CELEX: C2001/173/43
Language: en
Date: 2001-06-16 00:00:00
Title: Cases C-138/01 and C-139/01: Reference for a preliminary ruling by the Oberster Gerichtshof der Republik Österreich, by orders of 28 February and 14 February 2001 in the cases of Christa Neukomm against Österreichischer Rundfunk and Josef Lauermann against Österreichischer Rundfunk

16.6.2001              EN                    Official Journal of the European Communities                                       C 173/25
           mean exclusively the European Community’s own                Reference for a preliminary ruling by the Employment
           legislation? Or may national legislation too, such as        Tribunal (Leeds), by order of that court of 12 January
           certain provisions of the Kaivoslaki and the Jätease-        2001, in the case of 1) Mr P. Breckon 2) Mr M. Barrett
           tus in force in Finland, be ‘other legislation’ within                against Secretary of State for Employment
           the meaning of the Waste Directive?
                                                                                                 (Case C-137/01)
      (b) If ‘other legislation’ means also national legislation,
           does that mean exclusively national legislation
           which was already in force at the time of entry into                                  (2001/C 173/42)
           force of the Waste Directive 91/156/EEC or also
           that only enacted afterwards?
                                                                        Reference has been made to the Court of Justice of the
      (c)  If ‘other legislation’ means also national legislation,      European Communities by an order of the Employment
           do fundamental European Community provisions                 Tribunal (Leeds) of 12 January 2001, which was received at
           relating to environmental protection or the prin-            the Court Registry on 27 March 2001, for a preliminary ruling
           ciples of the Waste Directive set requirements for           in the case of 1) Mr P. Breckon 2) Mr M. Barrett against
           national legislation concerning the level of environ-        Secretary of State for Employment, on the following question:
           mental protection as a condition for disapplying
           the rules of the Waste Directive? What sort of
                                                                        ‘Are the requirements of Directive 80/987 (1) fully satisfied by
           requirements could those be?
                                                                        rules of national law which may result in a claim relating to
                                                                        holiday pay against the Guarantee Institution being dismissed
(1) OJ L 194 of 25.7.1975, p. 39.
                                                                        owing to unforeseen delay in bringing about a state of
(2) OJ L 78 of 26.3.1991, p. 32.                                        insolvency in the employer, which delay was caused by the
                                                                        employer?’
                                                                        (1) Council Directive 80/987/EEC of 20 October 1980 on the
                                                                            approximation of the laws of the Member States relating to the
                                                                            protection of employees in the event of the insolvency of their
                                                                            employer (OJ L 283, 28.10.1980, p. 23).
Reference for a preliminary ruling by the Tribunale di
Bologna by order of that court of 20 February 2001 in
the case of Condominio ‘Facchini Orsini’ against Kone
                          Ascensori SpA
                         (Case C-129/01)
                         (2001/C 173/41)                                Reference for a preliminary ruling by the Oberster
                                                                        Gerichtshof der Republik Österreich, by orders of
                                                                        28 February and 14 February 2001 in the cases of Christa
Reference has been made to the Court of Justice of the                  Neukomm against Österreichischer Rundfunk and Josef
European Communities by order of the Tribunale di Bologna                      Lauermann against Österreichischer Rundfunk
of 20 February 2001, received at the Court Registry on
21 March 2001, for a preliminary ruling in the case of
Condominio ‘Facchini Orsini’ against Kone Ascensori SpA on                              (Cases C-138/01 and C-139/01)
the following question:
                                                                                                 (2001/C 173/43)
‘For the purposes of application of the provisions contained in
Council Directive 93/13/EEC (1) of 5 April 1993 on unfair
terms in consumer contracts published in Official Journal               Reference has been made to the Court of Justice of the
1993 L 95, can the co-ownership of buildings referred to in             European Communities by orders of the Oberster Gerichtshof
Articles 1117-1139 of the Civil Code be regarded as a                   der Republik Österreich of 28 February and 14 February 2001,
consumer where the individual owners are natural persons or             received at the Court Registry on 27 March 2001, for a
are acting for purposes outside their trade, business or                preliminary ruling in the cases of Christa Neukomm against
profession?’                                                            Österreichischer Rundfunk and Josef Lauermann against Öster-
                                                                        reichischer Rundfunk on the following questions:
(1) OJ L 95 of 21.4.1993, p. 29.                                        1.    Are the provisions of Community law, in particular those
                                                                              on data protection (Articles 1, 2, 6, 7 and 22 of Directive
                                                                              95/46/EC (1) in conjunction with Article 6 (formerly
                                                                              Article F) of the Treaty on European Union and Article 8
 ---pagebreak--- C 173/26                EN                   Official Journal of the European Communities                                      16.6.2001
      of the ECHR), to be interpreted as precluding national                  (b) in the case of undertakings declared in a state of ‘crisi
      rules which require a public broadcasting corporation, as                     aziendale’ (economic crisis), they do not provide, for
      a legal entity, to communicate, and a State body to collect                   the transfer of the workforce and of the debts arising
      and pass on, data on income for the purpose of publishing                     from an employment contract or relationship from
      the names and income of employees of a broadcasting                           the transferor to the transferee,
      corporation governed by public law?
