language: en
Date: 2000-07-08 00:00:00
Title: Case C-164/00: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division, by order of that court of 1 March 2000, in the case of Katia Beckman against Dynamco Whicheloe Macfarlane Ltd

8.7.2000                EN                   Official Journal of the European Communities                                          C 192/9
1. As not precluding a legislative provision of the host                The applicant claims that the Court should:
    Member State pursuant to which employees of the credit
    institution concerned are required to give evidence as              (1) declare that, by failing to adopt all the measures necessary
    witnesses in criminal proceedings concerning services pro-              in order to comply with the obligations laid down in
    vided by them, under the freedom to provide services, in                Article 5(4)(a) and point 2 in Annex III to Council Directive
    the territory of the host Member State in circumstances in              91/676/EEC (1) of 12 December 1991 concerning the
    which employees of credit institutions of the host Member               protection of waters against pollution caused by nitrates
    State are under a like obligation to give evidence as                   from agricultural sources, the Federal Republic of Germany
    witnesses;                                                              has failed to fulfil its obligations under that directive;
2. As not precluding a legislative provision of the host                (2) order the Federal Republic of Germany to pay the costs.
    Member State pursuant to which employees of the credit
    institution concerned who, when interviewed as suspects,
    choose not to rely on their right to remain silent, may             Pleas in law and main arguments
    as suspects make a statement in criminal proceedings
    concerning services provided by them, under the freedom             Article 5(1) of Directive 91/676/EEC prescribes, in conjunction
    to provide services, in the territory of the host Member            with Annex III, maximum amounts, for each farm or livestock
    State in circumstances in which employees of credit                 unit, of manure to be applied to the land per hectare and per
    institutions established in the host Member State have the          year. Under the German provisions (Paragraphs 2(1) and 4(5)
    same right to make a statement as suspects, where they do           of the Düngeverordnung (Manure Regulation)), regard may be
    not or do not wish to rely on their right to remain silent;         had, within specified parameters, to ‘unavoidable production
                                                                        losses’ in the case of farm manure originating from animals
3. As precluding a legislative provision of the Member State            and to ‘storage losses’ in the case of liquid manure and slurry.
    of origin pursuant to which employees of the credit                 As a result, between 10 % and 20 % of the total quantities of
    institution concerned may be rendered criminally and                nitrogen are regarded as ‘normal’ losses arising from volatisa-
    civilly liable if, in the context of a criminal investigation       tion, and no regard is had to the fact that, to a large extent,
    conducted in a host Member State (see points 1 and 2) (in           those quantities of nitrogen escape into the air and then settle
    this case Belgium), they give evidence concerning services          once again on the ground and on expanses of water, thereby
    provided by them in the territory of the host Member State          contributing to water pollution.
    under the freedom to provide services;
                                                                        The maximum quantities laid down in the directive must apply
4. As precluding a legislative provision of the Member State            uniformly throughout the Community. Following discussions,
    of origin pursuant to which employees of the credit                 the Commission once again referred the question of interpret-
    institution concerned may be rendered criminally and                ation to the committee provided for in Article 9 of the
    civilly liable if, in the context of a criminal investigation       directive, and confirmed in written communications to the
    conducted in a host Member State (see points 1 and 2) (in           Federal Republic of Germany, Austria and Luxembourg that
    this case Belgium), they make a statement as suspects               the quantities specified in point 2 of Annex III to the directive
    concerning services provided by them in the territory of            are to be regarded as quantities of manure ex storage.
    the host Member State (in this case Belgium) under the
    freedom to provide services, whilst at the same time not
    relying or not wishing to rely on the right to remain silent?       (1) OJ L 375 of 31.12.1991, p. 1.
