CELEX: C2003/226/08
Language: en
Date: 2003-09-20 00:00:00
Title: Case C-297/03: Reference for a preliminary ruling by the Oberster Gerichtshof by order of that Court of 4 June 2003 in the case of Sozialhilfeverband Rohrbach against Arbeiterkammer Oberösterreich and Österreichischer Gewerkschaftsbund, Gewerkschaft öffentlicher Dienst

C 226/6                EN                         Official Journal of the European Union                                         20.9.2003
Reference for a preliminary ruling by the Oberster                         Reference for a preliminary ruling by the Hessisches
Gerichtshof by order of that Court of 4 June 2003                          Finanzgericht by order of that Court of 25 April 2003 in
in the case of Sozialhilfeverband Rohrbach against                         the case of Honeywell Aerospace GmbH against
Arbeiterkammer Oberösterreich and Österreichischer                                     Hauptzollamt Gießen — Fulda Office
  Gewerkschaftsbund, Gewerkschaft öffentlicher Dienst
                                                                                                   (Case C-300/03)
                          (Case C-297/03)
                                                                                                   (2003/C 226/09)
                         (2003/C 226/08)
                                                                           Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                     European Communities by order of the Hessisches
European Communities by order of the Oberster Gerichtshof                  Finanzgericht (Hessian Finance Court) of 25 April 2003,
(Supreme Court) of 4 June 2003, received at the Court Registry             received at the Court Registry on 11 July 2003, for a prelimi-
on 10 July 2003, for a preliminary ruling in the case of                   nary ruling in the case of Honeywell Aerospace GmbH against
Sozialhilfeverband       Rohrbach against Arbeiterkammer                   Hauptzollamt Gießen — Fulda Office — on the following
Oberösterreich and Österreichischer Gewerkschaftsbund,                     questions:
Gewerkschaft öffentlicher Dienst on the following questions:
1.   Is a limited liability company governed by private law,               1.   Is a customs debt deemed, under Article 215(2) or the first
     whose sole shareholder is a social assistance association                  indent of Article 215(3) of Council Regulation (EEC)
     governed by public law (local authority association) and                   No 2913/92 (1), as applicable until 9 May 1999, to have
     which has been entrusted with tasks of a private sector                    been incurred at the place where the customs authorities
     authority (social assistance by way of the operation of a                  conclude that the goods are in a situation in which a
     workplace for disabled persons), nevertheless still to be                  customs debt is incurred (Article 215(2)) or at the place
     regarded as a ‘State entity’, with the effect that Article 3               where the goods were placed under the customs procedure
     (1), in conjunction with Article 1(1)(c), of Council                       [which is not discharged] (first indent of Article 215(3))
     Directive 77/187/EEC (1), as amended by Council                            even if a consignment placed under the external
     Directive 98/50/EC (2) (now Council Directive 2001/23/EC),                 Community transit procedure is not presented at the office
     which was not correctly transposed into national law, is                   of destination and the place where the offence or irregu-
     directly applicable against it if, under a contract of transfer,           larity occurred cannot be established, but the customs
     which is subject only to the agreement of the association's                authorities have failed, contrary to the last part of
     board, the social assistance association's shareholding is to              Article 378(1) and the first sentence of Article 379(2) of
     be transferred to a purely private limited liability company?              Commission Regulation (EEC) No 2454/93 (2), as appli-
                                                                                cable until 30 June 2001, to indicate in the notification
                                                                                under Article 379(1) of that regulation the time-limit by
     If the answer to the first question is in the affirmative:                 which proof must be furnished to the office of departure of
                                                                                the regularity of the transit operation or the place where
                                                                                the offence or irregularity was actually committed?
2.   As a ‘State entity’ within the meaning of the case-law of the
     Court of Justice of the European Communities, can a social
     assistance association (local authority association) which
     transfers its operations itself rely on the direct application        2.   If Question 1 is to be answered in the affirmative:
     of Article 3(1), in conjunction with Article 1(1)(c), of the
     Directive referred to in Question 1 against its employees,
     who are contesting the transfer of their employment con-
     tracts to a transferee (within the meaning of Question 1)                  Does the recovery of duty by the competent customs
     and who insist that their employment relationship with the                 authority under the third sentence of Article 379(2) of
     transferor continues to exist, where the provision of the                  Regulation (EEC) No 2454/93, as applicable until 30 June
     Directive referred to in Question 1 has not been correctly                 2001, require the customs authorities to have indicated in
     transposed, with the effect that the employment contracts                  the notification under Article 379(1) of that regulation the
     are deemed to have been transferred to the transferee? In                  time-limit by which proof must be furnished to the office
     that connection, is it material that the transferor ‘State                 of departure of the regularity of the transit operation or
     entity’ has no legislative competence to transpose a direc-                the place where the offence or irregularity was actually
     tive into national law, that competence lying with a                       committed?
     superior legislative body (the Land)?
(1) OJ L 61 [1977], p. 26.                                                 (1) OJ L 302 [1992], p. 1.
(2) OJ L 201 [1998], p. 88.                                                (2) OJ L 253 [1993], p. 1.