CELEX: C1998/234/41
Language: en
Date: 1998-07-25 00:00:00
Title: Reference for a preliminary ruling from the Landgericht Potsdam by order of that court of 27 April 1998 in the case of Berliner Kindl Brauerei AG against Andreas Siepert (Case C-208/98)

25.7.98                 EN                 Official Journal of the European Communities                                C 234/21
     naturally used predominantly by goods vehicles in                Reference for a preliminary ruling from the Landesarbeits-
     regional and local traffic, registered in Austria. For           gericht (Regional Labour Court) Mecklenburg-Vorpom-
     traffic on those part sections, significantly, there has         mern by order of that court of 16 April 1998 in the case of
     not even been an adjustment for inflation.                        Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern
                                                                                             (Case C-207/98)
                                                                                              (98/C 234/40)
     There is also an indirect difference of treatment on
     grounds of the nationality of the carrier in the fact
     that the two toll increases together apply only to
     goods vehicles of more than three axles, whereas for
     goods vehicles of up to three axles no toll increases            Reference has been made to the Court of Justice of the
     have been introduced even for the whole Brenner                  European Communities by an order of the Landesarbeits-
     motorway route, since in the latter category vehicles of         gericht Mecklenburg-Vorpommern of 16 April 1998,
     Austrian registration are clearly dominant. The                  which was received at the Court Registry on 2 June 1998,
     different treatment cannot be justified on the basis of          for a preliminary ruling in the case of Silke-Karin
     greater wear on the roads, since not only the number             Mahlburg v Land Mecklenburg-Vorpommern on the
     of axles but also factors such as the total tonnage in           following question:
     proportion to the number of axles, the axle load and
     the suspension system of the driving axles play a
     decisive role in this respect.
                                                                      Is there unlawful discrimination on grounds of sex within
                                                                      the meaning of Article 2(1) of Directive 76/207/EEC of
                                                                      9 February 1976 (1) where an employer does not employ
     Finally, the Brenner motorway toll system also                   an applicant in a vacant post, which she is qualified to
     indirectly differentiates according to the origin and            hold, because she is pregnant and cannot from the outset
     destination of goods vehicles. The imposition of quite           and for the duration of her pregnancy be employed in the
     disproportionately high tolls on the whole route as              post, which is intended to be occupied permanently,
     opposed to the part sections affects especially transit          because of a prohibition on employment under the
     traffic, that is, traffic whose origin and destination are       Mutterschutzgesetz (Maternity Law)?
     both outside Austria. The converse applies to the
     exemption from the toll increase of goods vehicles of
                                                                      (1) OJ L 39 of 14.2.1976, p. 40.
     not more than three axles.
Ð Infringement of Article 7(h) of the directive: Under
     Article 7(h) of the directive, toll increases must be
     related to increased costs of the toll roads themselves.
     In the present case this is quite evidently the case only
     to a very limited extent. The operating company's                Reference for a preliminary ruling from the Landgericht
     expenditure on the Brenner motorway, according to                Potsdam by order of that court of 27 April 1998 in the
     information from the Austrian Government, has partly             case of Berliner Kindl Brauerei AG against Andreas
     fallen considerably in recent years, yet in the same                                          Siepert
     period markedly higher toll income has been received.
                                                                                             (Case C-208/98)
     The      Austrian      Government      wrongly    adduces
     expenditure by the financing company ASFINAG for                                         (98/C 234/41)
     other motorways and expressways in Austria. The
     term network' in Article 7(h) of the directive, in the
     context of the provisions relating to tolls, can only
     mean those roads for whose use tolls are lawfully
     charged. Since Austria levies a general user charge for          Reference has been made to the Court of Justice of the
     motor vehicles with a maximum permitted weight of                European Communities by order of the Landgericht
     not less than 12 tonnes (fourth indent of Article 2 of           Potsdam (Regional Court, Potsdam) of 27 April 1998,
     the directive), that means in the present case only the          received at the Court registry on 2 June 1998, for a
     Brenner motorway itself, in so far as it is to be                preliminary ruling in the case of Berliner Kindl Brauerei
     regarded as a series of bridges, tunnels and mountain           AG v Andreas Siepert on the following question:
     passes'.
(1) OJ L 279 of 12.11.1993, p. 32.                                    Does a contract of guarantee concluded by a natural
(2) [1995] ECR I-1827.                                                person not acting in the course of a trade or profession
                                                                      fall within the scope of Council Directive 87/102/EEC of
                                                                      22 December 1986 for the approximation of the laws,
                                                                      regulations and administrative provisions of the Member
                                                                      States concerning consumer credit (OJ L 42 of 12.2.1987,
 ---pagebreak--- C 234/22              EN                 Official Journal of the European Communities                                    25.7.98
p. 48) if it serves to secure the repayment of a debt which                   system as described in Question 1(a) to be
the principal debtor did not incur in the course of a trade                   established, where that system and the obligation
or profession already being pursued by him?                                   for waste producers to use the system are based
                                                                              on the interest in promoting recovery of the waste
                                                                              covered by the system, including the interest in
                                                                              ensuring necessary treatment capacity?
