CELEX: C1997/094/07
Language: en
Date: 1997-03-22 00:00:00
Title: Action brought on 30 December 1996 by the Kingdom of Spain against the Commission of the European Communities (Case C-415/96)

22 . 3 . 97            EN                   Official Journal of the European Communities                                  No C 94/3
      92/42/EEC of 21 May 1992 on efficiency requirements              Reference for a preliminary ruling from the Sozialgericht
     for new hot-water boilers fired with liquid or gaseous            Hamburg by order of that court of 31 July 1996 in the
     fuels, the Kingdom of Belgium has failed to fulfil its            case of Mechthild Kehrl v. Allgemeine Ortskrankenkasse
      obligations under Article 9 (1 ) of that Directive;              Hamburg (interested third party: Bundesanstalt fur Arbeit)
                                                                                                  Case C-414/96)
2 . orders the Kingdom of Belgium to pay the costs.                                                ( 97/C 94/06 )
(') OJ No C 247, 24 . 8 . 1996 .
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by an order of the 22nd Chamber
                                                                       of the Sozialgericht ( Social Court) Hamburg of 31 July
                                                                       1996, which was received at the Court Registry on
                                                                       30 December 1996, for a preliminary ruling in the case of
                                                                       Mechthild Kehrl v. Allgemeine Ortskrankenkasse Ham­
                   ORDER OF THE COURT                                  burg (interested third party: Bundesanstalt fur Arbeit) on
                         (First Chamber)
                                                                       the following questions :
                      of 21 January 1997                               ( a ) Does the exclusion of male and female workers
in Case C-156/96 P: Calvin Williams v. Court of Auditors                     employed for less than 18 hours a week from the
               of the European Communities (')                               compulsory statutory unemployment insurance scheme
                                                                             constitute indirect discrimination contrary to Article 4
(Appeal — Officials — Obligations — Acts incompatible                        of Directive 79/7/EEC ( J ), if disproportionately more
with the dignity of the official's office — Duty of loyalty                  women than men are affected by that exclusion;
     — Disciplinary proceedings — Removal from post)
                           ( 97/C 94/05 )                              ( b ) Does the exclusion of male and female workers
                                                                             employed for less than 18 hours a week from the
                 (Language of the case: French)                              compulsory statutory unemployment insurance scheme
                                                                             constitute indirect discrimination contrary to Article 4
                                                                             of Directive 79/7/EEC, if a worker has several
  (Provisional translation; the definitive translation will be               employment contracts which together amount to
           published in the European Court Reports)                          more than 90 % of full-time employment, and if
                                                                             disproportionately more women than men are affected
                                                                             by that exclusion ?
In Case C-156/96 P: Calvin Williams, a former official of
the Court of Auditors of the European Communities,                     (') OJ No L 6 , 10 . 1 . 1979 , p. 24 .
residing in Luxembourg, represented by Eric Boigelot, of
the Brussels Bar, with an address for service in
Luxembourg at the Chambers of Louis Schiltz, 2 rue du
Fort Rheinsheim — appeal against the judgment of the
Court of First Instance of the European Communities
( Fifth Chamber ) of 7 March 1996 in Case T-146/94
Calvin Williams v. Court of Auditors [ 1996] ECR-SC II­                Action brought on 30 December 1996 by the Kingdom
329, seeking to have that judgment set aside — the other               of Spain against the Commission of the European
                                                                                                   Communities
party to the proceedings being: Court of Auditors of the
European Communities, represented by Jean-Marie                                                   Case C-415/96 )
Stenier, Jan Inghelram and Paolo Giusta, of the Legal                                              ( 97/C 94/07)
Service, acting as Agents, with an address for service in
Luxembourg at the seat of the Court of Auditors, 12 rue
Alcide de Gasperi, Kirchberg — the Court ( First                       An action against the Commission of the European
Chamber), composed of: L. Sevon, President of the                      Communities was brought before the Court of Justice of
Chamber, P. Jann ( Rapporteur) and M. Wathelet, Judges;                the European Communities on 30 December 1996 by the
A. La Pergola, Advocate-General; R. Grass, Registrar,                  Kingdom of Spain, represented by Luis Perez de Ayala Be­
made an order on 21 January 1997, the operative part of                cerril, Abogado del Estado, of the State Legal Department
which is as follows :
                                                                       dealing with matters before the Court of Justice, acting as
                                                                       Agent, with an address for service in Luxembourg at the
1 . the appeal is dismissed;                                           Spanish Embassy, 4—6 Boulevard E. Servais.
                                                                       The applicant claims that the Court should:
2 . the appellant is ordered to pay the costs.
W OJ No C 180 , 22 . 6 . 1996 .