                                                                        Reference for a preliminary ruling by the High Court of
Action brought on 27 April 2000 by the Commission of                    Justice (England & Wales), Queen’s Bench Division, by
the European Communities against the Federal Republic                   order of that court of 1 March 2000, in the case of Katia
                            of Germany                                     Beckman against Dynamco Whicheloe Macfarlane Ltd
                          (Case C-161/00)                                                         (Case C-164/00)
                          (2000/C 192/16)                                                         (2000/C 192/17)
An action against the Federal Republic of Germany was                   Reference has been made to the Court of Justice of the
brought before the Court of Justice of the European Communi-            European Communities by an order of the High Court of
ties on 27 April 2000 by the Commission of the European                 Justice (England & Wales), Queen’s Bench Division, of 1 March
Communities, represented by Götz zur Hausen, Legal Adviser,             2000, which was received at the Court Registry on 5 May
with an address for service in Luxembourg at the office of              2000, for a preliminary ruling in the case of Katia Beckman
Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre           against Dynamco Whicheloe Macfarlane Ltd, on the following
C 254, Kirchberg.                                                       questions:
 ---pagebreak--- C 192/10                EN                     Official Journal of the European Communities                                          8.7.2000
In circumstances where:                                                   viii)The Regulations containing the provisions for the ‘annual
                                                                               allowance’ and the ‘lump sum’ compensation payment
                                                                               were made pursuant to statutory provisions relating to
                                                                               ‘Compensation for loss of office etc.’ and empowering the
i)   An NHS employee, being a member of the NHS Superannu-                     Secretary of State to make regulations for the payment of
     ation Scheme, with five years qualifying service in the                   ‘pensions, allowances or gratuities by way of compen-
     Scheme and aged between 50 and the normal retirement                      sation’.
     age, is entitled to financial benefits following dismissal for
     redundancy.
                                                                          ix) The principal Regulations governing the NHS Superannu-
                                                                               ation Scheme oblige the NHS employer who has dismissed
ii) The benefits consist of:                                                   the employee to make contributions to the Secretary of
                                                                               State to cover the extra costs of the immediate payment of
                                                                               the early retirement pension and retirement lump sum,
                                                                               and the ‘annual allowance’ and ‘lump sum’ compensation.
     (a) early payment of the retirement pension and lump
          sum to which the employee would otherwise have
          become entitled only on reaching normal retirement              x) The undertaking in which the employee works is trans-
          age under that scheme and;                                           ferred to a private company and:
                                                                               (a) The employee’s membership of the NHS Superannu-
     (b) compensation consisting of an annual allowance and                        ation scheme has ceased, save that the employee has a
          lump sum compensation calculated by reference to the                     right to superannuation benefits from the scheme
          rate by which the early retirement pension would be                      payable (in the ordinary course of events) at and from
          increased if a specified further period of reckonable                    normal retirement age.
          years were added to the employee’s actual reckonable
          years.
                                                                               (b) The private company (not being an NHS employer)
                                                                                   cannot make payments to the NHS Superannuation
                                                                                   Scheme in order to enhance the employee’s benefits
iii) The entitlement to the benefits has been agreed between                       from that Scheme.
     NHS employers and recognised trades unions and recorded
     in a collective agreement, the terms of which are set out in
     the conditions of service for the employee’s post.                   xi) The private company then dismisses the employee for
                                                                               redundancy.
iv) There is provision in that collective agreement for it to be               1. Is the employee’s entitlement to early payment of
     implemented by secondary legislation in the form of                           pension and retirement lump sum and/or to the annual
     Regulations approved by the UK Parliament and it is so                        allowance and lump sum compensation, a right to an
     implemented.                                                                  old-age, invalidity or survivors’ benefit within the
                                                                                   meaning of Article 3.3 of Council Directive
                                                                                   77/187/EEC? (1);
v) The benefits are provided to the employee by the Secretary
     of State pursuant to such Regulations.                                    2. If and to the extent that the answer to Question 1. is
                                                                                   ‘no’, is there an obligation of the transferor arising
                                                                                   from the contract of employment, the employment
vi) The collective agreement confirmed existing arrangements                       relationship or the collective agreement within the
     within the NHS for premature retirement with immediate                        meaning of Article 3.1 and/or 3.2 which transfers by
     payment of superannuation benefits and ‘compensation’                         reason of the transfer of the undertaking and renders
     following dismissal for redundancy and in the interests of                    the transferee liable to pay the benefits to the employee
     the efficiency of the service, but altered the provisions as                  upon dismissal?
     to the further reckonable years to be used in the calculation
     of the ‘annual allowance’ and ‘lump sum compensation’
     and extended eligibility to those in a further category of
     efficiency dismissal.                                                (1) of 14 February 1977 on the approximation of the laws of the
                                                                              Member States relating to the safeguarding of employees’ rights
                                                                              in the event of transfers of undertakings, businesses or parts of
                                                                              businesses (OJ L 61, 05.03.77, p. 26).
vii) The Regulations in which provision for the early payment
     of retirement pension and lump sum is made are the
     principal regulations governing the NHS Superannuation
     Scheme, which is a statutory scheme outside the UK Social
     Security scheme.