Reference for a preliminary ruling by the éstre Landsret            2. Must Article 10 of Directive 75/442/EEC, as amended
by order of 27 May 1998 in the case of FFAD Ð                            by Directive 91/156/EEC (see Articles 13 and 2(j) of
Entreprenùrforeningens Affalds/Miljùsektion, acting on                   Regulation (EEC) No 259/93), be construed as
behalf of Sydhavnens Sten & Grus ApS v The Commune                       meaning that public authorities are under an
of Copenhagen, Fifth Section of the Communal Authority                   obligation to treat equally undertakings which have
                  Ð Environmental Control                                obtained a permit as described in that provision in
                       (Case C-209/98)                                   relation to the conclusion of agreements concerning
                                                                         the receipt and recovery of environmentally non-
                         (98/C 234/42)                                   hazardous building waste?
Reference has been made to the Court of Justice of the
European Communities by order of 27 May 1998 from                   3. (a) Must Article 7(3) of Directive 75/442/EEC, as
the éstre Landsret (Eastern Regional Court), which was                        amended by Directive 91/156/EEC, be construed
received at the Court Registry on 8 June 1998, for a                          as meaning that that provision and the power it
preliminary ruling in the case of FFAD Ð                                      grants to prevent movements of waste allow a
Entreprenùrforeningens Affalds/Miljùsektion, acting on                        communal system such as that described in
behalf of Sydhavnens Sten & Grus ApS v The Commune                            Question 1(a) and thereby allow the commune to
of Copenhagen, Fifth Section of the Communal Authority                        prevent the movement of environmentally non-
Ð Environmental Control on the following questions:                           hazardous building waste destined for recovery, if
                                                                              such movement is contrary to the waste plan
1. (a) Disregarding possible application of Article 36 of                     drawn up by the commune?
         the Treaty or any other valid considerations (see
         Question 1(c)), must Article 90 of the Treaty, in
                                                                         (b) Must Article 7(3) of Directive 75/442/EEC, as
         conjunction with Articles 34 and 86 thereof, be
                                                                              amended by Directive 91/156/EEC, be construed
         construed as precluding the establishment of a
                                                                              as meaning that measures which a Member State
         communal system which Ð with a view to
                                                                              or a competent authority in that Member State
         ensuring that specially selected undertakings will
                                                                              has adopted, and which are necessary to prevent
         have sufficiently large access to environmentally
                                                                              movements of waste not in accordance with the
         non-hazardous building waste destined for
                                                                              waste plans of the authority, are valid and
         recovery from private builders to enable those
                                                                              enforceable against individuals or undertakings to
         undertakings to exploit that waste on an
                                                                              which the measures are relevant only if the EC
         economically justifiable and rational basis Ð
                                                                              Commission has been notified of those measures?
         excludes other undertakings from collecting and
         receiving the same type of waste from building
         work within the area of the commune in question,           (1) Council Directive of 75/442/EEC 15 July 1975 on waste
         even though these other undertakings have                      (OJ L 194 of 25.7.1975, p. 39).
         obtained a permit to treat the type of waste in            (2) Council Directive of 18 March 1991 (OJ L 78 of 26.3.1991,
                                                                        p. 32).
         question in accordance with Article 10 of
         Directive 75/442/EEC (1), as amended by Directive
         91/156/EEC (2)?
    (b) (If Question 1(a) is answered in the affirmative):
         Would a system such as that described in
         Question 1(a) be contrary to Article 90 of the EC          Action brought on 9 June 1998 by the Commission of the
         Treaty, in conjunction with Articles 34 and 86                         European Communities against Ireland
         thereof, if the communal provision forming the
                                                                                            (Case C-212/98)
         basis of that system provides that waste which is
         exported or imported is not covered by the                                          (98/C 234/43)
         communal system mentioned in Question 1(a)?
    (c) (If Question 1(a) is answered in the affirmative):
                                                                    An action against Ireland was brought before the Court of
         Does Article 36 of the Treaty or any other valid           Justice of the European Communities on 9 June 1998
         considerations, such as the concern that                   by the Commission of the European Communities,
         environmental damage should be rectified at                represented by Karen Banks, a member of its Legal
         source and the establishment of any necessary              Service, with an address for service in Luxembourg at the
         treatment      and     disposal    facilities    (see      office of Mr Carlos Gómez de la Cruz, a member of its
         Article 130r(2) of the Treaty), allow a communal           Legal Service, Centre Wagner, Kirchberg, Luxembourg.