                                                                       1 . declare null and void the decision adopted by the
                                                                             Commission of the European Communities on
                                                                             18 September 1996 amending Decision 317/92/EEC (*)
                                                                             of 25 March 1992;
 ---pagebreak--- No C 94/4              1 EN 1                  Official Journal of the European Communities                                        22. 3 . 97
2. order the Commission to pay the costs.                                 Court), Genoa — Sesta Sezione Civile ( Civil Division VI)
                                                                          — of 14 December 1996, received at the Court Registry
Pleas in law and main arguments adduced in support:                       on 3 January 1997, for a preliminary ruling in the case of
                                                                          Italiana Petroli SpA against Borsana Sri on the following
— Infringement of Articles 93 and 174 of the EC Treaty                    questions :
So far as concerns the State aid of Pta 4 200 million which
the Directorate-General of the Patrimonio del Estado                      ( a ) On a proper construction of Articles 3 , 4 and 5 of
provided by way of a capital injection (Article 2 of                            Directive 90/394/EEC ( J ) of 28 June 1990 on the
Decision 92/317/EEC), the only thing which remains in                           protection of workers from the risks related to
force after the judgment delivered by the Court on                              exposure to carcinogens at work ( Sixth individual
14 September 1994 (2) is the characterization of that aid                       Directive ), is the obligation to adopt measures to
as unlawful, such unlawfulness deriving from the fact that                      reduce and replace the risk, and to avoid or reduce
it was not notified to the Commission. That aspect cannot                       exposure to carcinogens, contingent on the outcome of
be interpreted as indicating that Decision 92/317/EEC was                       the ' assessment of risks ' referred to in Article 3 ?
not annulled. The essential content of that Decision,
namely the fact that it declares the aid to be incompatible
with Community law with all the consequences resulting                          If so, does Directive 90/394/EEC preclude a national
therefrom, was annulled by the judgment. Accordingly, the                       implementing provision which provides that the
present case does not concern a 'partial' annulment of                          employer is under a duty to take action to replace or
Decision 92/317/EEC with regard to that aid; that                               reduce, in so far as is 'technically possible', the use of
annulment can, on the contrary, be described as total . The                     carcinogens and/or to reduce the level of exposure of
annulment        is  'communicated '      to  the   whole   of   the
                                                                                workers 'to as low a level as is technically possible',
preparatory acts taken by the Commission, so that it                            whether or not a definite risk has first been found to
should have initiated a fresh procedure under Article 93                        exist and duly assessed under Article 3 of the
(2 ) of the EC Treaty, rather than sought, because it was to                    Directive, and which imposes, in the event of failure to
its advantage, to correct a posteriori certain acts affected                    fulfil those obligations, criminal penalties — including
by the annulment.                                                               custodial sentences — which, as worded, do not differ
                                                                                from those provided for cases where, despite the fact
— Breach of the rights of the defence and of the principle                      that a definite risk has been found to exist and duly
       of legal certainty                                                       quantified, the employer fails to adopt the measures
                                                                                prescribed by law ?
By preventing the Kingdom of Spain from submitting new
observations as to the compatibility of the aid it had
granted to Hytasa with the common market, the                             ( b) Does Community law as laid down by Article 4 of
Commission breached the principle of audi alteram                               Directive 89/655/EEC (2 ) (in so far as it distinguishes,
partem and breached the rights of the defence to which all                      in terms of the periods allowed for adapting work
Member States are entitled whose conduct is called in
                                                                                equipment, between equipment already provided to
question. Since it considered that in its judgment of                           workers by 31 December 1992 and that provided after
14 September 1994 the Court had merely annulled in part                         that date) preclude a national implementing provision
Decision 92/317/EEC and that it was sufficient to replace                       which, arguably in contravention of the principles of
it with another one in order to bring the procedure to an                       reasonableness and proportionality, makes no such
end, the Commission sent a letter on 13 October 1995 to                         distinction and sets a uniform period of three months
the Spanish authorities to inform them, essentially, that                       for its entry into force for all intents and purposes
the effect of the new decision was practically decided                           ( even where the employer is subject to harsh criminal
already and that nothing they could say or do would be of                       penalties )?
any effect.
f 1 ) OJ No L 171 , 26 . 6 . 1992 .
(2 ) Joined Cases C-278 , C-279 and            C-280/92,   Spain   v.     ( c ) On a proper construction of Articles 3 , 4 and 5 of
      Commission [ 1994] ECR I, p. 4103 .                                       Directive 90/394/EEC ( and of the corresponding
                                                                                article in Legislative Decree 626/94 implementing that
                                                                                measure ), are employers — and, respectively, the other
                                                                                persons referred to in Article 6 of Legislative Decree
                                                                                 626/94 — subject to obligations and responsibilities
                                                                                regarding the reduction of the benzene content in
Reference for a preliminary ruling by the Tribunale di                          petrol to levels lower than those set by Directive 85/
Genova — Sesta Sezione Civile, by order of that court of                        210/EEC ( 3 ) and to the even lower levels set by Decree
                                                                                Law No 294/96 ?
14 December 1996 in the case of Italiana Petroli (IP) SpA
                         against Borsana Sri
                             ( Case C-2/97)                               C ) OJ No L 196, 26 . 7 . 1990, p. 1 .
                                                                          (2 ) OJ No L 393 , 30. 12 . 1989, p . 13 .
                               ( 97/C 94/08 )                             ( 3 ) OJ No L 96, 3.4 . 1985 , p. 25 .
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale ( District