                                                                              the Italian Republic has failed to fulfil its obligations
                                                                              under Council Directive 77/187/EEC (1) of 14 February
2.    If the Court of Justice of the European Communities rules               1977 on the approximation of the laws of the Member
      that the answer to the above question is in the affirmative:            States relating to the safeguarding of employees’ rights in
      Are the provisions precluding national rules of the kind                the event of transfers of undertakings, businesses or parts
      described above directly applicable, in the sense that a                of businesses, and in particular Articles 3 and 4 thereof;
      corporation obliged to disclose data may rely on them to
      prevent the application of conflicting national rules,
      and may not therefore raise, as against the employees             —     Order the Italian Republic to pay the costs.
      concerned by the disclosure, the fact that it is bound to
      comply with national rules?
                                                                        Pleas in law and main arguments
(1) OJ 1995 L 281, p. 31.                                               Article 47(5) and (6) of Law No 428 of 1990 provides for the
                                                                        non-application of the rules laid down by Directive 77/187, in
                                                                        the following circumstances:
                                                                        (a)   the undertaking concerned falls into one of the following
                                                                              categories:
                                                                              —     undertaking or production unit in respect of which
                                                                                    the Comitato Interministeriale per la Politica Indus-
                                                                                    triale (Inter-ministerial committee on industrial pol-
                                                                                    icy — CIPI) has declared a state of economic crisis
                                                                                    in terms of Law No 675 of 1977;
Action brought on 29 March 2001 by the Commission of
  the European Communities against the Italian Republic                       —     undertaking in bankruptcy;
                                                                              —     undertaking which has been the subject of a deed of
                          (Case C-145/01)                                           arrangement involving the transfer of goods;
                                                                              —     undertaking whose liquidation has been made
                          (2001/C 173/44)                                           public;
                                                                              —     undertaking under extraordinary liquidation;
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 29 March
2001 by the Commission of the European Communities,                     (b) an agreement has been concluded between workers’
represented by Antonio Aresu, acting as Agent.                                representatives and the employers, with regard to changes
                                                                              to working conditions or maintaining partial employ-
                                                                              ment.
The applicant claims that the Court should:
                                                                        The Commission takes the view that Italy lawfully disapplied
                                                                        Directive 77/187 in respect of undertakings declared bankrupt
—     Declare that, by failing maintaining in force the provisions      and those in liquidation. On the other hand, the derogation
      in Article 47(5) and (6) of Law No 428 of 29 December             for deeds of arrangement, extraordinary liquidation and the
      1990, in so far as they:                                          declaration of a state of economic crisis appear to be clearly
                                                                        contrary to Community law and the case-law of the Court of
                                                                        Justice.
      (a)   provided for the non-application of the automatic
            transfer of all employment contracts or relationships
            from the transferor to the transferee, in the case of       Directive 77/187 makes no provision for exemption from the
            undertakings which have been the subject of a deed          full effect of its provisions in respect of undertakings which
            of arrangement involving the transfer of goods or in        have been the subject of a deed of arrangement involving the
            cases of undertakings under extraordinary liqui-            transfer of goods or which are subject to extraordinary
            dation, where the undertakings themselves continue          administration, despite the Italian authorities views to the
            to carry on business after transfer;                        contrary.